IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Heera Lal & Others Vs. State of Rajasthan (D.B. Criminal Appeal No.1473/2002) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 3-10-2002 in Sessions Case No.253/2001 passed by Shri Govind Prasad Goyal, RHJS, Additional Sessions Judge (Fast Track) No.1, Bundi. Date of Judgment: January 23, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. A.K.Gupta ] for the appellants. Mr. Rinesh Gupta ] Mr. Harsh Saini ] Mr. Vaibhav Gehlot] Ms. Sunita Khatri ] Mr. Ashwini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Challenge in this appeal is to the judgment dated October 3, 2002 of the learned Additional Sessions Judge (Fast Track) No.1 Bundi, whereby the appellants, five in number, were convicted and sentenced as under:- Ram Kalyan and Brij Sunder u/s.302 IPC and Heera Lal, Sita Ram, Daya Ram and Lala: U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer simple imprisonment for three months. U/s.148 IPC: Each to suffer simple imprisonment for one year and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. U/s.323 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs.500/-, in default to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that Chanda Ram ASI Police Station K.Patan (Pw.23) on August 13, 1991 at 3.30 PM recorded parcha bayan (Ex.P-3) of injured Gajraj Singh (Pw.3) at Govt. Hospital, wherein he stated that on the said day around 12- 12.30 PM while he along with Akheraj and Dheer Singh were going to the field and reached near Gopalji temple, they were belaboured by Suraj Prakash, Brij Sunder, Onkar, Heera Lal, Ram Kalyan, Lala and Daya Ram, who were armed with Gandasi, Ballam, Dharia and lathis. Blows were inflicted by Suraj Prakash with dharia, Brij Sunder with Ballam and Ram Kalyan with lathi on the head of Akheraj Singh, as a result of which Akheraj Singh fell down and blood started oozing out. Dheer Singh was given beating by Suraj Prakash, Brij Sunder, Lala, Onkar and others. Injured Gajraj Singh was also received injuries while he made attempt to intervene. The incident was witnessed by Shambhu Goswami, Dwarka Lal Koli and Shiv Raj Singh. While injured were taken to the hospital, Akheraj Singh succumbed to his injuries on the way. On that Parcha Bayan case under sections 302, 307, 323, 147, 148 and 149 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Bundi. Charges under sections 302, 302/149, 148, 307, 326, 307/149 and 323 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. Having given our anxious consideration to the submissions advanced before us we notice that death of Akheraj Singh was homicidal in nature. A look at Post Mortem Report (Ex.P-1) reveals that following ante mortem injuries were found on the dead body:- 1. Lacerated wound 5” x ¾” x bone deep in mid segital plain on anterior parietal region. 2. Lacerated wound 2” x ¾” x bone deep oblique on Rt. anterior parietal region of head. 3. Lacerated wound 2” x ¾” x bone deep on Rt. lateral parietal region. In the opinion of Dr. Prabhakar Vijay (Pw.9) the cause of death was Coma as a result of head injury. 4. We also notice that Dheer Singh (Pw.21) vide injury report (Ex.P-4) received following injuries:- 1. Incised wound 3.5 x .5 x .5cm above right eye brow. 2. Incised wound 3 x .5 x .5cm above right ear at temporal region. 3. Bruise oblique 11 x 6cm maxillary eminence to temporal region of left side. 4. Bruise 5 x 4cm at right maxillary eminence 5. Abrasion 3 x .5cm at medial aspect of upper part of right forearm. 6. Bruise 6 x 3cm at dorsal aspect of right hand. 7. Incised wound 10 x 3 x 4cm at dorsal aspect of right foot anterior to ankle joint. 8. Incised wound bone deep 5 x 2cm posterior aspect of right ankle joint. 9. Incised wound 7 x 2.5 x 2cm above and lateral to left knee joint. 10. Bruise 11 x 7cm at lateral aspect of upper part of left arm. LW 2.5 x 1 x .5cm 11. Bruise 17 x 2.5cm at lateral aspect of lower part of left side of chest wall. 12. Lacerated wound 1.5 x 1 x .5cm at postero lateral aspect of right elbow. 13. Bruise 9 x 4cm at upper and medial side of right shoulder. 14. Incised wound 6 x 15 x 1cm bone deep at parietal region of right side of skull. 5. Gajraj Singh (Pw.3) vide injury report (Ex.P-5) also received following injuries:- 1. Bruise 2 x 1.5 cm at mid of nose. Lacerated wound .5 x 5 x 5cm 2. Incised wound 5 x 5 x 5cm at upper part of frontal region at mid line. 3. Bruise 7 x 6cm at upper part of anterior aspect of left leg below tibial tubrosity. 4. Bruise 5 x 4cm at lateral aspect of right wrist. 5. C/o pain and tenderness at right shoulder. 6. The prosecution case is founded on the testimony of injured Gajraj Singh (Pw.3), Shiv Raj Singh (Pw.18) and Dheer Singh (Pw.21). In his deposition Gajraj Singh (Pw.3) stated that on the said day around 12-12.30 PM while he was going along with Akheraj Singh and Dheer Singh towards the field, Suraj Prakash, Brij Sunder, Lala, Onkar, Ram Kalyan, Daya Ram, Sita Ram and Heera Lal armed with Lathi, Gandasi, Dharia and Ballam belaboured them near the temple of Gopalji. Brij Sunder inflicted blow with Ballam on the head of Akheraj Singh, whereas Suraj Prakash and Ram Kalyan gave blows with Dharia and lathi on his head. When he (Gajraj) and Dheer Singh tried to intervene Brij Sunder gave blow with Ballam on his head, while Heera Lal gave blows with lathi on legs, nose and hands. 7. Dheer Singh (Pw.21) did not support the prosecution case and he was declared hostile. Shiv Raj Singh (Pw.18) although named the appellants as assailants, could not depose with certainty as to who was responsible for the injuries caused to the deceased. 8. We also notice that Jugraj Singh (Pw.7) had gone to the police station K.Patan at 3.25 PM on August 13, 1991 and gave information about the incident. The information was entered in the Rojnamcha Aam at No.493 (Ex.D-3). Jugraj Singh in his cross examination stated that he had also named the assailants but they did not find place in Ex.D- 3. He further stated that Vijay Raj Singh SHO got the report written and he put his signatures on the report. 9. Fact situation emerges from the material on record may be summarised thus:- (i) FIR allegedly lodged by Jugraj Singh naming the assailants, had been withheld by the Investigating Officer. (ii) Deceased had sustained three lacerated wounds on the head. These injuries were attributed to Suraj Prakash, Ram Kalyan and Brij Sunder. Suraj Prakash died during trial and proceedings against him stood dropped. Blow with Dharia was attributed to Ram Kalyan. Blow with Ballam (spear) although attributed to Brij Sunder, it was not specified as to whether Ballam was thrusted or inflicted from blunt side. (iii) Dr. Prabhakar Vijay (Pw.9) although deposed that cause of death was coma as a result of head injury, he could not give a satisfactory answer whether the three injuries on the head individually were sufficient in the ordinary course of nature to cause death. (iv) The whole occurrence started at the spur of moment, there was a verbal quarrel which resulted in fighting. 10. On analysing the evidence adduced at the trial from the point of view of trustworthiness and in view of the fact that FIR was withheld, we find that possibility of over implication of appellants Heera Lal, Sita Ram, Daya Ram and Lala cannot be ruled out. Since no injury caused by spear was found on the head of the deceased, we grant benefit of doubt to appellant Brij Sunder. 11. Coming to the injury attributed to appellant Ram Kalyan, as we already noticed, it could not be established that it proved to be fatal. In a similar situation, the Apex Court in Amrik Singh Vs. State of Punjab (1994 Supp.(1) SCC 320) indicated that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased). Autopsy Surgeon found a lacerated wound on the scalp and incised on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal Singh was convicted under section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment. 12. Since the injury attributed to appellant Ram Kalyan cannot by itself sufficient in the ordinary course of nature to cause death, Ram Kalyan can be held guilty under section 325 IPC. 13. For these reasons, we dispose of instant appeal in the following terms:- (i) We allow the appeal of Brij Sunder and acquit him of the charges under sections 302, 148 and 323 IPC. Appellant Brij Sunder, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of appellants Heera Lal, Sita Ram, Daya Ram and Lala and acquit them of the charges under sections 302/149, 148 and 323 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) We partly allow the appeal of appellant Ram Kalyan and instead of section 302 we convict him under section 325 IPC and sentence him to suffer imprisonment for seven years. He is however acquitted of the charges under sections 148 and 323 IPC. (iv) The impugned judgment of learned trial court stands modified as indicated above. (R.S.Chauhan),J. (Shiv Kumar Sharma)J. arn/