M.C. Jain, J.
1. The above two appeals arise out of the judgment of the learned Sessions Judge, Udaipur, dated April 18, 1974, whereby the appellants, namely, Jama and Nathu, in both the appeals, were convicted of the offence Under Section 302, IPC, and each one of them was sentenced to imprisonment for life and to pay a fine of Rs. 200/-, in default of payment of fine each of them shall further undergo three months rigorous imprisonment. The other co-accused Harka and Roopali, their father and mother, were acquitted of the charge Under Section 302/109, IPC.
2. The prosecution case, in brief, is that in village Thobawara there is a well Kakawara. The deceased Mangla along with Savji (PW 2). Harka, father of the appellants, and one Kala were the co-owners. The deceased Mangla used to irrigate his field from the said well. The deceased Mangla had cultivated his field before his death, but he was not allowed to irrigate his field from the water of the said well and he took water from the well of Kamalji. On account of that, the relations between the deceased and Harka were strained. On 2-5-1973 in connection with the marriage of Kishan Lal son of Ratanlal Kalal some villagers had assembled at the house of Ratanlal Kalal for dancing. The deceased Mangla had also visited the house of Ratan Lai Kalal is that connection. The appellant Jama had also visited the house, but after some time he returned back. At about 10-11.00 p.m. in the night, the deceased Mangla was returning to his house. When he reached near the house of Hakra, Hakra and his wife Roopli asked as to who is passing. Thereupon, the deceased replied that he is Mangla. Then it is said that they asked as to how he is passing from their way. Thereupon, he replied that it is a public thoroughfare. It is alleged that both of them then stated that the enemy is going and they called their sons. Thereupon their sons armed with Lathis appeared in the way and inflicted injuries on the bead of Mangla. The deceased Mangla was followed by Savji (PW 2) and Kalia(PW 1) Savji immediately came near the place of assault and caught hold of the Lathi from the hands of the appellant Nathu and thereafter Savji went to the village and called the villagers. Kalia remained with the injured Mangla. Savji returned to the scence of occurrence along with Kamaiji (PW 3) Dhula (PW 4) and some villagers. On being asked by Kamaiji and Dhula and others, the injur d Mangla told them that he had been assaulted by Jama and Nathu, the appellants. The injured thereafter was removed to Kherwara Dispensary in the morning, where his injuries were examined by Dr. S.K. Mathur (PW 12) at 7.30 a m. As the injured had head injured and he was in a semi conscious state, the Doctor advised to carry him to Udaipur Hospital. Savji (PW 2) then first proceeded to police Station, Kherwara, and lodged the report Ex P1 at 9.00 a.m. on 3-5-1973. On his report, case Under Section 307, IPC was registered by the SHO, Shri Sharif Mohd. (PW 11). The injured was shifted to the Udaipur Hospital. He ultimately succumbed to his injuries on 4-5-1973 at 11.30, a.m. Dr. Mathur found the following three injuries on the person of Mangla:
(1) Lacerated wound 4-1/2 cm. x 1/2 cm. x 3/4 cm. on right parietal region of scalp
(2) Lacerated wound 4-1/2 cm. x 1/2 cm x 1/2 cm. in the middle at parietal region of scalp
(3) Lacerated wound 2 cm. x 1/3 cm x 1/3 cm. on the left side of occipital region of scalp
He reserved his opinion in respect of injuries No. 1 and 2 and advised X-Ray examination. As regards injury No. 3 he opined that it is simple. Dr. Mangi Lal (PW 8) conducted the autopsy on the dead body of the deceased Mangla and found as under:
(1) Lacerted stitched wound on the right parietal region 2-1/2' long
(2) Linear 3' lacreated wound in the centre of parietal region of scalp wound stitched.
(3) Stitched lacerated wound on the left side extending from parietal to occipital region,
CRANIUM AND SPINAL CORD
(1) Scalp, skull and vertebrae:
Scalp wound already described. Extensive haemorrhage and blood clots present on the removal of the scalp. There is a depressed fracture on the middle of parietal bone in centre at the junction with frontal bone Linear fracture of right parietal bone about 1-1/2 long oblique fracture of left parietal bone about 4' long extending to occipital bone. Depressed fracture of right frontal bone 2 1/2' away from right ear. Fracture of left frontal bone extending to base of skull involving a part of sphenoid bone(2) Membrances:
Extensive haemorrhage with blood clots of tearing of membranes underneath the fractured sites(3) Brain and Spinal Cord:
Extensive collection if blood over the brain in its central part. There are lacerations of both parietal lobes in centre and in its left lateral aspect.
According to him the cause of death was extensive fractures of bones, coma and death. After the post mortem examination, offence under Section 302, IPC, was added. The SHO Sharif Mohd. (PW 11), after registration of the case, sealed the blood stained Lathi (Ex.2) produced by Savji (PW2) vide seizure memo Ex. P/2. Thereafter he proceeded to the spot and prepared site plan with description (Ex. P/4) and inspection notes (Ex.P/3), Panchama Lash (Ex.P/7). He conduced other spot investigation. The accused persons, other than Roopli, were arrested on 4-5-1973 and the accused Roopli was arrested on 7-5-1973. On 5-5-1973 the appellant Jama gave information in respect of Lathi (Ex.P/11) and got the same recovered vide memo Ex.P/9, but no blood stain was found on it. Investigation was conducted from the witnesses. After completion of investigation, charge sheet was presented against all the four accused person and they were ultimately tried by, the Sessions Judge, Udaipur. The appellants Jama and Nathu were charged with the offence under Section 302, IPC Both the appellants pleaded not-guilty to the charges and claimed to be tried. The Prosecution examined in all 12 witnesses. Kalia (PW1) and Savji (PW2) were examined as the eye witnessess of the occurrence. Kamalji (PW3) and Daula (PW4) were examined as witnesses relating to the alleged dying declaration. Kishanlal (PW5) is a withness, who was to be married and connection of whose marriage, the villagers assembled at his house in the night of the occurrence. PW6 Beda is a motbir of recovery of Lathi of the accused Jama (Ex.1). The recovery memo where of is Ex.P/9 P W7 Khumanlal and PW10 Bhawani Singh are the Head constables, who had dealt with the sealed packets. Khumanlal carried the sealed packets from Kotwali, Udaipur, to the Chemical Examiner, Jaipur and Bhawarli Singh carried the sealed packets from Police Station, Kherwara, to the Superintendent of Police Office, Udaipur. PW8 is Dr. Mangilal, who conducted the post mortem examination, PW9 Tej Singh is the Head Constable, Police Out Post, Hathi pol, who prepared the Panchnama Ex P/7. PW 11 Sharif Mohd. is the Investigating Officer and PW 12 is Dr. S.K. Mathur, who had examined the injuries of the deceased Mangla. After recording the statements of the prosecution witnesses, the statements of the accused persons were recorded, in which they denied the prosecution case. The accused Nathu stated that the Lathi Ex. 2 does not belong to him He stated that the witnesses have deposed against him, as they want to take their land. One witness Dharma was examined in defence as DW 1. The learned Sessions Judge found both the appellants guilty of the offence Under Section 302 IPC, relying on the evidence of the two eye witnesses and the evidence of two other witnesses relating to dying declaration and he also relied on the 'circumstantial evidence of the recovery of Lathi, which has been found to be stained with human blood, which was snatched by Savji from the hands of Nathu and was produced by him to the police at the time of the lodging of the report. The learned Sessions Judge, however, did not believe the story of exhortation on the part of Hakra and Roopli and so he acquitted both of them. Dissatisfied with their convictions and sentence two separate appeals have been filed through jail.
3. We have heard Shri N.N. Mathur, learned counsel for the appellants, and Shri R.C. Maheshwari, learned Public Prosecutor, for the State, and have perused the record of the case carefully.
4. In order to connect the appellants with the commission of the defence, the prosecution has relied on the evidence of PW 1 Kalia and PW 2 Savji as eye witnesses of the occurrence and PW 3 Kamalji and PW 4 Dhula as witnesses to whom the deceased made statement to the effect that both the appellants had inflicted Lathi blows on him. From the injury report (Ex. P/5) as1 well as from the post mortem report Ex. P/6 which have been proved by Dr. S.K. Mathur and Dr. Mangilal, it would appear that the deceased had three injuries on his head. There is a controversy with regard to injury No. 3. Dr. S.K. Mathur has described this injury as a simple injury, but Dr. Mangilal, who had an opportunity to observe the internal effect to injury No. 3, has stated that injury No. 3 has also resulted into fracture. Though he has not so clearly stated, but he has deposed that each of the external injury with its internal effects individually and all the three external injuries with the internal effects collectively, were sufficient in the ordinary course of nature to cause death. Thus, it would appear that all the three injuries on the head of the deceased were grievous injuries and the opinion of Dr. S.K. Mathur, can-not be taken to be correct in view of the fact that he had no opprtunity to conduct any post mortem examination. The learned Sessions Judge has considered this question and in our opinion, has rightly found that looking to the internal effect of injury No. 3, the injury No. 3 was also grievous. A question arises to who were the authors of the injuries on the head of the deceased, for that, on record, there are the statements of Kalia (PW 1) and Savji (PW 2), who had witnessed the occurrence. Both of them have stated that the appellants Jama and Nathu inflicted Lathi blows on the head of Mangla. It is true that it was a dark night, but still both these witnesses were quite near to the victim and could have observed the appellants. House of Savji (PW 2) is only at a distance of 25 Ft. from the place of the occurrence. Both these witnesses were returning after attending the function and celebration of dancing at the house of Ratanlal Kalal, which was held in connection with the marriage of Kishanlal. Kishanlal himself has appeared in the witness box as PW 5 and has stated that Savji, Kala, Mangla had come to his house for dancing. The accused Jama had also come, but he had left his house earlier after dancing for about 10-15 minutes. Their testimony, in our opinion, has been rightly believed by the learned Sessions Judge. Nothing has come out in the cross examination of these witnesses, on the basis of which their testimony in any way may be rendered doubtful. It is pertinent to note that Savji actually intervened in the occurrence and snatched the Lathi from the hands of the accused Nathu and produced that Lathi at the time of lodging of the report. Apart from the evidence of two eye witnesses, there are further statements of Kamalji (PW 3) and Dhula (PW 4). They were brought by Savji, on being informed by him and they appeared at the scene of occurrence soon after the occurrence and it is to them that the deceased disclosed as to who beat him. He stated to these witnesses and some others, who had also assembled, that the accused Jama and Nathu inflicted Lathi blows on him. After making this statement to these witnesses, the injured became unconscious. Even at the time of examination by Dr. S.K. Mathur, the injured was in a semi conscious state, so it can be that at the time of making of dying declaration, the injured was in such a state that it was possible for him to have made that statement to the witnesses. We may also mention that PW 1 Kalia and PW 2 Savji are equally related to the victim as well as to the assailants. They are near relations of both the parties. Similarly, there does not appear to be any reason to disbelieve the testimony of Kalia and Dhula and in their cross-examination nothing has come out, so as to effect their testimony. Besides that, there is a corroborative piece of evidence, available against accused-appellant Nathu. It was his Lathi (Ex. 2), which was snatched by Savji and which was produced by him to the police. That Lathi was packed and sealed and was sent for chemical and serological examination and on examination it was found to be stained with human blood. Thus, on the basis of the above evidence, it can be concluded that the authors of the injuries on the person of the deceased were the appellants.
5. Having found that the appellants inflicted Lathi blows on the head of the decased, it is to be seen as to what offence is made out against each of the appellants. Both the appellants are real brothers. The appellant Nathu is elder to Jama. The learned trial judge at the time of their statements, has recorded the estimated ages of Nathu as 20 years, and of Jama as 16 years, although both of them have stated that their ages are of 14 years. As regards the appellant Jama, there is further material on record with regard to his age. At the time of consideration of his bail application by the learned Sessions Judge, Medical opinion was sent for in respect of his age. The Doctor has given a certificate to the effect that the age of Jama is between 12 to 14 years. To us, it appears that at the time of occurrence, the age of Jama might be nearabout 13 years. His statement was recorded after about a year, so at the time of occurrence, he may be about 13 years of age. In all three injuries were found on the head of the deceased. Out of two accused persons, any one of them is the author of two injuries, but there is one important and significant factor against the accused Nathu and that factor is that his Lathi was found stained with human blood. So it appears that he wielded the Lathi with greater force and the blow or blows, which he has inflicted, had definitely resulted into the death of the deceased. The same may be true with regard to the appellant Jama, but the Lathi recoverd on his information and at his instance, has not been found stained with blood. He is only a lad of 13 years and it appears that on somebody's call he joined his brother in the assault of the deceased, unmindful of the consequence of it. It cannot also be lost sight of that some wordy exchange must have culminated in the present occurrence. Although the relations between Hakra and the deceased, were strained, but the occurrence took place in the night in the lane, when Mangla was passing. The assault was opened by the appellants in all probability in the context of some hot exchange of words. Considering the background, in which the occurrence took place and the age of the appellant Jama and the circumstances that his Lathi was not found stained with blood in all probability, in our opinion, it cannot be said that the appellant Jama acted in order to achieve any intended consequence of death. What can be said in respect of him, is that atleast he knew that death is the likely result of his act, that is, knowledge regarding the consequence of his act, can be attributed and not the intention. It cannot be said that he acted with any murderous intent or design. In our opinion, he can only be held guilty of the offence under Section 304, Part II, IPC. But the same is not true in respect of the appellant Nathu. It appears that he intended to inflict the injury on the head and caused a very severe blow on the head of the deceased. As already stated, the Lathi snatched from bis hands, was found stained with human blood, so, in our opinion, his case is covered under clause thirdly of Section 300, IPC. Whatever injury or injuries, he had inflicted, that or they were sufficient in the ordinary course of nature to cause death and, as such, he had been rightly found to be guilty of the offence under Section 302, IPC, by the learned Sessions Judge.
6. As a result of the above discussion, in our opinion, the appellant lama's appeal deserves to be partly allowed.
7. Accordingly, the appeal of the appellant Jama is partly allowed. His conviction and sentence for the offence under Section 302, IPC, are set aside, He is, however, convicted for the offence under Section 304, Part II, IPC he has remained in custody for more than five years. In the circumstances of the case he is sentenced to the period of his custody. He is already on bail, so need not surrender to his bail bonds. His bail bonds are discharged.
8. The appeal of the appellant Nathu is, however, dismissed. He is also on bail. He shall immediately surrender to his bail bonds. The Sessions Judge, Udaipur is further directed to effect his arrest to serve out his remaining sentence awarded to him by the learned Sessions Judge.