K.D. Sharma, J.
1. This appeal by Munir Ahmed, Pir Box, Bashir Khan, Hanif Khan, Bhanwaru Khan, Ghand Khan, Yusuf Khan and Mst. Patasi is directed against the judgment of the Additional Sessions Judge, Churu, dated 27th June, 1975, convicting the appellants as under:
1. Munir Ahmed under Section 304 Ten years' Rule I.Part I, I.P.C. and a fire ofRs. 1010/-, in de-fault one year's further Rule I.2. Pir Box )under Section 324, I.P.C. Each sentenced totwo 5 ears Rule I.3. Bashir Khan)under Section 323 I.P.C.4. Hanif Khan ) ) each convicted under) Section5. Bhanwaru Khan ) 323, I.P.C. and sentenced) to one year's rigorous6. Chand Khan ) imprisonment7. Yusuf Khan ) 8. Mst. Patasi under Section 323I.P.C. Six months' rigo-rous imprisonment
2. The prosecution case against the appellants was as follows : On 24th June, 1947, at about 1.30 pm. Allahdin son of Saduleh khan, deceased, was standing beneath a tree of 'Tall' (sheesham), Niyamat 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 this by Allahdin & began to abuse the latter. At that time Saduleh khan, deceased was sitting inside a nearby house of Saduleh Khan S/o Jasu Khan, hereinafter referred to as Saduleh Khan, injured. On haring 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 Allahdir, as a result of which the latter, being a lame person, fell dow. Mst Haliman on seeing Allahdin being pushed in a violent manner, rushed to the pot and enquired from Niyamat son of labdhi Khan as why he was beating a lame person. Thereupon, Niyamat son of labdhi khan cried fin aloud tone that he would beat him. On hearing his cries, the appellants and Niyamat Khan son of Ahmed Ali khan and Niyamat Khan son of Labdhi khan and other persons having armed themselves with Barchis and lathis came from the house of Manuddin khan which Jay adjacent to the tree of 'Tali'. Munir Ahmed, Gulam kadar, Pir buz, bashir khan appellants and Niyamat son of Ahmed khan had Barchis in their had while the other appellants an niyamat Khan son of labdhi khan, who has not preferred any appeal were armed with lathis. On seeing the appellants and niyamat Khan son of Ahmed Khan reaching the spot, also came out of a nearby house of Bashir khan, where in they were playing cards. 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 appellant, such as, 'maro maro'. The appellants, Niyamat Khan son of Ahmed Ali khan and Ali khan and Niyamat Khan son of Labdhi Khan surrounded Saduleh Khan deceased and Saduleh khan, injured, and started beating them with Barchis and lathis, Pir Box appellant, appellant and one Gulam kadar struck blows on the head of Saduleh khan, deceased, with the reverse side of their Barchis. Thereafter, Niyamat khan son of Ahmed Ali Khan inflicted a blow on the left side of the neck with the reverse side of his barchi. Thereafter, Munir, Ahmed appellant struck blows on the head of the deceased with the sharp side of the barchi. As a result of theise blows, the deceased fell down. Niyamat khan son of Labdhi Khan struck two lathi blows one of the right parietal region and the other of the right elbow of the deceased, while the latter was lying on the other on the right elbow of the deceased, while the latter was lying on the ground. Sadhuleh Khan, injured, rushed to the rescue of the deceased, but at the instigation of Munir Ahmed, Pir Box, appellants and one Gulam Kadar, he was beaten by Chand khan, Yusuf, hanif khan, and Bhanwaru khan appellants with lathis Bashir khan and Pir Bux appellants also inflicted blows on the left elbow and bead of Saduleh Khan injured respectively, as a result of which the latter fell down. After he had fallen all the appellants started beating him. On seeing his father being beaten by the appellants & Niyamat Khan son of Ahmed Khan yusuf Khan ran to protect him but he was beaten by Mst. Patasi appellant who inflicted a lathi blow on his left palm Yusuf khan S/o 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 appellants, Niyamat son of Ahmed Khan and Niyamat Khan son of Lasbdhi Khan went towards their houses after the 'Marpit' was over. After the assailants had gone from the place of occurrence Yusuf Khan with the help of other appellants lifted up his father Saduledh Khan and the deceased, and removed them to the police station of 24th June, 1974, at 2.50 pm. 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, Section 1 which is Ex. P. 28 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, 1974 & found the following three injuries on his body:
1. Incised wound 12 cm x 2 cm x 1 1/2 cm. with fracture of right frontal bone.
2. lacerated wound 8 cm x 2 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 and caused by blunt object. Saduleh Khan, deceased, was admitted in the Hospital as his condition was precarious. The deceased was X-rayed on 2nd July, 1974 an d his x-ray plates are Exs. P. 2, P 3 and P. 4. X-ray examination revealed fracture of his right fronal, parietal bones with radiating of fracture line to right and left orbital bones also. On the same day, i.e., 24th June 1971, he examined Saduleh Khan, injured, and noticed the following injuries on his body.
1. Incised wound 6 cm. x l cm. x 1 cm. on occipital region;
2. Incised wound 2 cm. x 1 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. cm left thigh front 6 cm. above left knee;
10. lacerated wound on 1/2 cm. X 1/4 cm. x 1/4 cm. back of first inter phalangeal joint of left index finger;
11. lacerated wound on 1/4 cm. X 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 on pulp of thumb;
13. contusion 15 cm. x 3 cm. on right side chest.
Out of these injuries Nos. 1 and 2 ware simple in nature, and 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 back of left hand at second and third and fourth metacorpal. The injury was simple and caused by blunt weapon. As the condition of Saduleh Khan, deceased, was deteriorating, Shri Chaman Lal Bajaj, Munsiff-Magistrate, Ratangarh was called for 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 Chaman Lal recorded the dying declaraton, which is Ex. P. 9 on the record and which bear the thumb impression of Saduleh Khan, deceased A medical board consisting of other Doctor 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 3rd July, 1974 which is Ex P. 61 on the record Saduleh Khan died in the hospital on 4th July, 1974. The Doctor informed the Station House Officer about his death vide his letter Ex. P. 10 in which he, by mistake, wrote the date of his death as'4 6-74' instead of '4-7-74' Upon Saduleh Khan's death, Dr. Prern 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 10 cm. x 1/5 cm. on right frontal and parietal region.
2. 74 cm. x 1/5 cm. oblique scar in occipital region.
He opened the seal over aponeurosis and found that there was haematoma extending from frontal to occipital bone. There was sub-aponeurotic haematoma on the fracture site. There was right frontal and parietal region slightly extending, to left frontal and parietal region also. 8 cm linear cut (fracture) of right frontal and parietal bones and then fracture, 11 cm. on each side of this linear fracture, length about 13 cm each and then fracture right line further extending; to orbital and left orbital region and another fracture line going to left frontal,' left parietal and then to right parietal bone. Extra dural haematoma on right frontal parietal region extending to left side also Sub dural haematoma extending on both frontal parietal and temporal regions. There was 3 cm. x 1/5 cm. cut on durameter of frontal region 6 cm x 4 cm. Iacertation of right frontal lobe of brain with congestion around it. There was haematoma formation right middle cranial fossa also.
3. In the opinion of the Dr. Saduleh Khan deceased, died of fracture of the right and frontal parietal bones caused by sharp 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 & then to right parietal bones & laceration of right frontal bone of brain leading to coma and death. The Doctor definitely opined that injuries Nos. 1 & 2 in his injury report Ex P 5 had caused the above fracture and its effect and were sufficient in the ordinary course of nature to cause the death of the deceased. When Dr. Prem Prakash was performing the post-mortem examination on the dead body of the deceased, Dr. B.N. Bhargava and Dr. V.K. Bhargava came in the mortuary and disclosed to the former that they were asked by the Chief Medical and Health Officer, Ratangarh, to attend the post-mortem examination and to give their findings. These two Doctors have given their separate findings.
4. Dhanpat Singh, Station House Officer, Ratangarh, inspected the site and prepared a site-plan and a site-inspection memo. He took the blood stained clothes of the deceased and the other injured persons into his possession and sealed them properly in the presence of Motbirs. He arrested the appellants and recovered lathis from the possession of some of them at their instance and in consequence of their information's recorded under Section 27 of the Evidence Act. After collecting other necessary evidence, the Station House Officer submitted a charge-sheet against all the appellants and Niyamat Khan S/o Labdhi Khan and Gulam Kadar & others in the court of the Chief Judicial Magistrate, Churu, under Section 302, 307, 324, 323 and 148, read with Section 149, I.P.G. As Niyamat Khan son of Ahmed Khan was serving in the Army, the Station House Officer could not procure his attendance at the time when the challan was filed by him against the appellants and others. Later on, when Niyamat Khan son of Ahmed Khan was arrested, a charge-sheet was submitted against him in the court of the Chief judicial Magistrate, Churn, under Sections 302, 307, 148 and 324 read with Section 194, I.P.C. The learned Magistrate perused the papers submitted along with the challan and upon finding a prima-facie case exclusively triable by the court of the Sessions Judge, committed all the appellants, Niyamat Khan son of Labdhi Khan and Gulam Kadar and others to the court of the Additional Sessions Judge, Churn, for trial for the aforesaid offences'. The Additional Sessions Judge Churu, tried them and while acquitting Gulam Kadat, Murad Khan, Mori Khan, Usman Khan and Mazid Khan accused, convicted and sentenced the appellants in the manner indicated above
5. I have carefully perused the record and heard Mr. V.S Dave and Mr. P R. Chaudhary, Jearaed counsel for the appellants and Mr K C. Brandari, Public Prosecutor, for the State Firstly, it has been contended by Mr. V.S. Dave, learned Counsel for the appellants, that the 'Marpit', in which Saduleh Khan was killed and the other Saduleh Khan received injuries, had started upon an aggressive act of the complainant-party consisting of the deceased Saduleh Khan, Saduleh Khan injured, Yusuf Khan, Yashin Khan and the appellants were justified in resisting force by force. In support of his above contention, Mr. V.S. Dave laid much emphasis on the presence of following injuries on the bodies of Yusuf Khan, Hanif Khan and Bhanwaru Khan:
Injuries of Yusuf Khan:
1. Contusion 3 cm x 2 cm on left aim frontal middle;
2. contusion 3 cm x 1 cm on left wrist back;
3. contusion 8 cm. x 2 cm on right side back at 12th thoracic vertebrae level;
4. contusion 2 cm x 2 cm on occipital region.
Injuries of Hanif Khan:
1. abrasion 1/4 cm x 1/4 cm on knuckles of third and 4th metacorpal left;
2. abrasion J cm x cm on the knuckles of 3rd and 4th metacorpal left;
3. contusion 2 cm x 1 cm on right shoulder;
Injuries of Bhanwaru Khan:
1. fracture right ulna upper the with lacerated wound 2 cm x 1/4 cm x J on posterior side and upper 1/4th and right fore arm;
2. fracture of the wound underneath the lacerated wound;
3. contusion 4 cm x 4 cm on left hand near thumb and index finger meta corpal back;
which according to him were not explained away by the prosecution and which, in the absence of any reasonable explanation from the side of the prosecution for their existence, rendered it likely that the appellants might have acted in self-defence.
6. I have considered the above contention and found it untenable. The mere fact that the three appellants, namely, Yusuf Khan, Hanif Khan and Bhanwaru Khan had also received injuries on their person at the time of the occurrence does not necessarily lead to an inference that they and the other appellants must have acted in heir right of private defence, especially when the 'Marpit' in the instant case has been rightly characterised by the trial Judge as a free fight. It is not a case a where one party was the aggressor and the other party was using force in repelling the attack made on them. The trial court was right it holding up n careful scrutiny of the entire evidence on the record that both the parties entered into the fight with a petty quarrel between Allahdin son of Saduleh Khan deceased and Niyamat Khan son of Labdh Khan with mutual intention to cause bodily harm to each other by using unlawful f ice are in fact both the parties fought with each other In this view of the matter it could not reasonably be said that the appellants were defending themselves against an attack made upon them by the deceased and his party. It is undoubtedly true that the 'Marpit' between the parties was not a pre planned one, but a free fight-may be sudden and unpremeditated as it was in this case. All that is required to constitute a free fight is that both bides must be determined to fight f cm the start and must enter into fight with mutual intention to cause bodily harm to each other by use of unlawful force. In a free fight the question as who started the fight or who was the aggressor and who acted in self defence is not at ail material From the facts and the surrounding circumstances of this case it does not appear that the party of the deceased was an aggressor and the appellants repelled the aggression by using lawful force. Hence, the contention of Mr. V.S. Davie that the right of private defence of person accrued to the appellants is not well-founded.
7. Now I first take up the case of Munir Ahmed, who has been convicted by the trial court under Section 304, Part I. I.P.C. for causing a fatal blow to the head of Sadulehkhan, deceased, with a snarp-edged weapon, i.e., Berchi. In order to bring guilt he me to Munir Ahmed appellant, the prosecution has led evidence of, the eye witnesses and relied upon, the Statements made by the deceased as to the cause of his death aid as to the circumstances of the transaction which resulted in his death. The trial judge has acted upon two dying declarations made by the deceased and on the, testimonies of Saduleh Khan, injure P.W. 1, Yusuf Khan, P.W. 3, Ibrahim Khan, P. W. 4, Bashir Khan, P.W. 5 & Allahdin, P.W. 6 in convicting the appellants Munir Ahmed for culpable homicide net amounting to murder. The learned Counsel for the appellant could not succeed in assailing be overwhelming evidence led by the prosecution in proof of the guilt of this appellant. It is proved by the statements made by the deceased that no other person but Munir Ahmed was the author of the fatal injury received by Sabuleh Khan on his head The first dying declaration made by the deceased was got recorded by Dhanpat Singh, Station House Officer on 24th June, 1976 at 3.20 pm. It is Ex P.28 on the record and it is proved by the statement of Dhanpat Singh, Station House Officer, who was present & heard it emitted by the deceased, The second statement made by the deceased is Ex. P. 9, which was recorded by Shri Chaman Lal Bajaj Munsiff-Magistrate, Ratangarh, on 24th June, 1976 at 4.10 pm. Chaman Lal Bajaj, Munsiff-Magistrate, Ratangarh, has appeared, as a witness on behalf of the prosecution and stated en oath that the dying declaration Ex. P.9 was made be the deceased in his presence & that it has his thumb impression affixed thereto. From the evidence of Dhanpat Singh, Station House Officer and Chaman Lal, Munsiff Magistrate, it is proved that the deceased made two statements at the earliest opportunity relating to the came of his death and to the circumstances of the transaction which resulted in his death and the statements made by him were not the result of tutoring by interested parties. It is further evident from the evidence of Dr. Prem Prakash Gupta that the capacity of the deceased to remember the facts had not been impaired at the time when Chaman Lal Bajaj, Munsiff Magistrate, had recorded his dying declaration. Dr. Prem Prakash Gupta clearly stated in his statement that the deceased was in a fit state to give his statement and was mentally conscious at that time. Hence there are no grounds for viewing the two dying declarations of the deceased with suspicion especially when there is nothing on the record to show that the maker thereof was mentally and physically in a state of confusion Although no corroboration of these dying declarations is needed when the Court is satisfied that they were truthful versions of the deceased as to the circumstances of his death and as to the identity of the assailants, yet the evidence of the eye-witnesses furnished by the prosecution provides necessary corroboration in this case As stated earlier, in his both the statements the deceased implicated Munir Ahmed appellant to be the person who had caused an injure to his head with a sharp-edged Barchi. The eye-witnesses, namely, Saduleh Khan, injured, P.W. 1, Yusuf Khan, P.W. 3, ibrahim Khan, P.W. 4, Bashir Khan, P.W. 5 and Allahdin, P.W. 6 also claimed to have seen Munir Ahmed appellant inflicting an injury on the head of the deceased with a sharp-edged side of his Barchi. The evidence of the eyewitnesses is through out consistent so far as it relates to the part played by Munir Ahmed in the assault made on the deceased The dying declarations made by the deceased ate further corroborated by the medical evidence. The Doctor definitely opined that injury No. 1, i.e., incised wound 12 cm. X 2 cm. X 1 1/4 cm had caused fracture of the right frontal-parietal bone of the head of the deceased with radiating of fracture line to right and left orbital bones also. 'This injury, in the opinion of the Doctor was caused by a sharp edged weapon. Although upon receiving a complaint the Chief Medical and Health Officer, Ratangarh, directed Dr. B.K. Bhargava & Dr V.K. Bhargava to attend the post-mortem examination and to give their separate finding, but these Doctors went to the mortuary at a late stage when Dr. Prem Prakash Gupta had reached upto the brain-matter. The Chief Medical and Health Officer constituted a medical board vide his letter darted 3rd July, 1974, during the life time of the deceased for examination of his injuries also and those of Saduleh Khan injured. The Doctors constituting the medical board examined the injuries but could not give a definite opinion regarding the nature of the weapon used at the time of their infliction. The learned Counsel for the appellants vehemently contended before roe that the fatal injury caused to the head of Saduleh Khan, deceased, was not an incised wound as it could be caused on the head by a blunt weapon also. The above contention has no force in view of the definite opinion of Dr Prem Prakash Gupta that the fatal injury was inflicted on the head of the deceased with a sharp-edged weapon. The Doctors constituting the medical board, and the Doctors who were sent by the Chief Medical and Health Officer to attend the post-mortem examination could not give no definite opinion about the nature of the weapon used' by the assailants at the time of inflicting the injuries on the body of the deceased. There is no material on the record to show or suggest that Dr. Prem Prakash Gupta was in any way interested in the appellants and he conducted the post-mortem examination over the dead body of Saduleh Khan in a partial and unfair manner. It-has also not been brought on the record that Dr. Prem Prakash Gupta was aware of the complaint made against him and of the fact that two other Doctors were asked by the Chief Medical and Health Officer to attend the post-mortem prior to the commencement thereof and that he conducted the examination in a hurried manner despite such knowledge without waiting for the arrival of the two Doctors sent by the Chief Medical and Health Officer. Consequently, there is no room for doubting the nature of the weapon with which fatal injury No. 1. was caused by Munir Ahmed appellant to the head of the deceased.
8. The learned Counsel for the appellants further contended that Munir Ahmed could not have committed the imputed act as he was far off from the place of occurrence at the time when Saduleh Khan deceased had received injuries on his body. The above contention is devoid of substance. It is undoubtedly true that Munir Ahmed set-up the plea of alibi at the trial and led some evidence to substantiate it but the evidence could riot cover and account for the while of the time of the occurrence in question and could not establish that it was impossible that Munir Ahmed could have committed the clime. The trial Judge considered the entire evidence led by Munir Ahmed in support of his plea of alibi are rejected it on grounds mentioned in his judgment, with which I fully agree. The occurrence, in which Saduleh Khan deceased and others received injuries oh their bodies, took place at 1.30 p.m. on 24th June, 1974. The evidence of Satish Chandra D.W. 4, is that Munir Ahmed came to his house at Ratangarh between 1 and 2 pm. on 24th June, 1974 at sought his permission to go home as he had received information about a quarrel in his Mohalla in which his brother had received an injury. Satish Chandra asked Munir Ahmed to apply for have and when the latter presented an application, he sanctioned the leave for that day. After granting leave, Satish Chandra made an entry to this effect in the attendance register Ex. D 10. Satish Chandra was cross-examined at length by the Public Prosecutor. As clearly stated in his cross-examination that he could not say whether or not at 1.30 p.m. on 24th June, 1974, Munir Ahmed was present in his Mohalla and taking part in the 'Marpit'. In the attendance register also no time is shown when Munir Ahmed had left his office after taking casual leave for that day. Satish Chandra could not state the precise time when leave was granted to him upon his application. He merely stated that Munir Ahmed had come to his residence between 1 and 2 p.m. The appellant could reach the place of occurrences, which was not far off from the office of the Rajasthan State Electricity Board, Ratangarh, after taking casual leave for that day at 1 p.m. Hence, the appellants could not succeed in showing that he was else where at the moment of the crime and remained there for such time at would reason ably exclude the probability of his being present at the place of occurrence at the time when the crime was committed.
9. Having regard to the nature of the injury and its effects and taking into consideration the weapon with which it was inflicted on the most vulnerable part of the body of the deceased with considerable force, the trial court rightly held that this injury was caused by Munir Ahmed with the intention of causing death of Saduleh Khan but as his act was covered by exception by to Section 300, I.P.C. he was guilty of culpable homicide not amounting to murder punishable under Part 1 of Section 304, I.P.C. Hence, no interference with the finding of the lower court as to the guilt of this appellant is called for.
10. The learned Counsel appearing on behalf of Munir Ahmed urged before me that Munir Ahmed struck a knife blow to the head of the deceased without premeditation and in excitment and so a severe sentence was not called for and the sentence may be reduced to meet the ends of justice. The above contention has some force. As Munir Ahmed had caused a single blow to the head of Saduleh Khan deceased, which proved fatal a sentence of ten years rigorous imprisonment and fine of Rs. 1000/-, in default one year's rigorous imprisonment is unduly severe. In my opinion, ends of justice would be met if the substantive sentence of ten years rigorous imprisonment is reduced to seven years rigorous imprisonment and the fine of Rs. 1000/-, is reduced to a fine of Rs. 100/- only in default of payment of fine to suffer further rigorous imprisonment for one month
11. Next I take up the case of Bashir Khan and Pir Bux who have been convicted under Section 324, I.P.C. and each of them sentenced to undergo rigorous imprisonment for two years. There is reliable evidence on the record that Bashir Khan inflicted a Barchi blow on the left fore-arm of Saduleh Khan injured, when the latter raised his hand to ward off the blow. Pin Box also inflicted a blow on the head of Saduleh Khan, injured, as a result of which he fell down the leaned Counsel appearing on behalf of the appellant could not succeed in assailing the evidence of the eye-witnesses who had seen Bashir Khan and Pin Box causing injuries to the body of Saduleh Khan injured with a sharp edged weapon, i.e., Barchi. Saduleh Khan, P.W. 1, clearly stated in his deposition that Pin Box and Bashir Khan were armed with Barchis and when he went to the discus of Saduleh Khan, deceased, Bashir Khan and Pir Bux attacked trim with Birchis. Bashir blow fell on his left knee while the blow of Pir Box his his head. The evidence of Saduleh Khan injured finds corroboration in essential particulars by the statement of his son Yusuf Khan and other eye-witnesses, namely, Ibrahim Khan, P.W. 4 and Bashir Khan, P.W. 5, who claimed to have seen Bashir Khan in Pir Box causing out injury each the Saduleh Khan, injured with a starp-edged Barchi. The evidence of Saduleh Khan injured is further corroborated evidence. Dr. Prem Prakash examined Saduleh Khan on 24th June, 1974 at 3.10 p.m. and found an incised wound 6 cm. X 1 1/2 cms X 1 cms on occipital region and another incised wound 2 cm. X 1 cm. X 1 cm. on posterior aspect on upper one fourth of left fore-arm. In the opinion of the Doctor, these injuries could be caused by a sharp edged weapon like a Barchi Hence, the trial court committed no error in convicting Pir Box and Bashir Khau appellants Section 324, I.P.C. for voluntarily causing simple hurt to Saduleh Khan injured with an instrument of cutting, i.e., Barchi. Mr. V.S. Dave, learned Counsel for the appellants, strenuously urged before me that the injuries sustained by Saduleh Khan injured at the hands of these two appellants were simple in nature having no dangerous effect of any kind whatsoever & so the trial judge was not justified in passing a severe sentence of two years' Rule 1. oh each of them The above contention is not devoid of force. Simply because Pir Box and Bashir khan used dangerous weapon like Barchi in causing injuries to Saduleh Khan injured, the offence committed by them would not be one of causing grievous or dangerous injury. It transpires from the prosecution evidence itself that Bashir khan and Pir Bux each gave a single blow to the body of Saduleh Khan injured and did not strike again. The medical evidence does not show that the wounds caused by the blows were grievous or dangerous to the life of Saduleh khan injured. In this view of the matter, the sentence awarded to these to appellants is severe and should be reduced. In any opinion, the ends at justice would be met if the sentence awarded to each of the two appellants Bashir Khan and Pir Bux is reduced to a term of one year's rigorous imprisonment.
12. Next I take-up the cases of the five appellants, namely, Yusuf Khan, Chand Khan Hanif Khan, Bhanwaru Khan and Mst. Patasi, who have been convicted under Section 323, I.P.C. for voluntarily causing simple hurts to Saduleh Khan injured & to Yusuf Khan. At the out set I may observe that the prosecution could not prove its case beyond reasonable doubt against Chand Khan appellant. It was alleged by the prosecution that he inflicted a lathi blow on the body of saduleh Khan, injured. Saduleh Khan injured stated in his examination-in-chief that he was beaten by Ghand Khan also with a lathi, but in his cross-examination he was confronted with and contradicted by portion E to F of his police statement Ex D. 1, where in he did not state that Chand Khan had inflicted with lathi a blow on his body. When confronted with ponior E to F of his former statement Ex. D. 1, Saduleh Khan injured could not afford any reasonable explanation for his omission to mention the name of Chand Khan as one of the assailants. In pontion E to F of his statement, he mentioned the names of Niyamat son of Labdhi Khan, Bhanwaru Khan, Hanif Khan and Isu Khan as the persons who had inflicted lathi blows on his body. The trial court committed an error in ignoring the material discrepancy between the two statements of Saduleh Khan injured on this point. If Chand Khan had inflicted a lathi blow on the body of Saduleh Khan injured, the latter would have surely implicated him in the crime at the time of giving his earliest version to the police. Consequently, I am unable to hold that Chand Khan is not entitled to benefit of reasonable doubt relating to his participation in the assault made on Saduleh Khan injured.
13. As regards the other appellants, namely, Yusuf Khan, Bhanwaru Khan, Hanif Khan and Patasi, there is reliable evidence of all the eye-witnesses that ail of them except Patasi inflicted lathi blows on Saduleh Khan Khan injured while Mst. Patasi caused one simple injury to Yusuf Khan, P.W. 3 with a lathi. Saduleh Khan, injured, clearly deposed in his statement that he was beaten by Yusuf Khan, Bhanwaru Khan and Hanif with lathis when he had rushed to the rescue of Saduleh Khan deceased. The eye witnesses examined by the prosecution corroborated the evidence of Saduleh Khan injured on this point Upon careful review of the entire evidence, I am satisfied that the prosecution has proved its case against Yusuf Khan, Bhanwaru Khan and Hanif Khan beyond reasonable doubt Likewise, it is proved by Yusuf Khan's evidence that he received one injury by bum weapon at the hands of Mst. Patasi when he was trying to save his father Saduleh Khan, injured. The lathi blow struck by Mst. Patasi fell on his left palm. The evidence of Yusuf Khan finds corroboration from the testimony of Ibrahim, P.W. 4 and Bashir Khan, P.W. 5, who claimed to have seen Mst. Patasi inflicting a blow on the body of Yusuf P.W. 3 The Doctor, who examined Yusuf Khan, P.W. 3, also found a contusion 4 cm x 3 cm on the back of his left head at second, third and fourth metacarpals. This injury was simple in nature and caused by a blunt weapon like a lathi. Mst. Patasi, Hanif Khan, Yusuf Khan and Bhanwaru Khan were, therefore, lightly convicted under Section 323, I.P.C. for voluntarily causing simple hurts.
14. As regards their sentence, it was urged by the learned Counsel appearing on their behalf that it is highly excessive in the circumstances of this case. The trial court sentenced Yusuf Khan, Hanif Khan and Bhanwaru Khan each to undergo rigorous imprisonment for one year while Mst. Patasi was sentenced to suffer simple imprisonment for six months, under Section 323, I.P.C. Looking to the nature of the injuries sustained by Saduleh Khan, injured, and Yusuf Khan on their bodies, I feel inclined to hold that the sentences awarded to these appellants by the trial Judge are severe. In my opinion the ends of justice would be met if Yusuf Khan, Bhanwaru Khan Mst. Patasi & Hanif Khan each is sentenced to pay a fine Rs. 100/-, each in default of payment of fine to undergo simple imprisonment for one month.
15. In the result, I partly accept the appeal field by Munir Ahmed and while upholding his conviction under Section 304, part I.P.C. reduce the substantive sentence of ten years rigorous imprisonment to seven years rigorous imprisonment and also reduce the fine of Rs. 1,000/- in default further rigorous imprisonment for one year, to a fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month. Munir Ahmed is already in jail. He shall serve out the sentence awarded to him by this Court.
16. I partly accept the appeal filed by Bashir Khar and Pir Bux and while upholding their convictions under Section 324, I.P.C. reduce the sentence of two year's rigorous imprisonment awarded to each of them to a term of one year's rigorous imprisonment Bashir Khan and Pir Bux have already been under detention from 27-6-74 to 26-6-75. They are entitled to set off this period under Section 428, CrPC against their sentence. Hence, they need not serve out the sentence awarded to them by this Court.
17. I partly accept the appeal preferred by Yusuf Khan, Bhanwaru Khan, Hanif Khan and Mst. Patasi and while upholding their conviction under Section 323, I.P.C. set aside their substantive sentences of imprisonment and instead sentence each of them to pay a fine of Rs. 100/- and in default of payment of fine each to undergo simple imprisonment for one month. Two months' time is given to these appellants to deposit the amount of fine in the trial court, failing which the shall be taken into custody to serve out the sentence awarded to them in default of payment of fine.
18. I accept the appeal filed by Chand Khan and acquit him of the offence punishable under Section 323, I.P.C. He is already on bail and need not surrender to his bail bonds, which are hereby cancelled.