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Bhoor Singh and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal Nos. 589 of 1975
Judge
Reported in1975(8)WLN706
AppellantBhoor Singh and ors.
RespondentState of Rajasthan
DispositionAppeal dismissed
Excerpt:
criminal trial - proper care not taken while getting evidence recorded in matter of identification of recovered articles--held, lacuna is not sufficient to destroy evidentiary value of recoveries.;(b) penal code - section 100--private defense-no foundation for evidence that complainant's injuries were self indicted--no evidence in support of plea of self defense--held, argument is devoid of substance.;penal code - section 34--common intention--existence of prearranged plan is necessary--accused did not lay in wait to attack accused--held, there was no common intention.;it depends upon the facts and circumstances of each case whether the inference of common intern ion should be drawn. it is well established that there must be a pre-arranged plan to infer common intention, though the.....c.m. lodha, j.1. these are two connected matters arising out of the judgment dated 19th may, 1971 by the sessions judge, bikaner, who has convicted and sentenced the accused-appellants as under: convicted and sentenced to1. bhoor singh i) under section 302 i.p.c. for the murder of panneysingh life imprisonment ii) under section 302 i.p.c. for the murder of bhanwersingh life imprisonment iii) under section 323/34 i.p.c. for causing simple hurt to pepsingh one year's ri and fine of rs. 50/- in de- fault 2 months' further ri2. naryan singh i) under section 302 i.p.c. for the murder or panneysingh life imprisonment ii) under section 302/34 i.p.c. for the murder of bhanwarsingh life imprisonment iii) under section 323/34 i.p.c. for causing simple hurt to pepsingh one year's ri and fine of rs......
Judgment:

C.M. Lodha, J.

1. These are two connected matters arising out of the judgment dated 19th May, 1971 by the Sessions Judge, Bikaner, who has convicted and sentenced the accused-appellants as under:

Convicted and Sentenced to

1. Bhoor Singh i) Under Section 302 I.P.C. for the

murder of Panneysingh Life imprisonment

ii) Under Section 302 I.P.C. for the

murder of Bhanwersingh Life imprisonment

iii) Under Section 323/34 I.P.C. for causing

simple hurt to Pepsingh One year's RI and

fine of Rs. 50/- in de-

fault 2 months' further

RI

2. Naryan Singh

i) Under Section 302 I.P.C. for the

murder or Panneysingh Life imprisonment

ii) Under Section 302/34 I.P.C. for the

murder of Bhanwarsingh Life imprisonment

iii) Under Section 323/34 I.P.C. for causing

simple hurt to Pepsingh One year's RI and

fine of Rs. 50/- in de-

fault 2 month's fur-

ther RI

3. Pratap Singh

i) Under Section 302 I.P.C. for the

murder of Bhanwarsingh Life imprisonment

ii) Under Section 302/34 I.P.C. for the

murder of Panneysingh Life imprisonment

iii) Under Section 323 I.P.C. for causing

simple hurt to Pepsingh One year's RI fine of

Rs. 50/- in default two

months' further RI

4. Raghu Nath Singh

i) Under Section 302 I.P.C. for the

murder of Bhanwarcingh Life imprisonment

ii) Under Section 302/34 I.P.C. for the

murder of Panneysingh Life imprisonment

iii) Under Section 324 I.P.C. for causing

injury to Persingh Three years' RI and

fine of Rs. 50/- in

default two months further RI

2. Appeal No. 589 of 1971 is a joint appeal by all the four accused appellants Revision No. 618 of 1071 is by the State for enhancement of the sentences awarded to the accused We shall dispose of them together by this judgment.

3. A trifling dispute about grazing of sheep and she goats resulted in the incident in question in which two unfortunate persons Panneysingh and Bhanwarsingh lost their live and PW/4 pepsingh, their third brother, received injuries by sharp weapon is well is by blunt weapon. The field of the accused, who are all brothers, is situated contiguous to the field of PW/5 Jethusingh through which there is a way leading to the field of the deceased form the abadi of village Suva, Police Station Deshnoke. The field of the deceased is also contiguous to the field of Jethusingh on the western side. On 3rd December, 1970 the accused Raghunathsingh glazed a herd of sheep and she goat in the field of the deceased on account of which the grass standing in the field was damaged. The deceased Bhanwesing thereupon objected and remonstrated to Raghunasingh as to way he grazing there in his field. Raghuuathsingh, however, took a defiant attitude & challenged Bhanwarsingh that he would not stop grazing his sheep and Bhanwarsingh may do whatever he liked. Alter some time he drove the herd of the sheep out of the field to his own field and there the matter ended for the time being. On the may day i.e. 4th December, 1970, the day of occurrence, Bhanwaisingh was taking a cart loaded which grass from the field to the village On the way he met the accused Bboorsingh and Pratapsingh, who where coming from the village on a camel There was exchange of hot words between them and may be, display of some violence also. However, the prosecution case is that Bhanwarsirgh behaved in a submissive manner and went to the village and complained to PW/1 Pannalal' Sarpanch about the unwarranted act of the accused in grazing their sheep in his field and then becoming aggressive. Pannalal came to she spot just to verify the correctness of the complaint made by Bhanwarsingh In the afternoon at about 5 pro, when Bhanwarsingh was coming back to his filed from the village in his cart accompanied by his brother Panneysingh, the accede perens saw them from their field Raghuuathsingh was grazing sheep and Bhoorsingh, Pratapsingh and Narayansingh were working at the thrashing floor. While Bhanwarsjogh and Panneysingh were passing through thusingh's field where there is a way leading to their field, all the four accused came and surrounded them. Bhoorsingh and Narayansingh were armed with 'kassies'. Raghunathsingh had an axe and Pratapsingh bad a 'lathi'. Bhanwarsingh and Panneysingh tried to run away, but the assailants over took them. Bhoorsingh and Marayansingh took charge of Paunethsingh and Raghunathsingh and, Pratapisingh obstructed Bhanwarsingh Bhoorsingh and Narayansingh started beating Panneysingh mercilessly with their 'Kassies Raehunathsingh dealt a blow with an axe on the face of the deceased Bhanwarsingh and Partaking dealt a lathi blow to him. The hue and cry raised by Panneysingh and Bhanwarsingh attracted the attention of PW/4 Pepsingh who was working in his field He hushed to the spot and so also Jethusiagh $ho was in on field came there. Pepsingh tried to intervene but he too was bitter by Raghunathaingh and Pratapsingh Jethusingh saw the whole incident, but dare not intervene as i.e. was afraid of his own life. Bhanwarsingh died at the spo', whereas Panneysingh was taking his last breathe. Meanwhile, PW/l Pannalal, Sampans, arrived absinthes spot, Pepsingh and Jethusingh took Panneysingh in a bullockcart to the Police Station, Deshnoke but he died on the way.

4. A First Information Report of the occurrence was lodged verbally by Pepsingh at Police Station, Deshnoke at 11.00 p.m. the same night. The report was taken down by the Head Constable Bhairunsingh under the supervision of the Station House Officer PW/9 Pratapsingh. It has been marked Ex. P/2 on the report. The examination of injuries of Pepsingh and the post mortem examination of the died bodies of Pannysingh and Bhauwarsingh took place on 5th December, 1970. The necessary inebriation was conducted by PW/9 Pratapsingh on the spot. All the, four accused were arrested on 6th December, 1970 The Station House Officer seized the blood-stained Dhoti of the accused Bboorsinqh which he was posting on this person ac the time of his arrest (vide recovery memo Ex. P/14). He also seized the blood stained shirt of the accused which tie was putting on his person at the time of his arrest (vide recovery memo (Ex. P/15) An injury on the bead of Raghunathsingh was noticed at the tune A his arrest. He under wary, shirt and sweater had also stains of blood and, therefore the station House Officer seized the same vide recovery memo (Ex. P/13) While in police custody, the accused Btoorsingh informed the Station. House Officer that he had concealed the 'kassi' in the kitchen of hid houses and we prepared co gat it recovered. The information memo is (Ex. P/25) and the recover memo of the 'kaasi' recovered at the instance of the accused Bhoorsingh is (Ex. P/10) Accused Nararyansingh also informed the Station House Officer that he hid concealed his 'kassi' in the verandah of his house and as prepared to gat it recovered. The information memo is (Ex. P/26) and the recovery memo of the 'kissi' recovered at the instance of the accused Narayaingh is (Ex. P/11). Accused Pratapsingh gave information (hat he had concealed His tick under the heap of the grain in his field and was prepared to get it recovered The information memo it (EX. P 27) and the recovery memo of the stick recovered at the instance of accused Pratap Singh is (Ex. P.9). Raghunathsingh also inform de the Station House Officer that be bad concealed his axe in his house nod was prepared to get it recovered. The information memo is (Ex. P 28) and the recovery memo of the axe recovered at the instance of the accused Raghunathsingh is (Ex. P 12). The clothes as well as the weapons of offence suspected to be blood stained were seat for chemical examination. Tnus after completing the investigation the Police prosecuted, the accused under Sections 302, 302/34, 307 and 307/34 I.P.C.. Ultimately after trial, they were convicted and sentenced as mentioned above.

5. We shall first take up the appeal by the convicts. Mr. Bhimraj learned Counsel for the appellants has urged that the two eye witnesses namely, PW/4 Pepsingh and PW 5 Jethusingh are not reliable and the corroborative evidence regarding recovery of the clothes of accused and the weapons of offence is also infirm and open to serious challenge. He has contended that the case is not proved against any of the accused In the alternative he has submitted that the court below committed an error of law in making the accused constructively liable under Section 34 I.P.C. as they had common intention to commit any offence much less the offence of murder. In this connection he has also urged that the learned Sessions Judge has not given due attention to the injuries found on the person of Raghunathsingh, which lead to a reasonable inference that whatever injuries were caused by the accused to the completed party were caused by them in exercise of their right of private defense of pertain. Lastly, Ire has argued; that in any view of the matter, none of the accused should have been sentenced under Section 302 or 302 read with Section 34 I.P.C..

6. The direct evidence in the case consists of the statements of PW 4 Pepsingh and PW 5 Rethusingh. Both these witnesses, by and large, have supported the prosecution story in all the essential details. It is true that PW 4 Pepsingh is the brother of the deceased. But this relationship by itself is no good ground for taking his evidence on discount. The medical examination revealed the following injuries on his person:

1. Incised wound vertical 2' x 1/2' x scalp deep on right partial bone caused by sharp weapon.

2. Swelling 1/2' x 1/2' on left parietal laterally. It is simple, caused by blunt weapon.

3. Pain in right arm upper 1/3rd. No external injury was visible. It was simple and caused by blunt weapon.

4. A lacerated wound 21/2' x 1/12' x skin deep. On right fore arm middle 3rd postero medially. This injury was caused by blunt weapon.

5. A contusion red 3' x 1/2' on back left aide middle third. It was simple and caused by blunt weapon.

PW/10 Dr. Satish Khincha has further stated that during of the injuries was about 17 hours. These injuries were also x-rayed. The x-rayed report, Ex. P 33, however, shows that injuries No. 1 and 3 were simple. It is also undisputed that the field of Pepsingh where he is said to be present at the time of occurrence is contiguous to the field of Jethusingh where the occurrence took place. Again, it was Peosirgh who lodged the First Information Report and took Panneysingh to the Police Station in a serious condition in a cart. He reached the Police Station, Deshnoke at 11 a.m. in nigh. The distance between the place of occurrence and the Police Station, Deshnoke is ten miles All these facts namely, the presence of injuries on his person, the location of his field and the fact of lodging of the First of formation Reports by him promptly leave no manner of doubt that this witness was present at the place of occurrence when the occurrence took place We have gone through his statement very carefully and are satisfied that be had witnessed the occurrence and had also been a victim of the result made by the accused. He has clearly stated that Bhoorsingh and Narayansingh gave a number of blows to Prunneysingh with the 'kasei' which they had their bands and Pratapsncgh arte Raghunathsingh had beaten Bhanwrsingh. He further states that when he tried to intervene, the accused Raghunathsingh struck a blow with an axe from its sharp side on his herds. On his point, he s corroborated by the medical evidence which shows that there was an injury by a sharp weapon on his head. He further slates that Praspsingh struck a blow with lathi on his light wrist. On this point also, be is corroborated by the medical evidence which shows that there was a lacerated wound on the right fore arm middle third postern medially. The statement of the witness that a number of blows with kassies (which is a sharp aged weapon were given by the two accused Bhoorsingh and Narayansingh to Panneysingh is also corroborated by the post mortem report prepared by PW/7 Dr. Kishanlal, who has stated that the following injuries were found on the dead body of Panney Singh:

1. Incised wound 4' x 1' and 1/2' into bone deep on the anterior aspect of the scalp extending mid of fore head and longitudinal and extending anterio posteriori directed Bone is exposed and there is injury mark on the bone, which is longitudinal 1' long.

2. Incised wound 4' x 1-1/2' x bone deep on the lateral aspect of the scalp 4' above the left ear, and 1' away from the left eye. Directed anterio posteriorily. Bone shows depressed fracture of wings of sphenoid and temporal bone of left side of skull. Few bone pieces were missing.

3. 'T' shaped lacerated wound was present on the middle of scalp 2' x 2' and bone deep clotted blood was present.

4. Incised wound 2' X 2' bone deep present on the middle scalp, 1' anterior to the tale of head and is obliquely and horizontal.

5. Incised wound 4' x 1/2' horizontally present on the occipital region exposing bone. There was clotted blood present on the base of the wound.

6. Incised wound 2' x 1/2' present on the right temporal region 3' above the right ear and extending the anterio posteriorily.

7. Incised wound 1/2' x 2' present in scalp 6' above the left ear and is horizontal and bone deep and exposing bone.

8. Incised wound 2' x 2' present on the left side of the fore head horizontal 1/2' above the eye brow bone deep and exposing bone.

9. Incised wound 1' x 2' horizontal present 1' behind the tale of head. Bone deep and exposing bone.

10. Incised wound 1/2' x 2' was present 1' below the first wound. Bone deep and exposing bone.

11. Incised wound 1' x 1/2' present on the left occipital protuberance horizontal and exposing bone which also show the injury to the bone.

12. Incised wound 1/2' x 2' was present on the lateral aspect of right upper arm 3' above the right elbow joint.

13. Incised wound 1' x 1/2' was present on the skin of right leg. 1/2' deep exposing muscle and muscle piece was hanging out.

7. Now, as regards Bhanwarsing, the witness states that Raghunathsingh struck Bhanwasingh on his mouth by the sharp side of the axe. However it appears from the statement of Dr. Kishanlal and the post mortem examination report of Bhanwarsingh prepared by Dr. Kishanlal that there was no injury caused by a sharp weapon on the dead body of Bhanwarsingh. Dr Kishanlal found the following injuries on the body of Bhanwarsingh:

1. Horizontal lacerated wounds 2' x 1/2' on the inner aspect of upper lip including gums above the upper incisor teeth. Upper teeth became slightly loose.

2. There was incomplete tearing of the base of gum and gums of right lower incisor and canine which became incompletely dislocated. There is longitudinal fracture of mandible.

3. There was abrasion 1/2' x 2' longitudinally placed on the dorsum of left hand.

4. Small rounded abrasion was present on the dorsum of middle finger of right hand.

All the wounds and abrasions were anti-mortem in nature.

Bruises:

1. There were two bruises each was 8' x 1/2' present on the lateral aspect of chest and front of chest which were oblique and parallel to each another, which showed brushed discoloration.

2. There is oblique and longitudinal bruises present on the left side of back which shows ecchymosed and automata.

3. There were two abrasions on the dorsum of left hand and thumb which were 1/2' x 2' with bluish red discoloration and horizontal.

4. There is contusion on the lateral side of check below the left eye. 1' x 1/2' shows bluish red discoloration.

5. There was longitudinal bruise on the chin 1' x 1/2'.

All the bruises and abrasions were ante mortem in nature

In cross examination Dr. Kishanlal has stated that injuries No. 1 and 2 of Bhanwarsingh may have been caused by one stroke from that blunt side of an axe or by a lathi or they may be caused by two strokes of blunt weapon. Thus PW/4 Pepsingh is not corroborated by medical evidence in respect of the blow with an axe attributed by him to Raghunathsingh. But for this discrepancy, the effect of which we shall consider a little later while dealing with the case against Raghunathsingh, we do not find any other infirmity in his statement on the basis of which the witness may be discredited or may be considered as unreliable. Learned Counsel has urged that that part of story narrated by this witness that on receiving 'kassi' blows Panneysingh sometime stood up and then fell down is unnatural. However we are unable to accede to this submission. All that the witness has stated is that Panneysingh on occasions fell down to the ground and then stood up. There is nothing on the statement of the doctor to show that this was not possible. May be that, the victim could rise from the ground before the more serious injuries were inflicted on him. In our opinion, nothing turns upon this contention.

8. The statement of PW/5 Jethusinsh also appears to us to be quite convincing. His presence at the spot is very natural because the occurrence undoubtedly took place in his field, as the dead body of Bhanwarsingh was found there and so also blood stains earth. He has started that there is a way passing through his field and be was in his field at the time of occurrence. He further goes on to state that when Bhanwarsingh and Panceysingh were passing on the way which lies in his field, all the four accused came there and gave beating to the deceased as well as Pepsingh PW/4. He has given the same narration of the actual incident as given by PW/4 Pepsingh and nothing has been brought out in cross examination to discredit his testimony.

9. From the statements of PW/4 and PW/5 namely Pepsingh and Jethusingh, we are satisfied that Bhoorsingh and Narayansingh caused injuries to Panneysingh. We are also satisfied that Raghunathsingh and Partapsingh caused injuries to Pepdsingh. As regards the injury on the face of Bhanwarsingh ascribed to Rashunithsingh, Mr. Sbishodiya, learned Public Prosecutor has contended that PW/4 Pepsingh committed a mistake in describing it, in as much as even though he may not have noticed accurately whither the injury was inflicted by the sharp side of the axe or by its wrong side, he has on his imagination stated that injury was inflicted by Raghunathsing to Bhanwar Singh by the sharp side of the axe. Otherwise the evidence is consistent, argues Mr. Shishodiya, that an injury with the axe was inflicted by Raghaunathsingh to Bhanwarsingh as stated by both the witnesses PW/4 Pepsingh and PW/5 Jethusingh Mr. Shishodiya has submitted the it reared being had to the facts and circumstances of the case, there is very likelihood that the injury must have been inflicted by Raghunathsingh by the wrong side of the axe. It may be pointed out that Jethusingh is silent as to from which side of the axe the blow was give to medical evildoer shows that the injuries on the face of Bhanwarsingh which are a lacerated wound and a fracture of mandible, could have been caused only by a blunt weapon At this stage, we may memo out that the even in the FIR which is the first version of the prosecution it is mentioned that Raghunathsingh dealt a blow with an axe on the face of Bhanwarsingh from the sharp side. There is a further statement in the FIR that Reghunatbsingh hit Pepsingh from the wrong side of the axe on his right shoulder. Thus it is clear that Pepsingh wag quite careful in describing the bloke with the axe and at one place be described it as from the sharp side of the axe and at another place from the wrong side of the axe. He was not making the statement casually Hence, in face of the clear assertion by Prosing we consider it unsafe to presume that Raghunathsirgha may have stun Bhanwarsingh from the wrong side of the axe particularly when the injury could be caused by a lathi also which the other assailant Pratapsingh is said to be wielding. Ware, therefore, not inclined to hold Raghunathsingh responsible for injuries No. 1 and 2 found on the face of Bhanwarsingh which proved to be the cause of his death.

10. We may state, here, that the evidence of these two witnesses namely Pepaingh and Jethusingh is corroborated by the recoveries made at the instance of the accused, Learned Counsel for the accused-appellants has no doubt urged that the weapons of office as well as the clothes recovered from the persons of the accused hive not been found to be stained with blood blood, as the Serologic has reported tint no blood groups could be determined, and, therefore, much reliance cannot be placed on this evidence. He has also pointed out that the articles recovered have not bean properly identified and particularly in the case of 'kissies' it had not been proved as to which 'kassi' was recovered at the instance of which accused. It does appear to us that white getting the evidence recovered proper care has nod been taken is the matter of Gentrification of recovered articles. But, in our opinion, this lacuna on the part of the prosecution does not completely destroy the evidentiary value of the recoveries and, therefore, this evidence may be used to lead support to the direct evidence However, we wish to make it clear that on the direct evidence of PW/4 Pepsingh and PW/5 Jethusingh alone, we are fully satisfied that the prosecution story is substantially correct.

11. We may now take up the argument raised by learned Counsel in respect of private defense of person. It is true that Raghunathsingh had injuries on his body at the time of his airiest. He was examined by Dr. Gopal Lal PW 6 Medical Officer, Deshnoke who has stated that be examined the injuries of Reghunathsingh accused on 8th December, 1970 and the following injuries were found on his person:

1. Lacerated wound 7' x 1' right parietal region of the vertex.

2. Abrasion 1' x 1' dorsal surface of the right thumb.

12. Both these injuries were simple and caused by blunt weapon, The injuries were examined on 8th December, 1970 at 5.30 p m and the injury report is Ex. P 7. He has opined that there injuries may be self inflicted or may not be self-inflicted. He has further stated that he has cot mentioned the duration of these injuries in the injury report Ex. P 17. It may be noticed that the injuries are vary minor None of the two by witnesses namely PW 4 Pepsingh and PW5 Jetunishg has been put any question in cross-examination regarding the injuries if Raghunathsingh No such suggestion has been made to any of these two witnesses that during the occurrence or at the commencement of the occurrence Rome body from the complainant's side attacked Raghunathsinga, None of the accused has come forward with the version that Raghunathsingh was injured in course of the incident the question. Raghunathsiogh himself has pleaded alibi and has selected that he was not there on the spot at all There is, therefore, nothing on the record to throws that these injuries were caused to Raghumhsingh in the course of incident in question. The doctor does not exclude the injuries being self in tethered Is nothing on the record to show as to when these may have been likely caused and for aught we know, Rathunathsingh may have received there injuries a day prior to the date of the inident at the hand of somebody from the complainant's party when he was fazing his herd of sheep in the complainant's field or, may be, that he might have received injuries at some other point of time at the hands of somebody else. Nothing definite can be said as to at whose hands and at what point of time Raghunathsingh received these injuries. No foundation has been laid down by the defense in the course of trial that there injuries were inflicted by one of the deceased or Pepsingh at the commencement of the incident and there are no commencement loading to that inference We ire therefore, unable to accept learned Counsel contra tact that it was on account of the injuries received by Raghunathsingh that this incident tock place and whoever injuries were caused by the accused to the de ceased or PW4 Pepsingh were inflicted in exercise of their right of private defense of person. We, therefore, over-Rule; this contention.

13. Alternatively learned Counsel has also invited oar a then ion to the statements of the accused Bhoorsingh and Pratapsingh Bhoorsinah has stated that when he and his brother Pratapsingh were cutting grass in their field, Panneysingh, Bhanwarsingh & Pepsingh came to beat them & it was in exercise of their right of private defense that they inflicted injuries to Pepsingh and Bhanwanisgh Pepsingh has stated that he had given the beating in his own defense. It may be noticed that there was no injury on person of ether of these accused. No cross examination has been directed to one of the eye witnesses suggesting that Panneysingh, Bhanwarsing and Pepsingh had gone to the field of the accused and beaten them. The defense has not examined any evidence in support of its plea of self defense. In our opinion, this argument is devoid of substance.

14. The last and the most important question falling for determination is as to for what offence each of the accused should be punished A number of decided cases have be en cited before us from both the sides. The argument of the learned Counsel for the appellants in this regard is that there is nothing on the record to show that all the accused had come together and/or at any point of time these was conspiracy among them to commit any office much less the offence of mercer and, therefore, the contention of the learned Counsel is that each accused must be held liable for his own individual act. On the o her hand, Mr. Shasodiya, learned Public Prosecutor has been at pains to show that the weapons of offence and the way in which the victims were attacked coupled with the circumstances that all of them came together, surrounded the victims and chased them thereafter, must inevitably lead to the conclusion that each one of them shared the common intention of causing death of Panneysingh and Bhanwarsingh by inflicting injuries sufficient in the ordinary course to cause death.

15. We have given our anxious consideration to this aspect, of the case. We may observe straight-way that we do not consider it necessary to refer to the plethora of authorities cited by either aide as we are of opinion that it depends upon the facts and circumstances of each case whether the inference of common intention should be drawn. It is well established that there must be a pre-arranged plan to infer common intention, though the interval between the formation of the plan and the actual execution of it may bravery little. Now, let us look at the facts of this case from that stand-point. It appears to us the when Bhawarsingh was taking a cart loaded with grass from his field to village, there WAS some exchange of dot words between Bhanwrsingh on the one hand and the accused Bhoorsingh and Pratapsing on the other The incident, however, did not take serious turn Bhanwarsingh took has way to the village and the accused also went back to their field and got bay with their work. As is clear from the evidence of the two eye witnesses, Right Rathsingh accused was gaga the should in his field and the other three accused were working on the thrashing for Seeing Bhanwarsingh passing on the way in Jethusnigh's should all the for accused with whatever weapons they bad with them at the memo rushed towards Bhanwarsingh There is no evidence that any on of the accused gave a call & all of them collected and and then proceeded to the scene of occurrence. So also it is not the prosecution case that after Bhanwarsingh had left for the village, an the accused lay the wait to attack him on his return up. Ware, therefore, of opinion that there was no pre-arranged plan among the accused.

16. Considerable emphasis has been laid by the learned Public Prosecutor on the fact that all the accused surrounded both the deceased Panney Singh and Bhanwarsingh while the latter were in the cart and thereafter chased them when the victims tried to run away for their lives and simultaneously gave beating to Panneysingh and Bhanwarsing by dividing themselves in two groups. In this connexion, he has also referred to the statement of PW/5 Jethusingh wherein Jethusingh has stated that all the four accused threatened Bhanwarsingh and Panneyaingh that they would be done to death as they had prevented the accused from grazing titer sheep. This statement of Jethusingh appears to us to be an embellish mete and an exaggeration PW/4 Pepsingh ban made no such statement More over, this port of the statement of Jethu Singh appears to us to be incorrect, for the reason that if the accused hid decided to kill Panneyasing and Baanwarsicqh on account of their having been prevented from grazing their sheep the the field of the complainants, they could have attacked Bhanwarsingh earlier when tie was going alone with the loaded cart to the village. That appear to us unnatural also for the reason that it they had started from their field with the intention to put the victim to death, then there was no necessity for there to utter these words at the time of attacking the victims. In our opinion, the accused had come to the spot and were face to face with Bhanwarsingh and Panneystnah without having formed any common intention But it is cleat from the evidence of the two eye witnesses that Bhoorsingh end Narayansingh both gave a Merck's beating to the accused anon baying on account of which Panneysingh received as mayday as 12 incised wounds out of which 10 incised wounds landed on his head Both of them had a very formidable weapon each namely, 'kassi', a sharp-edged agricultural implement with blade 6' in length held by a wooden handle about 5' long In these circumstances, it would be reasonable to infer that the act of both he assailants namely, Booorsingh and Narayansingh by which the death of Panneysingh was caused, was done with the intention of causing such bodily injury as was likely to cause death. Most of the blows by both the accused were inflicted on a vary vital part of the body i.e. the head. Thus, to be on safer side we are inclined the hold both Bhoorsingh and Nirayaosingh guilty under Section 304 part II CPC for causing the death of Panneysingh.

17. As regards Raghunathsingh, there in DO clear and convincing evidence, as already stated above, that he had inflicted a blow with an ax on the mouth of the deceased Bhanwarsingh, He has been held guilty under Section 302 I.P.C. for causing the death of Bhauvarsingh. But since be has been ascribed only one blow, as already discussed above, is not clear and convincing we give benefit of doubt and a quit be of the charge of murdering Bhanwar singh. However, it is proved by overwhelming evidence that he dealt a blow with an axe to Pepsingh PW/4, He has, therefore been rightly Codices under Section 324 IJTC for causing simple hurt by a sharp weapon to Pepsingh. His conviction under Section 324 I.P.C. and sentence of three years rigorous imprisonment and a fine of Rs. 50/- under this count are maintained.

18. Now, it remains to consider the case of Pratapsingh. He is said to have inflicted blows with a lathi to Pepsingh for which he has been convicted under Section 323 I.P.C. and sentenced to one year's rigoroue imprisonment and a fine of 50/-. In our opinion, his conviction and sentence under this count are proper and are hereby maintained. He also infected blows with a lathi to the deceased Bhanwarsingh. The fatal injury on the face of the deceased Bhanwarsingh, as already stated above cannot be attributed to him as there is no evidence that he was the author of this injury, However, he is guilty of causing simple hot to Bhanwarsingh. His conviction under Section 302 I.P.C. for causing the death of Bhanwarsingh is set aside and instead he is convicted under Section 323 I.P.C. for causing simple hurt to Bhanwarsingh and sentenced to one year's rigorous imprisonment.

19. As a result of the foregoing discussion, we partly allow this appeal and modify the judgment of the trial court as below:

20. The accused appellant are convicted and sentenced as under:

Accused Bhoor singh and Narayansingh are convicted under Section 304 part I, I.P.C. for causing the death of Panrjeytingh and are sentenced to ten years rigorous imprisonment each.

Accused Raghunathsingh is convicted under Section 324 and 323 I.P.C. end the sentences imposed there under by the lower court are maintained.

Pratapeingh's conviction Under Section 323 I.P.C. for causing simple hurt to Pepsingh PW/4 is maintained. He is convicted under Section 323 I.P.C. for causing simple hurt to the deceased Bhanwarsingh and is sentenced to one year's rigorous imprisonment.

The rest of the convictions & fen tense imposed upon the accused by the lower court are set aside.

21. All the accused will be entitled to set off the period of detention undergone during the investigation, inquiry or trial and before the date of conviction and their liability to undergo imprisonment shall be restricted to the remainder, if any of the term of imprisonment imposed on them.

22. In view of our decision of the appeal by the accused, the revision filed the State fails and is hereby dismissed.


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