1. One Roopa Jat lodged an F.I.R. in the, police station Chohtan, District Barmer, on 16th September 1980, alleging that Harji s/o Bhagwan has informed him that Shera, Pola, Chautha, Ugra, Ishna, Sona, s/o Harchand, Deva s/o Lalal Jattan have beaten sanwakr s/o sons Jat of Taratara village, who has come to take water from the well of village Tara-tara, seven accused persons who were on the well, came near Sanwala and starting beating him. In doing so, Shera caught hold of Sanwala and Sona gave lathi blow on the head of Sanwala. On account of it, Sanwala fell down. Thereafter, Ugra and Pola gave lathi blows and, Chautha, Ishra, Deva gave fists blows. Sanwala became unconscious and was being taken to hospital but he breathed his last at the bus stand Sanwlor.
2. After investigation, the police committed seven persons accused under Sections 148, 147, 302, 302/149, 302/147, I.P.C. After the committal proceedings, seven accused persons were tried by the learned Sessions Judge. Balotra, who examined as many as 17 prosecution witnesses, namely, Harji (P.W. 1), Shna (P.W. 2), Dera (P.W. 3), Mangal Singh (P.W. 4), Amarsingh (P.W. 4), Ganesha (P.W. 6), Smt. Tulchi (P.W. 7), Pokar (P.W. 8), Bhikha (P.W. 9), Dr. Nimraj (P.W. 10), Deepa (P.W. 11), Hira (P.W. 12), Rau (P.W. 13), Chima (P.W. 14), Roopa (P.W. 5), Bhagwan Singh (P.W. 16), and Jogaram (P.W. 17). The prosecution also produced and got proved a number of documents, viz., Memo of discription of dead body of Sanvala (Ex. P. 1). Receipt of Seizure Memo of blood stained clothes of deceased Sanwala (Ex. P. 2) receiving the dead body (Ex. P. 10) Memo of site inspection (Ex. P. 3), site plan (Ex. P. 4), Seizure memo of a 'Angocha' (Towel) of deceased Sanwala (Ex P. 5). Seizure memo of shoe of deceased (Ex. P. 6), Seizure memo of blood smeared and control soil (Ex. P. 7), Recovery memo of one Lathi at the instance of accused Shera (Ex. P. 8) Recovery memo of blood smeared one shirt and one 'tevola' at the instance of accused Shera (Ex. P. 9), Recovery memo of two pieces of lathi at the instance of accused Devi (Ex. P. 10), Statement of Shri Pokar in police (Ex. P. 11), Post mortem report (Ex. P. 12), Statement of Shri Chima i(sic) police (Ex. P. 13) Arrest and personal search memo of accused Chautha (Ex. P. 14), Arrest and personal search memo of accused Doonga (Ex. P. 15), Arrest and personal search memo of accused Sona (Ex. P. 16), Arrest and personal search memo of accused Pola (Ex. P. 17) Arrest and personal search Memo of Issara (Ex. P. 18), Arrest and personal search memo of Accused Deva (Ex. P. 19), Arrest and personal search memo of accused Shera (Ex. P. 20), Written report by Roopa to S.H.O. Police Station Chautha (Ex. P. 21), memo of information regarding Lothi, shirt & 'Tevala' by accused Shera (Ex. P. 22 & P. 23) respectively, memo of information regarding lathi by accused Deva (Ex. P. 24), Memo of information regarding lathi by accused Sona (Ex. P. 25), Recovery memo of lathi at the instance of accused Sona (Ex. P. 26) Memo of information regarding 'Panjali ka Tatta' by a accused Chautha (Ex. P. 27) Recovery memo of blood stained 'Panjali ka Tatta' at the instance of accused Chautha (Ex. P. 68), Statement of Hira in Police (Ex. P. 29) Statement of Deepa in Police (Ex. P. 30). First information report No. 62 lodged by Roopa at police station Chauhtan (Ex. P. 31), Letter of S.P. Barmer to the Chemical Sxaminer SMS College, Rajasthan Jaipur (Ex P. 32), Report of the Serologist & Chemical Examiner Government of India, Calcutta (Ex. P. 33).
3. Accused denied allegations but did not produce any defence evidence.
4. On the conclusion of the trial, after hearing the arguments, the learned Sessions Judge convicted Sonaram & Shera, the present appellants, under Section 302 read with Section 34, I.P.C. and sentenced them to life imprisonment, against which these appeals have been filed. The learned Sessions fudge acquitted all other five accused persons. While doing so, the learned Sessions Judge held that prosecution has examined seven eye witnesses, but out of them six are wholly unreliable and only one witness namely Harji (PW 1) is partially reliable. Placing reliance upon the testimony of Harji (PW 1), who was corroborated by the medical evidence and also the recovery of blood stained lathis from these two appellants the conviction was recorded against the present appellant.
5. Shri B.R. Mehta, the learned Counsel for the appellants, has read over before us the judgment of the trial court and the statement of Harji (Ex. P. 1) and the medical evidence. It was contended by Shri Mehta that Harji (P.W. 1) has been disbelieved by the trial court so far as the story about the involvement of other five accused persons is concerned, and when major part of his version is disbelieved, it is not safe to convict Sona & Shera, the appellants on the sole testimony of such an unreliable witness. It was also pointed out that only one injury has been caused on the head and so far as Sona appellant is concerned, the allegation is of one injury only. Since all other accused except Sona & Shera have been acquitted and the deceased has received in all 42 injuries. It would be unsafe to fasten the liability of these 42 injuries on accused sons and Shera. Shri Mehta stated that against Shera only allegation is that he caught hold the deceased and later on, after the deceased fell down, he also gave one or two blows causing injuries, afact which has not been corroborated by the medical evidence as there is no lacerated wound near the ear of the deceased.
6. Shri Mehta then argued that in any case, at the most, the offence can be of Section 325 I.P.C. and not more. It was pointed out that the village people keep lathis and 'Geddi' with them usually and one lathi or 'Geddi' blow is given by Sona, the appellant and one two by Shera, the appellant. It cannot be said that either they intended to cause death or they had knowledge of injuries likely to result in death. Sh. M.C. Bhati, the learned Public Prosecutor has controverted the above allegations of Shri Mehta and, argued that the deceased was beaten mercilessly in as much as 42 injuries have been caused and no part of the body was spared. Shri Bhati stated that the intention of causing 42 injuries could not have been none except to cause death of the deceased and in any case, looking to the nature of the injuries it can safely be assumed that the accused had knowledge that these injuries would cause death in the normal course.
7. We have carefully considered the above submissions of the learned Counsel for the parties and also gone through the entire relevant record of the dase. According to medical evidence of Dr. Nimbraj (PW 10), the deceased, Sanvala, received 42 injuries, out of which relevant injuries for the purpose of the present appellants are injury No. 1, Size 1 3/4' X 1/2' X 1/2' on the right side scalp light parietal region blood clothes found under right parietal bone: injury No. 16 Contusion (blue) size 1 1/2' X 1 1/4' on the left eye lids: injury No Abrasion size 1' 1/3' on the left mastold region. According to Shri Bhati, injury No 1 was caused by Sona and injury Nos. 16 & 40 were caused by Shera.
8. It is true that in all seven accused persons were challaned by the police, for the murder of Sanwala, the deceased. It is also true that out of them, except Shera and Sona, all have been acquitted by the trial court. It is further true that prosecution produced seven eye witness and six of them have been completely disbelieved by the trial court. Shri Mehta is further correct when he submitted that even solitaty witness, Harji (PW 1) has been disbelieved so far as he implicates the five accused, acquitted by the trial court But on the above bedrock the acquittel of Sona and Shera cannot be claimed as legal and logical corollary. It is established law that the court is required to separate wheat from the chaff and the maxim of in uno falsun in omnibus is not applicable in India in precision of evidence. That being so. I am not prepared to accept the tall contentions of Shri Mehta that Sona and Shera should be acquitted only on the above grounds.
9. However, this requires a more close scrutiny of the statement of PW 1, Harji, on whose sole testimony accused have been convicted. It is pertinent to note that the name of witness Harji (P.W. 1) has been mentioned in the First Information Report and so also the name of these two appellants accused. It is also important to note that from the very beginning the case of prosecution is that Shera caught hold of Sanwala and Sona gave lathi blow, on account of which Sanwala fell down and then all accused gave either lathi blows or first blows. It would thus be seen that the story regarding participation of Sona and Shera, the applicants, is consistent.
10. Harji (P.W. 1) has teen examined and cross examined at length. According to him, Shera caught hold of Sanwala deceased and Sona gave fatal blow on the deceased. Thereafter, Shera. the appellant, also gave two lathi blows which fell near the ear of the deceased. This version of Harji is consistent because there is no discrepancy between the statement given by him in the police and trial court so far as involvement and part played by Sona & Shera, the appellants, is concerned. Inspite of prolonged arguments, Shri Mehta could not point out any infirmity in the testimony of Harji (PW 1) so far as the allegations against the appellants are concerned.
11. We have also checked up, whether the medical evidence corroborates the allegations of the prosecution in relation to these two appellants. We find that the injury No. 1 described above, is the injury alleged to have been caused by Sona, the appellant and, the medical evidence corroborates the testimony of Harji (PW 1) in this respect. Similarly injuries No. 16 & 40 are injuries which corroborate the evidence of Harji (PW 1) so far as it relates to the allegations against causing of the two injuries by Shera, the appellant, are concerned. Thus, the medical evidence corroborates the statement of Harji (PW 1).
12. In addition to the above, it was not disputed by the learned Counsel for the appellants that both the appellants, Sona & Shera, gave information on account of which two lathi's were recovered and these lathis have been found having blood stain, which have been found to be of human blood. This is additional corroboration and we are of the opinion that the testimony of Harji corroborated by the medical evidence and recovery of these two lathis provides clinching evidence to give a finding that these two accused persons were responsible and liable for the three injuries described above caused to the deceased.
13. Undoubtedly, the injury caused by Sona is proved to be fatel as per medical evidence and the part played by Shera in catching hold of deceased to facilitate attack on him and then causing two injurses further proves that both, Sona and Shera, the appellants, shared common object and had common intention, to cause there injuries to the deceased.
14. The last submission of Shri Mehta still remains to be considered and relates to what offence these two appellants have committed. According to Section 299, I.P.C. whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. This culpable homicide becomes murder when the death is caused and the act causing death is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability caused death. Exception is provided in Section 300, I.P.C. and culpable homicide is not murder if the offender whilstdeprived of the powers of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
15. In cases of culpable homicide, the case would fall in part II if the act is done with the intention of causing such bodily injury as is likely to cause death, but without any intention to cause death or cause such bodily injury as is likely to cause death.
16. Now analysing the circumstances of the present case, the occurrence took place near the well where the deceased came to take water. Although 42 injuries have been caused on the person of the deceased, since other live accused against whom there were allegations of causing other injuries, have been acquitted, it is not possible to say in what manner and how these 42 injuries were caused to the deceased. All that, he knew is that Sona the appellant gave one lathi blow which fell on the head of the deceased and which caused fracture. Shera, the accused appellant facilitated this attack by catching hold of deceased and then he gave two injuries which are simple in nature.
17. It is true that the deceased died on account of injury No. 1 as per the medical evidence and other injuries also helped in causing death. However, the weapon used is a lathi or a 'Geddi' which is usually kept in hand by the villagers in this part of the country. There is no allegation of the prosecution that Sona, the appellant, repeated attack and the only allegation is that he caused only one injury and then stopped beating. That being so, we are inclined to accept the contention of Shri Mehta that the case would squarely fall within Part II of Section 304, I.P.C. The case of Shera. the appellant, is in no way different. On the contrary, he caused only simple injury and but for the allegation which we have found to be true that he caught hold of the deceased, Sanwala, we would have held him guilty only under Section 323, I.P.C. However, we are of the opinion that both, Sona & Shera, the appellants, had common object and common intention and Shera fully abated the crime of Sona in addition to playing part of causing injury himself also. That being so, we do not want to differentiate between two cases of Sona & Shera and we hold that both, Sona & Shera, the appellants are guilty of offence under Section 304, Part II, I.P.C.
18. Consequently, we set aside the conviction of the appellants, namely Sona s/o Harchand Jat r/o Taratora Village 2/- Shera s/o Anda Jat R/O Taratora Village of Barmer, under Section 302, I.P.C. and sentence passed thereunder. We hold both the appellants guilty of Section 304, Part II, I.P.C. and sentence them to five years' R.I.
19. The result is that these appeals succeed pertially consequently these appeals are partly accepted, as indicated above, The period of sentence undergone is ordered to be adjusted under the rules.