By The Court
1. Both these appeals are directed against the judgment dated Nov. 29, 1973, passed by the Sessions Judge, Bikaner in Sessions case No. 10/1973. In the Sessions case aforesaid five persons viz., Bhaguram, Sitaram, Rughdass Chandaram and Ghasiram were prosecuted on charge Under Sections 302/149 and 147 IPC relating to the murder of one Laduram. The Sessions Judge by his judgment dated 29th November, 1973 acquitted the accused persons of the charge Under Section 302/149 IPC and convicted them for the offences Under Sections 323 and 147 IPC. He sentenced the accused persons to rigorous imprisonment for one year and to pay a fine of Rs. 50/-, in default of payment of fine so further undergo rigorous imprisonment for three months Under Section 323 IPC and to undergo one year's rigorous imprisonment and to pay a fine of Rs. 250/-, and is default of payment of fine to further undergo rigorous imprisonment for three months Under Section 147 IPC. D.B Criminal appeal No. 271/1973 has been filed by the State against the acquittal of the accused persons for the charge Under Section 302/149 IPC and D.B. Criminal appeal No. 205/73 has been tiled by the accused persons against their conviction and sentence for the offence Under Sections 323 and 147 IPC.
2, The case of the prosecution is set out in the report Ex.P.17 lodged by Laduram deceased at Police Station, Nokha, District Bikaner on 13-11-1972 at 1.30 p.m. In the said report Laduram stated that he has a barber shop at Katla Nokha Mandi and that in the morning at 9.00 a.m. when he was going to his shop from his house he saw the wife of Sitaram Harijan throwing refuse in front of the Sofia Primary School, Nokha Mandi. On seeing this Laduram told hex that inspite of being told not to do so on several occasions she had not refrained from throwing the refuse there and he asked the wife of Sitaram to take back the refuse from there and thereupon Sitaram's wife had threatened him that he would be taught a lesson for this. In the report it was further stated that after working at the shop he had gone to have his meal to his house and while returning from his house at about 12.30 p m when he reached the Gandhi Chowk, he saw the accused persons viz , Bhaguram, Sitaram, Chandram and Ghasiram, all were armed with Lathis and they said that they will teach him a lesson for getting the refuse lifted in the morning In the report it was further stated that all the five accused persons came together to attack him and that Ghasiram gave a blow on his back and Chandram gave a blow on the wrist of his left hand also pushed him as a result of which he fell down and thereafter all the five accused persons assaulted him with Lathis. He raised an alaram. On hearing which Bastiram Bishnoi and Shantilal Oswal arrived there and intervened. In the said report it was further stated that all the five accused persons had come with the common intention to assault him with Lathis. On the basis of the said report a case Under Sections 147/323 IPC was registered.
3. The injuries of Laduram were examined by Dr. Motilal Mishra (PW 6) Medical Officer, Primary Health Centre, Nokha on November 13, 1972 at 2. 25 p.m vide injury report Ex. P.4. According to the said injury report Laduram had the following injuries on his person:
(1) Lacerted wound 1 1/2' x 1/2' x 1/6' deep on the simple lower 1/2 of the left forearm laterally
(2) Lonear abrasion 3' x 1/2' on the middle 1/3 of the left forearm lateraly
(3) Heamatoma 2' x 1' on the appear 1/2 of the left forearm laterally
(4) Bluish red line 7' x 1' on lower 1/2' of the left side and back 6' above the alise erest
(5) Two bluish red lines 7' x 1' on the right side of lower scapular region
(6) Bluish red line 6' x 1' on the upper 1/2 of back horizontally
(7) Bluish red line 7' x 1' on the upper 1/2 of the thigh entered anedally.
As injury No. 6 was suspected to be grievous. X-ray examination was advised and the X-ray examination was conducted by Dr. Gopiram Agarwal (PW 7) Radio logist-cum-Lecturer in S.P. Medical College and P.B M. Hospital, Bikaner. The X-ray report Ex.P. 6 indicated a fracture of the lateral and of clavicle and scapula scare. Since the condition of Laduram was not good he was admitted for treatment in the P.B.M. Hospital, Bikaner. While he was an indoor patient at P.B.K. Hospital, Bikaner, an operation was done on November 16, 1972 and during the course of the operation it was found that there was a perforation of small intestine which was closed and further he found that on the spleen there was a tear injury and, therefore, the spleen was removed. After the operation had been performed Laduram expired in the hospital on 15th November, 1972 at 8.05 p.m. The post mortem examination of the dead body of Laduram was conducted by Dr. Dhirender Singh (PW 8) vide post mortem report Ex. P 7. During the course of post mortem examination it was found that there was fracture of 9th, 10th and 11th ribs or left side anteriorly extraverted blood was present in the region of fracture. According to the opinion of the medical officer, the death was on account of sheek and heamorrhage caused by the injuries mentioned in the said report. After the death of Laduram the case was converted from one Under Section 323 IPC to 302 IPC. After completing the investigation, the police filed a charge sheet against the accused persons and the Addl. Munsif Magistrate, Bikaner committed them for trial to the court of Sessions and charges Under Sections 307 140 and 147 IPC were read over to the accused persons who pleaded not guilty and claimed to be tried.
4. The prosecution in support of its case examined 13 witnesses. Bastiram(PW 1) and Shantilal (PW 2) have been examined as the eye witnesses of the occurrence. Malaram (PW 3) has been examined as the witness of the incident which took place in the morning at about 9 a.m. involving the deceased and the wife of Sitaram Harijan in front of the school. Dhanraj (PW 4) is the attesting witness of the seizure memo Ex. P 2 regarding the recovery of the shirt of the deceased, Ganpatram (PW 5) is the attesting witness of the 'Pard Surat Real Haal' Ex. P 1 and the seizure memo Ex. P. 2. Dr. Motilal Mishra is the medical officer, Primary Health Centre, Nokha who has examined the injuries of Laduram and has proved the injury report Ex.P4. Dr. Gopiram Agrawal (PW 7) was the Radiologist-cum-Lecturer in S.P. Medical College and P.B.M. Hospital, Bikaner, who had made the X-ray examination and has proved the X-ray report Ex. P 6 and the X-ray plate Ex.P.6. Dr. Dhirendra Singh (PW 8) was the Medical Jurist at P.B M. Hospital, who had conducted the post mortem examination of the dead body of Ladu Ram and has proved the post mortem report Ex. P 7. Jagmal (PW 9) is the attesting witness of the seizure memos Ex. P 8, P 9, P 10, P 11 and P 12 with regard to the recoveries of Lathis at the instance of the accused persons from their houses. Dr. S. K Jhandi (PW 10) was posted as Reader in Surgery in S.P Medical College, Bikaner who had operated upon Laduram on November 15, 1972. Br. Anoop Bothra (PW 11) was posted as Registrar at P.B. M. Hospital Bikaner and was doctor incharge for the medical treatment of deceased Laduram while he was indoor patient in the said hospital, Bhagwan Singh (PW 13) was posted as S.H O. Police Station Nokaa nn November 13, 1972 and recorded the report Ex. P 17 lodged by Laduram in the police station and conducted the investigation in the case. Remdayal (PW 13) took over as S.H O. Police Station Nokha on 16-11-1972 and he conducted the rest of the investigation in the case.
5. Accused person in their statements recorded under Section 342 Cr. PC denied the prosecution case and pleaded that they have been falsely implicated on account of party faction. Accused Gangaram further pleadedalibi and stated that on 12th he had gone to Lalgarh in the morning at about 10-11 a.m. by bus to bring the wife of his son and stayed there at the house of Hardaram Harijan and he returned in Nokha Mandi in the evening of 14th November, 1972.
6. The Sessions Judge after placing reliance on the report Ex.P 7 lodged by Laduram which was treated as the dying declaration and the evidence of the two eye witnesses Bastiram (PW 1) and Shantilal (PW 2) as well as the evidence of Malaram (PW 3) held that the prosecution had proved beyond reasonable doubt that all the five accused persons had inflicted Lathi blows on Laduram on 13-11-1972 with the common object of inflicting injuries to him and that they were members of an unlawful assembly. The Sessions Judge was, however, of the view that the prosecution had failed to prove that the accused persons had inflicted Lathi blows on Laduram with the intention of committing murder. The Sessions Judge further held that on the basis of the evidence adduced by the prosecution it could not be said that Laduram died because of the injuries which he had received at the hands of the accused persons. The Sessions Judge also held that the prosecution also failed to prove as to which of the accused persons had caused the fracture of the ribs of Laduram or caused injury No. 5. The Sessions Judge, therefore, held that the accused could not be held guilty for the offences punishable under Sections 302, 304 or 345 IPC but the prosecution has proved beyond reasonable doubt that the accused persons were the members of an unlawful assembly and that they had inflicted Lathi blows on Laduram, hence they are guilty for the offence under Sections 147 and 323 IPC. Being dissatisfied with the aforesaid judgment of the Sessions Judge the State as well as the accused persons have filed these appeals.
7. We have heard Shri Niyajuddin Khan, learned Public Prosecutor for the State and Shri M.M. Singhvi learned counsel for the accused persons,
8. As regards the incident of assault on deceased Laduram on 13-11-1922 by the accused persons with Lathis there is the evidence of the report Ex.P 17 lodged by the deceased himself at police station Nokha at 1.30 p.m., i.e. within one hour of the incident. The said report narrated in detail the entire incident and specifically mentioned the name of the accused persons as well as their weapons and manner in which the assault took place. In the said report the names of Bastiram Bishnoi and Shantilal Oswal have been mentioned as the persons who had arrived at the scene of the incident when Laduram raised an alarm and had intervened. Bastiram and Shantilal have been examined as PW 1 and PW 2 and both of them have given the same version as that given by Ladurarh in the report Ex P. 17 lodged by him. In addition there is the evidence of Malaram (PW 2) who has deposed with regard to the incident which took place in the morning at about 9 a.m. involving the deceased Laduram and the wife of Sitaram Harijan regarding throwing of refuse infront of the School and his testimony lends corroboration to the dying declaration Ex.P. 17 in which reference has been made to this incident. Malaram has stated that Laduram had reprimanded the wife of Sitaram Harijan for throwing the refuse in front of the school and had asked her to remove the refuse and that after removing the refuse she had extended a threat to Laduram that he would be taught a lesson. The evidence of Malaram thus fully supports the version given by Laduram in the report Ex.P. 17 with regard to the incident which took place in the morning involving himself and the wife of Sitaram Harijan and the threat which was extended to him by the wife of Sitaram Harijan. The Sessions Judge has carefully considered the evidence of Bastiram (PW 1), Shantilal (PW 2) and Malaram (PW 3) and has held that reliance could be placed on their testimony. Shri H.M. Singhvi, the learned counsel for the accused persons, has not been able to show any infirmity in the statements of these witnesses which may throw doubt on their testimony. We have also considered the testimony of these witnesses and we are of the view that reliance can be placed on their testimony. In view of the testimony of Malaram (PW 3) read with the report Ex P. 17 lodged by Laduram it must be held that on the morning at about 9 a.m. an incident took place infront of the Sofia Primary School, Nohka mandi involving deceased Laduram and the wife of Sitaram Harijan and that Laduram objected to throwing of refuse in fornt of the School by the Wife of Sitaram Harijan and forced her to lift the said refuse and thereupon the wife of Sitaram had extended a threat to Laduram that he would be taught a lesson. From the evidence of Bastiram (PW 1), Shahtilal (PW 2) and the report Ex.P. 17 lodged by Laduram it is further estanlished that at about 12.30 p.m. when Laduram was coming to the shop from his house he was assaulted by the accused persons who were armed with Lathis. Thus it must be held that the prosecution has established beyond reasonable doubt that on 13-11-1972 at about 12.30 p.m. deceased Laduram was assaulted with Lathis and as a result of the aforesaid assault Laduram sustained numerous injuries on his person as mentioned in the injury report Ex P. 4, and while inflicting the injuries on the person of deceased Laduram the accused persons constituted an unlawful assembly. The accused persons have, therefore, been rightly held guilty of the offence punishable Under Section 147 IPC,
9. The next question which arises for consideration is as to what was the common object of the members of the unlawful assembly when they assaulted Laduram. The submission of the learned Public Prosecutor is that taking into consideration the nature of the injuries found on the person of deceased Laduram which resulted in the fracture of the ribs and perforation of the small intestine as well as tear in the spleen it must be held that the common object of the members of the unlawful assembly in assaulting Lade Ham with Lathis was to cause his death and, therefore, the accused persons are guilty of the offence a punishable under Section 302/149 IPC. Shri M.M. Singhvi on the other hand, has submitted that on the basis of the medical evidence adduced by the prosecution it has not been established that the injuries which were found on the person of deceased Laduram were sufficient in the ordinary course of nature to cause death or that the death of the deceased was caused as a result of the said injuries. According to Shri Singhvi the death of the deceased was due to peripheral circulatory failure due to low blood volume as deposed by Dr. Anoop Bothra (PW11) and the said peripheral circulatory failure might have also been caused by the operation which was performed on Laduram on 15th November, 1972, and, therefore, it cannot be said that Laduram had died due to the injuries that were inflicted on his person by the accused persons. In the circumstances, the submission of Shri Singhvi was that it cannot be held that the accused persons had the common object of causing the death of Laduram when they assaulted him. The submission of Shri Singhvi was further that the intention of the accused persons could only be to chastise deceased Laduram in view of the incident which took place in the morning involving the deceased and the wife of Sita Ram Harijan.
10. From the medical evidence, viz., the testimony of Dr. R.R. Jhanji (PW 10), it appears that there was a perforation in the small intestine and this perforation was due to injury to the abdomen. Dr. Jhanji also made a note Ex.P. 16 after the operation wherein he recorded that there was a tear in the spleen and, therefore, an exploratory operation was performed and the spleen was removed. According to Dr. Jhanji the death was caused by the injuries to spleen and intestine. Although the injury report Ex.P. 4 does not show any external injury on the front side of the abdomen of the deceased, but Dr. Motilal Misra (PW 6) has deposed that there were injuries No. 4 and 6 on both the lateral side of the abdominal region. Injury No 4 was a bruise on the lower half of the left side of back 6' above the iliac crest and injury No. 6 was a bruise on the upper half of the back horizontally. The post mortem report Ex.P. 7 shows fracture of 9th, 10th and 11th ribs on the left side anteriorly. The said fracture of the 9th, 10th and 11th ribs appears to have been caused by injuries No. 4 and 6 and the aforesaid fracture of the ribs could have caused the perforation of the small intestine. So also it can be said that the injury on the spleen was the result of external injuries Nos. 4 and 6 on the lateral side of the abdominal region. In our opinion it must be held that the perforation of the small intestine and the injury on the spleen which resulted in the death of Laduram was the result of the injuries that were inflicted on his person. But taking into consideration the back-ground in which the incident took place the weapons used in the assault and the fact that most of the injuries that were inflicted on the person of deceased Ladu Ram were on non-vital parts and no injury was inflicted on vital part like the head it cannot be said that in assaulting deceased Laduram accused person had shared the common object of causing his death or to cause such injuries which were sufficient in the ordinary course of nature to cause his death or were likely to cause his death. Nor can the knowledge be attributed to the caused persons that the injuries that were being inflicted by them were such as were likely to cause his death. But in view of the fact that the accused persons had assaulted the deceased with Lathis and that grievous injuries, involving fractures of the 9th, 10th and 11th ribs as well as fractures of the right clavicle lateral 1/3rd, right scapula and left ulna in the middle 1/3rd were found on the person of the deceased it can be reasonably be inferred that the accused persons while assaulting the deceased with Lathis had the common object of causing grievous hurt on the person of the deceased or at any rate they must have known that by inflicting the said injuries with Lathis on the person of the deceased grievous hurt was likely to be caused. In the circumstances although the accused persons cannot be held guilty of the offence Under Section 302 or the offence Under Section 304 read with Section 149 IPC they must be held guilty of the offence punishable under Section 325/149 IPC. In our opinion the Session's Judge has committed a manifest error in holding that the accused persons could not be held guilty for the offence punishable Under Section 325 IPC and that they could only be held guilty of the offence punishable Under Section 323 IPC. The only reason that has been given by the Sessions Judge for taking this view is that the prosecution has failed to prove as to which of the accused caused the fracture of the ribs of Laduram or caused injury No.5 of Ex.P. 4. In taking the aforesaid view the Sessions Judge failed to note that the accused persons were facing a charge Under Section 140 IPC and that it was not necessary for the prosecution to establish the identify of the accused person or persons who had caused the injury resulting in fracture of the ribs or injury No. 5 of Ex. P. 4.A11 that the prosecution was required to establish was that the accused persons constituted an unlawful assembly and that the injuries that were inflicted on the person of the deceased were caused in prosecution of the common object of the unlawful assembly. We have found that in the present case the accused persons constituted an unlawful assembly, the common object of which was to cause grievous hurt and the injuries found on the person of the deceased were caused in prosecution of the said common object of the unlawful assembly. In the circumstances each of the accused persons is guilty of the offence punishable Under Section 325/149 IPC and the conviction of the accused persons must be altered from Section 323 IPC one under Section 325/149 IPC.
11. In the matter of sentence it has been pointed out to us that accused Chandaram and Ghasiram had remained in custody during the course of investigation, enquiry and trial and have undergone imprisonment for a period of nearly one year and that the other accused persons Bhaguram, Sitaram and Rughdass have remained in custody for a period of nearly three months. The incident took place on 13.11.1972, i.e. nearly eleven years back the judgment of Sessions Judge was pronounced on 29.11.1973, nearly ten years back Taking into consideration the circumstances of the case we are of the opinion that the ends of justice would be served if, in respect of the offence Under Section 325/149 IPC, the accused persons are sentenced to the period of imprisonment already undergone by each of them and a fine of Rs. 1,000/-each and in respect of the offence Under Section 147 IPC the accused persons are sentenced to the period on imprisonment already undergone by each of them. Out of the fine recovered, a sum of Rs. 4000/ be paid as compensation to the heirs of the deceased.
12. In the result D.B Criminal appeal No. 271 of 1974 filed by the State is Partly allowed. The conviction of the accused respondents for the offence Under Section 47 IPC is maintained and each of them is sentenced to the period of imprisonment already undergone by him. The conviction of the respondent for the offence Under Section 323 IPC is altered and they are convicted to the offence under Section 325/149 IPC and they are sentenced to the period of imprisonment already undergone by each of them. Each of the respondents is further sentenced to pay a fine of Rs. 1000/- for the offence Under Section 325/149 IPC and in default of payment of fine the accused committing the default will undergo rigorous imprisonment for a period of one year. Out of the fine recovered from the respondents, a sum of Rs. 4000/- may be paid as compensation to the heirs of the deceased Laduram. The accused persons are given one month's time to pay the fine. In case the fine is not deposited within one month, the accused persons shall surrender to undergo the imprisonment awarded to them. S.B.Criminal appeal No. 705/73 is dismissed.