S.S. Byas, J.
1. This joint appeal by accused Poosaram, Kojaram and Deeparam is directed against the judgment of the learned Sessions Judge, Jodhpur dated July 16, 1977 convicting the appellants under Section 304 Part II read with Section 34, IPC and sentencing each of them to five years rigorous imprisonment.
2. Put briefly the prosecution case is as follows:
Accused Kojaram and Deeparam are the real brothers, while accused Poosaram is the son of accused Kojaram. They are residents of village Baru P.S. Bap, District Jodhpur. The deceased-victim Bhakhraram aged about 20 years was also a resident of this village. He was related to them at some distance. But the relations between them were not happy. A few days before the occurrence, accused Poosaram had lodged report Ex. D/1 against the deceased-victim and some other persons at police station, Bap for an offence under Section 323, I.P.C. The accused also drove their catties in the field of the victim nearly a month before the incident.
3. On 24.12.76, in the morning, victim Bhakhra Ram went in search of his missing camels. When he was in the jungle of Moza Durjani, the accused-persons met him there and opened a joint and concerted attack on him. They struck blows to him with lathis. The victim raised cries. Hearing his outcries, P.W. 3 Ramsingh, who was with his live-stock nearby, went towards that side and saw the accused-persons striking blows to the victim. He entreated them not to beat the victim, but his request fell on deaf ears. The accused threatened him not to come near, lest he would also meet the same fate. The victim fell down but the accused did not $top beating him. The beating resulted in multiple injuries. There was profuse bleeding from his wounds. The accused after beating him went away P.W. 3 Ramsingh went to the victim and found his hands tied with a turban. The turban was also found wrapped round his neck. He untied his hands. Bhakhraram requested him to inform his parents. Ramsingh went to the 'dhhani' of the victim and found his mother PW 4 Mst. Anchhi there. He told her that her son was beaten by the three accused-persons. She came with him to the place of occurrence. Bhakhraram was still alive. On being asked by her as to who had beaten him, he said that Deeparam, Kojaram and Poosaram had belaboured him. He asked for water. She went to the 'dhhani' of P.W. 6 Fateh Khan and brought water and sugar from there. She poured some water in his mouth. The victim did not survive thereafter and breathed his last. P.W. 4 Mst. Anchhi and P.W. 3 Ramsingh came back to her dhhani. She sent him to inform her husband, who had gone to village Baru. P.W. 3 Ramsingh went to Baru and informed her husband P.W. 5 Tejaram that his son was done to death by the three accused-persons. Tejaram took Ridmal (P.W. 7) and Jeewan (P.W. 8) with him and came to the place of occurrence. Keeping his companions near the dead-body, Tejaram went on foot to police station, Bap, which is nearly 35 miles away from there. He reached there at about 7 p.m. on 25/12/76 and verbally lodged report Ex. P. 2 of the occurrence. The police registered a case and proceeded with investigation. The Station House Officer Jagmalsingh took P.W. 11 Dr. P.D. Modi, the then Medical Officer-in-charge, Primary Health Centre, Bap with him and arrived at the site in the noon of 26.12.76. The investigating officer prepared the inquest report of the victim's dead-body and seized the articles lying there. The autopsy of the victim's dead-body was conducted on the spot by Dr. Modi. He noticed the following injuries on his body:
1. Contusion 5 ' x 4' over left lateral and back side of skull.
2. About 8 small abrasions over front of neck.
3. A lacerated wound 3' x 2' x 1' over back of skull in longitudinal direction.
4. Three round contusions about 1' in diameter over left chest near nipple.
5. Contusion 1' x 1' on right arm above elbow joint lateral side.
6. Contusion 4' x 4' over right hand dorsal side.
7. Contusion 7' x 4' over left lower forearm wrist joint and dorsal side of hand.
8. Contusion 3' x 2' over left middle of arm lateral side.
9. Contusion all over scrotum.
10. Contusion 4' x 4' over left gluteal region in the front extending to lateral side.
11. Contusion 4' x 1' over left thigh lateral side in upper portion.
12. Contusion of size 2' x 2' over middle of left thigh lateral side.
13. Lacerated wound 1' x 1' 1' over left ankle joint.
14. Lacerated wound 2' x 1' x 1/2' over left leg in front side.
15. Contusion of 3' x 2' over gluteal region upper portion near wrist in front extending to lateral side.
16. Contusion of size 1' x 1' over upper portion of right leg.
17. Lacerated wound 1' x 1' over medial side of right thumb leg.
18. Contusion of size 3' x 2' over middle of right thigh in front side.
19. Contusion in back over left supra-scapular region size 3' x 2'.
1. Separation of left parietal and occipital sutures with linear fracture of left. temporal bone and intra-cerebral haemorrhage underneath.
2. Laceration with clotts mingled with testicular tissues on both sides.
3. Simple fracture of lower end of left ulna.
4. All the injuries were ante mortem.
5. The doctor was of the opinion that the victim bad died on account of shock caused by the aforesaid injuries to head and testicles, fracture of bones and other soft tissue injuries. The post mortem report prepared by him is Ex. P/17.
6. The accused-persons were arrested on 30.12.76. When arrested, accused Poosaram was found wearing baniyan, turban and sweater. They were found stained with blood. These clothes were seized and sealed. In consequence of the information, furnished by accused Poosaram, whilst under police custody, a dhoti and a lathi were recovered. Blood was found on them. The seized articles were sent for chemical examination to the Forensic Science Laboratory, Jaipur and the Serologist, Calcutta. All the articles were found stained with human blood. On the completion of investigation the police submitted a challan against three accused persons in the court of Munsif and Judicial Magistrate, Phalodi, who in his turn committed the case for trial to the Sessions. The learned Sessions Judge framed a charge under Section 302 read with Section 34, IPC against each of them. The accused pleaded not guilty and claimed absolute innocence. Two of them viz. Kojaram and Deeparam pleaded alibi and averred that they were at a far distant place from the site of occurrence at the time of the alleged incident. Accused Poosaram advanced the plea of private defence. According to him, the victim made an assault on him and struck blows to him with a lathi. He snatched away that lathi from the victim and the victim fell down. When he was arrested on 30.12.76, the injuries were found on his person. In the course of trial, the prosecution examined 11 witnesses and filed some documents. In defence, the accused examined five witnesses. On the conclusion of trial, the learned judge found the prosecution story substantially true. The pleas of alibi and the private defence were rejected as being not established. The learned Judge held that the offence made out was one under Section 304 Part II, and not under Section 302, IPC. The accused were, consequently, convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction and sentence, the accused have come up in appeal
7. I have heard the learned Counsel for the accused-appellants and the Public Prosecutor. I have also gone through the case file carefully.
8. In assailing the conviction of accused-persons, learned Counsel for the appellants raised the following contentions:
1. P.W. 3 Ramsingh was wrongly taken to be a witness of the occurrence. His conduct showed that he had not seen the occurrence. The court-below crept into an error in putting implicit faith on his testimony.
2. Dying declaration alleged to have been made by the victim could not be made by him. It was wrongly called in aid to convict the accused.
3. The evidence of alibi was wrongly rejected by the court-below.
4. The learned Judge had crept into an error in rejecting the plea of private defence, and
5. Even if, the prosecution story is accepted as true, the offence made out is that under Section 325, IPC and not under Section 304 Part II, IPC.
9. In reply, the learned Public Prosecutor supported the conviction of the accused-persons and submitted that there were no reasons to disbelieve the testimony of P.W. 3 Ramsingh. So also, the evidence relating to the dying declaration was firm and solid. The victim had received as many as 19 injuries, some of which were on the vital parts. The accused had died instantaneously on the spot. The offence made out would, therefore, be covered by Section 304 Part II, IPC. I have taken the respective contentions into considerations and propose to deal with them at seriatim.
10. Taking the first contention, it was argued that the testimony of P.W. 3 Ramsingh was wrongly relied upon. He was not a witness of truth and his conduct showed that he had not seen the occurrence. It was contended that he was on inimical terms with the accused. There was litigation between them. He was no more than a chance witness. He did not intervene to help the victim. His conduct, thus, being unnatural, it would not be safe to convict the accused on the basis of what he testified.
11. Needless to say that P.W. 3 Ramsingh is a star witness of the prosecution and the case rests squarely on his testimony. In case, he is believed there is no escape for the accused-persons. He deposed that on the day of occurrence, he went with his live stook in the jungle. When he reached the field of one Suleman, he heard the cries. He went up on a sand-dune and saw the three accused-persons viz. Deeparam, Kojaram and Poosaram striking blows to victim Bhakhraram with lathis. He proceeded further and requested the accused-persons not to beat the victim. The accused turned down his request and threatened him not to come near lest he would also meet the same fate. The victim fell down and the accused continued to strike blows to him. The beating resulted in multiple wounds. The victim sustained injuries on his head, hands, feet, back and chest. There was profuse bleeding from his injuries. When the accused went away after beating the victim, he went to him (victim) hands were tied with his turban. The turban was also wrapped round his neck. He untied his hands. The victim asked him to inform his parents. The witness further stated that he went to the 'dhhani' of the victim and found his mother Anchhi (PW 4) there. He told her that her son (victim) was belaboured by the three accused-persons. She came with him to the place of occurrence. The victim was still alive. She removed the turban from his neck. The victim told her in his presence that he was beaten by accused Deeparam, Kojaram and Poosaram. He then asked for water. She went to the 'dhhani' of Fatehkhan (PW 6) and brought water and sugar. She dropped some water in the mouth of the victim. Thereafter, he passed away. From there, he took his mother back to her 'dhhani' She asked him to go to village Baru to inform her husband. He went to the village and informed the victim's father Tejaram (PW 5) of the incident. P.W. 5 Tejaram took P.W. 7 Ridmal, P.W. 8 Jeewan and one Mukan with him and came to the place of occurrence. From there P.W. 5 Tejaram left for the police station to lodge report and the others remained with the dead-body. On the next day, the police came there. He was cross-examined at length but nothing could be extracted from him, which may make his testimony unworthy of belief. The first information report Ex. P/2 recites all the facts. It is clearly mentioned therein that it was lodged by P.W. 5 Tejaram (father of the victim) on the basis of the information received by him from this witness. It excludes the possibility that he was falsely introduced by the prosecution. It is true that the accused Deeparam had lodged report under Section 379, IPC in the month of May 1976 against the brothers of this witness. But his testimony cannot be discarded on this ground. It was the petty case of theft of the four she-goats. It is also true that one Amuram lodged a complaint against this witness under Sections 447 and 504, IPC in Jan 1976. It is said that Amuram is a relative of the accused-persons. This case ended in a compromise in May 1977, The testimony of P.W. 3 Ramsingh cannot be thrown away only on account of this case. It was he, who went to the mother of the victim, apprised her of the incident and brought her on the spot. It was again he, who went to the father of the victim and narrated the incident to him. It was on the basis of his information that the first information report was lodged. There is nothing unnatural in his conduct to put his testimony at a discount. There is no presumption of perjury against the oral testimony. But before acting upon such testimony its credibility should be tested both intrinsically and extrinsically. whatever tests are applied, the testimony of P.W. 3 Ramsingh appears true and inspires confidence. His testimony was rightly believed by the learned Judge of the trial court.
12. It would be proper at this stage to take up the defence of alibi advanced by accused Deeparam and Kojaram. D.W. 3 Mehrajkhan deposed that accused Kojaram was in his village Rolla on the day of occurrence. He drew the water from a well on that day to irrigate some fields. D.W. 4 Ratansingh deposed that accused Deeparam came to his village Bhardfiya in search of his missing catties. Such sort of evidence in support of the plea of alibi can easily be manufactured at any time. There is no dearth of persons, who oblige others by giving such evidence. The defence of alibi is generally not accepted unless backed by strong and solid evidence. The testimony of D.W. 3 Meharkhan and D.W. 4 Ratansingh is not convincing. The post-mortem examination report Ex. P/17 shows that the victim had received as many as 19 injuries. The victim was a young man of 20 years. Had there been only one assailant, the victim would not have received so many injuries. The number of injuries suggests that they were caused by more than one miscreant. There is no substance in the defence of alibi put forth with by accused Kojaram and Deeparam.
13. The next contention is that the dying declaration was wrongly called in aid to convict the accused-persons. It was argued that P.W. 6 Fatehkhan does not support the story of dying declaration. He did not state that the mother of the victim disclosed the dying declaration to him. This infirmity makes the dying declaration highly suspicious.
14. P.W. 4 Mst. Anchhi deposed that P.W. 3 Ram Singh came to her 'dhhani' and informed her that her son was belaboured by the accused-persons. She came with him at the place of occurrence and found the victim lying there. There were multiple injuries on his body and blood was oozing out from them. He was alive. She asked him who had beaten him. The victim told her that Deepa, Koja and Poosa (accused-persons) had belaboured him. He asked for water. She went to the dhhani of Fatehkhan (P.W. 6) and brought water and sugar from there. P.W. 6 Fatehkhan admitted that P.W. 4 Mst. Anchhi came to his dhhani and told him that her son (victim) had been beaten. She asked for water. He gave water and sugar to her. She then went away with these things. He deposed that Mst. Anchhi (PW 4) did not disclose him the names of the miscreants, who had beaten her son. In his statement Ex. P/3 under Section 161, Cr. PC he did state that Mst. Anchhi (P.W. 41 disclosed the name of the miscreants to him. He was confronted with portion A to B of his police statement Ex. P/3. He simply denied to have given this statement. He was declared hostile. It appears that P.W. 6 Fatehkhan has suppressed the truth for one or the other reason. If Mst. Anchhi (P.W. 4) told him that her son was beaten, it is expected that she also disclosed the names of the assailants. Otherwise too, out of curiosity P.W. 6 Fatehkhan must have asked the names of the assailants. In these circumstances, the hostile attitude of P.W. 6 Fatehkhan is of no material consequence and does not destroy the fact of victim's making dying declaration. The victim was definitely alive when his mother Mst. Anchhi (PW 4) came to him. She brought water and sugar from the dhhani of P.W. 6 Fatehkhan only because he was alive and asked for water. Had he not been alive by that time, she would not have gone to the dhhani of P.W. 6 Fatehkhan to bring water. If he was alive, naturally he must have told her as to who were his assailants. In these circumstances, it can safely be said that the victim made a dying declaration before his mother Mst. Anchhi (PW 4) that he was beaten by accused Deeparam, Kojaram and Poosaram. When the testimony of eyewitness P.W. 3 Ramsingh and the dying declaration of the victim are taken together, they leave no room for doubt that the accused-persons were the perpetretors of crime and they alone caused the death of Bhakhraram.
15. The contention relating to the plea of private defence may next be taken up. Accused Poosaram in his statement under Section 313, Cr.P.C. stated that the deceased-victim had picked up quarrel with him. He (victim) struck blows with a lathi on his jaws. In order to avert and ward off further attack, he tried to disarm the victim by snatching his lathi. In that process, the victim received some thrusts xqns of lathis. The victim fell down. It was arrested that when the accused was arrested on 30.12.76 at about 5 p.m., the Station House Officer noticed some injuries on his left middle finger, left cheek and chest and noted them in arrest memo Ex. P/5. Since, these injuries have not been explained by the eye-witness P.W. 3 Ramsingh it probabilises his plea of private defence.
16. There is no substance in the contention for a variety of reasons. In order to find out whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. The accused should show from the material on record that the injuries found on his body were sustained by him in the very transaction for which a charge has been framed against him. It has been repeatedly pointed out by their Lordships of the Supreme Court that the prosecution case cannot be thrown over-board, simply because the prosecution does not explain the injuries on the person of the accused. Bankeylal v. State of U.P. : 1971CriLJ1540 and Bhagwan Tana Patil v. State of Maharashtra : 1974CriLJ145 are among the numerous authorities on the point.
17. Now, P.W. 3 Ramsingh, who is the sole eye-witness of the occurrence was not cross-examined by the accused in the light of his plea of private defence. No question was put to him as to whether accused Poosaram sustained any injuries in the incident. It is a cardinal principle of cross-examination that the prosecution witness should be put questions in the light of the defence to be built up by the accused. No such attempt was made by the accused in the instant case. Simply because, some trivial injuries were found on the non-vital parts of the accused nearly after 5 or 6 days of the occurrence, the right of private defence should not be assumed. A plea of private defence cannot be based on surmises and speculations.
18. The accused was arrested nearly after 5 or 6 days of the occurrence. He was free during this intervening period. If he had sustained injuries in this very incident, it was expected that he got himself medically examined before his arrest. But he failed to do so. The victim received as many as 19 injuries some of which, were on the vital parts of the body. The injuries on the head, neck and thighs cannot be caused merely by thrusts of lathi. Moreover, the number of injuries strongly suggests that the assailants of the victim were more than one. Taking all these circumstances into consideration, it cannot be said that the accused inflicted I blows to the victim in self-defence.
19. The last contention which now survives for consideration is whether the accused have been properly convicted under Section 304 Part II, IPC. It was argued that the offence made out is that of only causing grievous hurt under Section 325, IPC. I am unable to accept the contention. P.W. 11 Dr. Modi stated that he noticed as many as 19 ante mortem injuries on the victim's dead-body. Some of these injuries were on the vital parts, such as skull, neck and chest and also grievous in nature. The injuries were collectively sufficient in the ordinary course of nature to cause death though none was individually sufficient to cause death.
20. Section 299, IPC contains three parts, the first two relate to intention while the third speaks of knowledge. The learned Sessions Judge found no intention required to bring the case under the first two clauses under Section 299, IPC. Inasmuch as, death has been caused and the injuries were extensive some being on the vital parts, the matter comes atleast within the meaning of culpable homicide not amounting to murder and, therefore, falls under the third part of Section 299, IPC. The accused did an act with the knowledge that by their act, they were likely to cause death of the victim. The case having been covered by the third part of Section 299, IPC is undoubtedly punishable under the second Part of Section 304, IPC. The contention that the case is covered only by Section 325 IPC, holds no ground.
21. There was a joint and concerted attack on the victim, which implies common intention on the part of all the three accused-persons. Section 34 IPC thus clearly applies. A sentence of 5 years cannot be said to be harsh or excessive.
22. For the reasons discussed above, I find no force in this appeal of the accused-appellants and dismiss the same. The accused were on bail during the pendency of the appeal and are absent today. They will surrender within a fortnight before the learned Sessions Judge, Jodhpur. In case they fail to surrender, the learned Sessions Judge will issue warrants of arrest to secure their presence and commit them to jail to serve out the unexpired portion of the sentence.