K.D. Sharma, J.
1. This appeal by Niyamat Knan has been preferred against the judgment of the Addl Sessions Judge, Churu, dated 30th October, 1976, convicting the appellant under Section 323, IPC and sentencing him to one year's rigorous imprisonment.
2. The prosecution case against the appellant was as follows : On 24-6-1974 at about 11-30 p.m. Allahdin son of Saduleh Khan, deceased, was standing beneath a tree of 'Tali' (Sheesham). Niyamat Khan son of Labdhi Khan approached him and asked why he had abused the former's mother. Allahdin replied that he did not use any abusive language to Niyamat's mother. Niyamat son of Labdhi Khan resented the reply given to him by Allahdin and began to abuse the latter At that time Saduleh Khan, deceased, was sitting inside a near by house of Saduleh Khan son of Jasu Khan hereinafter referred to as Saduleh Khan, injured On hearing the altercation that ensured between his son Allahdin and Niyamat son of Labdhi Khan, the deceased came out and enquired about the cause of quarrel from his son. Meanwhile, Niyamat son of Labdhi Khan gave a push to Alladhin, as a result of which the latter, being a lame person, fell down Mst. Haliman on seeing being pushed in a violent manner, rushed to the spot and enquired from Niyim it son of Labdhi Khan as why he was beating a lame person. Thereupon, Niyamat son of Labdhi Khan cried in a loud tone that he would beat him On. hearing his cries, the appellant and other persons, namely, Munir Ahmed, Pir Bux, Bashir Khan, Hanif Khan, Bhaswaru Khan, Chand Khan, Yusuf Khan, Mst. Patasi, Gulam Kadar, Murad Khan, Moti Khan, Usman Khan, and Majid Khan came there having armed theme selves with Barchis and lathis from the house of Menuddin Khan which lay adjacent to the tree of Tali'. Munir Ahmed, Gulam Kadar, Pir Bux, Bashir Khan and Niyamat Khan son of Ahmed Khan appellants had Barchis in their hands, while the other persons were armed with lathis On seeing the appellants and other persons reaching the spot, Yusuf Khan son of Saduleh Khan, injured, Ibrahim Khan and Phule Khan also came out of a nearby house of Bashir Khan, where in they were playing catds. Bashir Khan, owner of the house, was sleeping at that time Saduleh Khan, injured also rushed out of his house to the place of occurrence on hearing the cries of the assailants, such as, 'Maro Maro'. The assailants surrounded Saduleh Khan, de eased, and Saduleh Khan, injured, and started beating them with Barchis and lathis. Pir Bux & Gulam Kadar struck blows on the head of Saduleh Khan, deceased, with reverse side of their Barchis. Thereafter, the appellant inflicted a blow on the left side of his neck with the reverse side of his Barchi. Thereafter Munir Ahmad struck blows on the head of the deceased with the sharp side of the Barchi. As a result of these blows, the deceased fell down. Niyamat Khan son of Libdhi Khan struck two laths blows one on the right parietal region & the other on the right elbow of the deceased, while the latter was lying on the ground Saduleh Khan, injured, rushed to the rescuse of the deceased, but at the instigation of Munir Ahmed, Pir Bux and Gulam Kadar, he was beaten by Ghand Khan, Yusuf, Hanif Khan and Bhanwaru Khan with lathis. Bashir Khan and Pir Pux also inflicted blows on the left elbow and head of Saduleh Khan injured respectively, as a result of which the lather fell down After he had fallen, all the assailants started beating him. On seeing his father being beaten by the assailants, Yusuf Khan ran to protect him but he was beaten by Mst. Patasi who inflicted a lathi blow on his left palm Yusuf Khan son of Saduleh Khan injured again tried to intervene but he was caught hold of by one Ibrahim, who advised him not to risk his life The appellant and other assailants went towards their houses after the 'Marpit' was over. After the assailants had goae from the place of occurrence, Yusuf Khan, with the help of other persons lifted up his father Saduleh Khan the deceased, removed them to the police station, Ratangarh, in a Tonga and lodged a report of the incident with the Station House Officer at the said police station on 24th June, 1974, at 2 50 p m. The Station House Officer registered a criminal case on the basis of the report of Yusuf Khan under Sections 148, 307, 326, 323 read with Section 149, I.P.C. and took up the usual investigation into the matter. He got the statement of Saduleh Khan, deceased, recorded by Nagar Mal, S.I. which is Ex. P.88 on the record and which bears the thumb impression of Saduleh Khan. Thereafter, he sent Saduleh Khan deceased and the other injured persons to S.M.J. Hospital, Ratangarh, for medical examination as to their injuries Dr. Prem Prakash Gupta, Deputy Chief Medical Officer, Ratangarh, examined Saduleh Khan, deceased, on 24th June, 1971, & founds the following three injuries on his body:
1. Incised wound 12 cm x 2 11 cm. with fracture of right frontal bone;
2. lacerated wound 8 cm. x2 cm. x 1 cm. on occipital region;
3. contusion 3 cm. x 2 cm. covering right upper eye-lid.
Injury No. 1 was grievous and caused by a sharp edged weapon while injuries Nos. 2 and 3 were simple & caused by blur object. Saduleh Khan, diseased was admitted in the Hospital as his condition was precarious The deceased was X-rayed on 2nd July, 1974 and his X-ray plarts are Exs. P. 2 P. 3 and P. 4 which are on the record of sessions case No. 58/'4. X ray examination revealed fracture of his right frontal, parietal bones with radiating of fracture line to right and left orbital bones also. On the same day, i.e. 24th June, 1974, the Doctor examined Saduleh Khan, injured, and noticed the following injuries on his body:
1. incised wound 6 cm X I cm. on occipital region;
2. incised wound 6 cm. X 1 cm. on posterior aspect on upper one fourth of left fore arm;
3. contusion 8 cm. X 3 cm, on back of neck middle;
4 contusion 5 cm. X 3 cm. on left shoulder;
5. contusion 4 cm. X 2 cm. on front of left shoulder;
6. contusion 6 cm. X 2 cm. on lateral aspect of left arm upper 1/3rd;
7. contusion 3 cm. X 2 cm. on lateral aspect of right arm near elbow joint:
8. contusion 10 cm. X 3 cm. on antero-lateral aspect of left side;
9. contusion 8 cm X 4 cm. on left thigh front 6 cm above left knee;
10. lacerated wound 1/2 cm X 1/4 cm. on back of first inter-phalangeal joint of left index finger;
11. lacerated wound on 1/4 cm. X 1/4 cm. on back of terminal phalanx of left index finger;
12. lacerated wound 1/4 cm. X 1/4 cm. X 1/4 cm. on pulp of left thumb;
13. contusion 15 cm. x 3 cm. right side chest.
Out of these injuries, injuries Nos. I and 2 were simple in nature, caused by-sharp weapon while the other simple injuries were caused by blunt object. On the same day, the Doctor examined Yusuf son of Saduleh Khan, injured, and found one contusion 4 cm. x 3 cm. on the back of left hand at second, third & fourth metacarpal The injury was simple and caused by blunt weapon. As the condition Saduleh Khan, deceased, was deteriorating, Shri Chaman Lal Bajaj, Munsiff Magistrate, Ratangarh was called upon to record his dying declaration in the presence of Dr. Prem Prakash Gupta. The Doctor certified that the deceased was in a fit condition to give his statement. Shri Chiman Lal recorded the dying declaration, which is Ex. P.9 on the record and which bears the thumb-impression of Saduleh h Khan, deceased. A medical board consisting of other Doctors was constituted by the Chief Medical and Health Officer, Ratangarh, to examine the injuries on the body of the deceased and Saduleh Khan, injured. The Doctors examined their injuries and gave a separate finding on 3nd July 1974, which is Ex. P.16 on the record of sessions case No. 58/74. Saduleh Khan died in the hospital on 4th July, 1974. The Doctor informed the station House Office about his death vide his letter Ex. P.10 of sessions case No. 587/74 in which he, by mistake, wrote the date of his death as 4.6.74' instead of '4.7.74' Upon Saduhleh khan's death, Dr. Prem Prakash Gupta performed post-mortem examination on 4th July 1974 at 9.45 P.M. in the hospital mortuary and found the following external injuries:
1. longitudinal scar 10cm. x 1/5 cm. on right frontal and parietal region;
2. 7 1/2 cm. x 1/5 cm oblique scar In occipital region
He opened the scalp over aponeuiosis and found that there was haematoma extending from frontal to occipital bone and from left temporal to right temporal bone There was sub-apoaeurotic haematoma on the fracture site There is right frontal and parietal region sight, extending to left fontal and parietal region also 8 cm linear cut (fracture) of right frontal and parietal bones and then fractume 1 1/2 cm on each side of thu linear fracture, length about 13 cm each and then fracture, line further extending to right orbital and left oibital region and another fracture line going to left frontal, left parietal and then to right parietal bone. Extra dural htematoma on right frontal parietal region extending to left side also. Sub-dural haematoma on both fontal-parietal and temporal regions. There was 3 cm X 1/5 cm. cut on durameter of frontal region. 6 cm. X 4 cm. Laceration of right frontal tobe of brain with congestion around it. There was haematoma formation right middle cranial fossa also.
3. In the opinion of the Doctor, Saduleh Khan, deceased, died of fracture of the right and frontal parietal bones caused by shrao-edged weapon. The fracture-line produced two separate pieces of right frontal bone further, radiating to right orbital, left orbital left frontal and left parietal and then to right parietal bone and laceration of right frontal bone of brain leading to coma and death. Tne Doctor definitely opined that injuries Nos. 1 and 2 in his injury leport Ex P. 5 which is on the file of Sessions case No. 58/74 had aussed the above fracture and his effect and were sufficient in the ordinary cuarse of nature to cause the death of the deceased. When Dr Prem Prakash coses performing the post-mortem examination on the deid body of the deceadid, Dr. B.N. Bnargava and Dr. V.K Bhagava came in the mortuary and closed to the former that they were asked by the Chief Medical and Health Officer, Ratangarh, to attend the post-mortom eximination and to give their findings. These two Doctors have given their separate findings.
4. Dhanpat Singh, Station House Officer, Ratangarh, inspected the she and prepared a site-plan and a site-insptction memo. He took the blood-suained clothes of the deceased andthe or her injured person into his possession and sealed them pre perly in the presence of Moibirs He arrested the appellant and recovered lathis from the possession of some of them at their instance and iu consequence of their information recorded under Section 27 of the Evidence Act. After collecting other necessary evidence the Station House Officer, Ratangarh, submitted a charge-sheet against other assailants except the apptllant in the court of the Ch. Judicial Magistrate, Churu, Under Section 302 307, 324, 323, & 148 read with Section 149 IPC. As the appellant was rving in the Army, the Investigating Officer could not procure his attendance at the time when the chailan was filed up by him against the other assailants. Later on. when the appellant was arrested, a charge-sheet was submitted against him in the court of the Ch, Judicial Magistrate, Ghuru, for offences under Sections 302, 307, 148 and 324 lead with Section 149, IPC The learned Magistrate pei used the papers submitted along with the chalan and, upon finding a prima-facie case exclusively triable by the Court of Sessions, committed the appellant to the court of the Additional Sessions Judge for trial for the of re-said offences. The Additional Session Judge Churu, acquitted the appellant-of all the aforesaid charges but convicted him under Section 123, IPC & sentenced him in the manner stated above.
5. I have carefully gone through the record and heard Mr. Chaudary learned Counsel for the appellant, and Mr. K.C. Bhandari, Public Prosecutor, for the State. It has been contended be Mr. P.R. Chaudhan that he prosecution utterly failed to bring guilt home to the appellant under Section 323, IPC, but the trial court did not correctly appreciate the evidence and committed an error in convicting and sentencing him for voluntarily causing simple hurt to Siduleh Khan, deceased. In support of his above contention, the took me through the certified copies of the two dying declarations Ex. 5 and Ex. D.3 (the originals of which are on the record of Sessions Case No. 58 of 1974 and marked as Exs. P.9 and P. 28 respectively) made by Saduleh Khan, deceased, as to the cause of his death and as to the circumstances of the transaction which resulted in his death and contended on their strength that the deceased did not implicate the appellant in the commission of the crime and the eye witnesses later on improved upon their versions to foist a false case on the appellant.
6. I have considered the above contention and found it weighty. From a bare reading of the certified copies of the dying declaration, Ex 5 it is evident that Saduleh Khan deceased, merely stated that Niyamat struck a lathi blow on his head while Muiir Ahmad inflicted a Barchi blow en his head. Piru also struck a lathi blow on the occipital region of his head and Niyamat dealt a lathi blow on his elbow. The assailants were 20 or 25 in number. They caused in juries to another Saduleh Khan also If is not disputed before me by the prosecution that there were two Niyamat Khans of different parentage who took part in the assault on Saduleh Khan, deceased, and Sadileh Khan, injured. One was Niyamat Khan appellant son of Ahmed Ali Khan and the other was Niyamat Khan son of Labdhi Khan, who has been convicted and sentenced by the Additional Sessions Judge, Churu, under Section 323, IPC. in Sessions Case No. 58 of 1974 (arising out of the same occurrence). The deceased did rot state in his dying declaration Ex. P.5 as to which of the two Niyamat Khans had struck a lathi blow on his head and which had hit him on his left elbow. It is highly doubtful from reading dying declaration Ex. 5 whether the two lathi blows one on the head and the other on the elbow of the deceased were struck by Niyamat appellant or by another Niyamat Khan son of Labdhi Khan, who also took part in the commission of the assault on Saduleh Khan deceased, and Sadulehkhan, injured. Apart from this, the evidence of the eyewitnesses is that the appellant inflicted a blow on the occipital region of the head of Saduleh Khan, deceased, with the reverse side of a Barchi, while in the dying declaration Ex. P., the deceased attributed this injury to Pir Bux.
7. In the other dying declaration made by the deceased before Dhanpat Singh. SHO the certified copy of which is Ex. D.3, the deceased did not mention the name of the appellant as the assailant The dying declaration Ex. D.3 has been proved by the evidence of Dhanpat Singh, P.W. 10, who admitted in his cross examination that the dying declaration of the deceased Ex. D-3 was got recorded by him and that the deceased in this dying declaration mentioned the name of Niyamat Khan son of Labdhi Khan as one of his assailants. I have carefully perused the other dying' declaration Ex. D.3 and found that the deceased mentioned the name of Munir Ahmed son of Mazid Khan, Niyamat Khan son of Labdhi Khan, Piru son of Bilash Khan and Murad son of Labdhi Khan only as his assailants According to the version of the deceased contained in Ex. D.3, Munir Ahmed struck a blow on his head while Niyamat Khan (father's name not mentioned) inflicted a lathi blow on his right eye the deceased did not state in his dying declaration Ex D. 3 that Niyamat Khan son of Ahmed Ali Khan had caused a blow on the occipital legion of his head with the reverse side of Barchi. The two dying declarations of the deceased, therefore, do not establish the complicity of Niyamat Khan appellant in the commission of the crime.
8. The eyewitnesses, namely, Yusuf Khan, P.W. 2, Saduleh Khan, injured, P.W. 3, Allabdin P.W. 6, Bashir Khan, P.W. 7, Ibrahim Khan P.W. 9 no doubt stated in thtir depositions that Niyamat Khan appellant was responsible for causing an injury on the occipital region of the deceased with the reverse side of his Barchi. As state dearlier, the testimonies' of the eyewitnesses and the two dying declarations made by the deceased are conflicting in regard to the role played be the appellant in the commission of the crime. Apart from this, the evidence of the eye witnesses is not free from infirmities on this point. Yusuf Khan, PW. 2, no doubt stated in his examination-in-chief that Niyamat Khan appellant had struck a blow with the reverse side of his Barchi on the upper part of the neck of the deceased, but where confronted with the first information report Ex. P. (certified copy of which is on the record), the witness could not afford any reasonable explanation for this omission in his report. He merely stated that he was in a hurry and the report was neither read over to him nor did he go through it The evidence of Yusuf Khan in the trial court loses much of its weight on account of omission on his part to state in his first information report that the injury on the occipital region of the deceased was caused by the appellant with the reverse side of his Barchi. In the first information report, he merely mentioned the name of the appellant as one of the persons who attacked his father Saduleh Khan, injured and the deceased Saduleh Khan, but he did not ascribe any specific role to the appellant in the commission of the prime while in his statement before the trial court he improved upon his version given in the first information report and specifically attributed the injury on the occipital region of the head of the deceased to the appellant Another eye-witness is Sabuleh Khan, injured. He also stated in his examination-in-chief that a below was dealt on the upper part of the neck of the decaseer by the appellant with the reverse side of his Birchi, but when confronted with and contradicted by his previous statement before the police, he could not say why this fact was not written in his police state merit. In police statement, Saduleh Khan injured clearly stated that Muradkhari struck a lathi blow of the parietal region of the deceased, then Pir Bux Son of Bilashkhan inflicted a blow on the head of the deceased with a Barchi and thereafter Munir' Ahmed son of Nazirkkan dealt one blow on the head of Sadulehkhan with a Barchi as a result of which the latter fell down. Hence, it is evident that for the first time in his statement before the trial court, Sadulehkhan implicated the appellant by stating f that he had inflicted a blow on the upper part of the neck of the deceased with the reverse side of a Barchi. His statement at the trial is irreconcilable with what he omitted to say in his police statement. Such ah omission in his statement under Section 162, Cr.P.C. amounts to contradiction and throws considerable doubt on his version at the trial regarding the role attributed to the appellant in the commission of the crime.
9. The third eye-witness is Allahdin, PW. 6. He also implicated the appellant in his examination-in chief by saying that a blow was struck by Niyamat Khan on the upper part of the neck (Guddi) of his father Saduleh Khan, deceased, with the reverse side of the Barchi. Alahdin was confronted with portion A to B of his previous statement in Sessions Case No. 58 of 1974 (State of Munir Ahmed and others arising out of the same occurrence) wherein he stated that Niyamat and Pir Bux had struck blows on the head of his father Saduikhkhan, deceased, with the reverse side of the Barchi and then Niyamat Khan inflicted another blow on his father's upper portion of the neck (Guddi) which barchi In his previous statement in Session; Case No. 58 of 1974, Allahdin did not any which of the two Niyamats, Niyamat Khan son of Labdhi Khan or Niyamat Khan son of Ahmed Ali Khan had inflicted a blow on the upper portion of the neck of his father with reverse side of the Banchi. In view of the fact that Allahdin mentioned the name of Niyamat Khan son of Labdhi Khan a Woks one of the assailants, it was highly doubtful whether Niyamat Khan son of Ahmed Ali Khan appellant was the person who struck a Barchi blow on trie occipital region of the head of Saduleh Khan, deceased, unless the possibility of this injury having been caused by to he other Niyamat Khan, i.e. Niyamat Khun son of Labdhi Khan had been excluded, altogether by the witness by stating father's name of Niyamat Khan assailant.
10. Another eye-witness examined by the prosecution is Bashir Khan, P.W. 7 He also repeated the same, story by stating in his examination in-chief at the trial that it was trie appellant who struck a blow on the neck of the deceased with the reverse side of his Barchi. In his cross-examination, this witness was confronted with his previous statement which he gave before the police and wherein he did not state that a blow with the reverse side of the Barchi was struck by the appellant on the upper part of the neck of the deceased When confronted with his police statement regarding the above material omission, he merely stated that he did not know why this fact was not written by the police, although he claimed to have diseased it to the police.
11. The last eye-witness examined by the prosecution is Ibrahim Khan PW 9. His evidence also does not inspire confidence in view of, the fact that the deceased did not say in his two dying declarations that the appellant had a struck a blow on his occipital region with reverse side of his Barchi. Apart from this, Ibrahim Khan appears to be an interested witness. According to his version a day before the occurrance, Manuddin Khan, Bashir Khan and Patasi were shouting while coming from the side of the house of the deceased Ibrahim Khan asked Manuddin Khan as to what had happened. There upon, Manuddin Khan replied that Sadulehkhan deceased was a foolish, person and that he would see him-and his supporters and. The above statement was not made by this witness before, the police. In his cross examination he was confronted with, his police statement but he could not say why of this incident of 23.6.1974 was not written in his previous statement by the police. By making this improvement on his, previous statement before the police, this witness tried to make the court believe that the assault made on deceased Saduleh Khan by the appellant and his companions was a calculated or premeditate 1 one. No reliance can be placed on the evidence of such a witness, so far as, it implicates Niyamat Khan appellant in the commission of the crime.
12. The result of the above discussion is that the prosecution could not establish the guilt of the appellant beyond reasonable shadow of doubt. It is highly doubtful that the appellant had caused a blow on the occipital region of the deceased with the Reverse, side of his Barchi. In the absence of any cogent, clear and unimpeachable evidence on the record, the appellant is entitled to the benefit of reasonable doubt, which is given to him.
13. The appeal of Niyamat Khan is, therefore accepted, his conviction and the sentence under Section 323, IPC are set aside and he is acquitted of the offence punishable under Section 323, IPC The appellant is on bail. He need not surrender to his bail bonds, which are hereby cancelled.