1. In the Harijan Mohalla of Pipar City, Kana Ram was beaten to death and Shri Kishan was seriously injured on 16th March, 1978 in the evening at about 8 p.m. Sohanlal s/o Shankerlal lodged a report in the police station, Pipar City at 9.30 p.m. of the same day alleging that Hari Bhajan, Sadulram and Amarchand attacked Kanaram with weapons and Hari Bhajan gave axe blow to Kanaram, Amarchand gave dharia blow to Kanaram and Sadulram gave lathi blow to Kanaram. When Shri Kishan tried to rescue, Hari Bhajan gave an axe blow in the head of Shri Kishan.
2. The police registered a case under Section 307 IPC and later on after the death of Kanaram, the same was converted into 302 IPC against all the three accused. After investigation, they were challenged and after commitment, they faced trial.
3. During trial, the prosecution examined P.W. 1 Ilahi Bux, P.W. 2 Sugna Ram, P.W. 3 Dr. N.R. Bhandari, P.W. 4, Dr. K.N. Mathur, P.W. 5 Babu lal, PW 6 Sohanlal, PW 7 Gulab, PW 8 Shri Kishan, PW 9 Kaluram and PW 10 Umed Singh. The accused denied the allegations. They also examined the defence evidence DW 1 Ahmed, DW 2 Ranglal and DW 3 Nathuram.
4. The prosecution also produced the weapons of offence, which were recovered at the instance of the accused.
5. The trial court has convicted all the three accused for the offence under Section 302 read with 34 I.P.C. for causing the death of Kanaram and also convicted all the three accused under Section 323 read with 34 I.P.C. for causing injury to Shri Kishan. All the three accused Had Bhajan, Amarchand and Sadulram have preferred this appeal under Section 374(2) Cr. P.C. against the judgment of the Sessions Judge, Jodhpur.
6. Mr. Dave, learned Counsel for the appellants submitted that the conviction is based on the sole testimony of PW 8 Shri Kishan and according to the statements of PW 6 Babulal, PW 7 Gulab PW 6 Sohanlal; Shri Kishan reached the spot after the beating to Kanaram was complete. It was argued that PW 6 Sohanlal is the real brother of Kanaram and the other witnesses are near relatives and, therefore, even though they have been declared hostile, their testimony should be believed so far as it helps the accused. Mr. Dave has pointed out that the witness PW 8 Shri Kishan cannot be said to be either wholly reliable witness or a witness of sterling worth as his statement is full of self-contradictions and is against medical evidence. No injury has been received by the deceased Kanaram by any sharp edged weapon and, therefore, the use of axe and dharia is ruled out. It was also argued that two of the accused have also received injuries and a complaint was lodged by them and that being so, the prosecution was under legal duty to explain the injuries to the accused. No explanation has been given whatsoever by the prosecution and on that count also, the prosecution has failed to Drove the case. So far as the recovery is concerned, it was pointed out that it has not been found that there was any human blood on the weapons, which were recovered and that being so, they cannot connect the accused with the crime.
7. Confronted with the above, Mr. Purohit learned Public Prosecutor submitted that the trial court has rightly believed the sole testimony of PW 8 Shri Kishan, which is corroborated by the medical evidence. According to Mr. Purohit, there is no doubt about the presence of Sadulram and Amarchand accused who have themselves alleged that they received injuries at the hands of the deceased. Similarly, there is no doubt about the presence of PW 8 Shri Kishan because he also received number of injuries. That being so, Mr. Purohit argued that there is inherent truth and credibility of the presence of the accused Sadul Ram and Amarchand and prosecution witness Shri Kishan at the time Kanaram was beaten by the accused party during which incident, Shri Kishan also received injuries from the accused party. Regarding the medical evidence and the important features of the case pointed out by Mr. Dave that no incised wound has been caused and, therefore, sharp edged weapon was not used. Mr. Purohit pointed out that the accused used the dharia and axe from the blunt side and, therefore, only lacerated wounds could be produced. Mr. Purohit submitted that PW 5 Babulal, PW 6 Sohanlal, P(sic)W 1 Gulab were not eye witnesses as held by the trial court, and, therefore, merely because they have stated that Shri Kishan came later on, no benefit can be given to the accused, more so because these witnesses have resiled from their police statements and exhibited hostility towards prosecution on account of which, they were declared hostile. Mr. Purohit pointed out that the testimony of PW 8 Shri Kishan is further corroborated by PW 9 Kaluram who saw the accused immediately after the occurrence with weapons of offence in their hands.
8. It is true that injuries were caused to two of the accused persons also but as per submission of Dr. Bhandari the injuries caused to Sadul Ram and Amarchand were superficial in nature and could have been caused even by a fall. In view of this and also in view of the fact that PW 8 Shri Kishan who received a head injury fell down on the spot and became unconscious and, therefore, he could not witness what transpired after it we are of the opinion that the absence of any explanation by him to explain the injury of the two accused, cannot be fatal to the prosecution case. It is true that the prosecution is required to explain injury but what is the effect of non-explanation is to be examined in the facts and circumstances of each case. There cannot be any cut and dry formula that the moment prosecution fails to explain the injury of the accused, the accused must be acquitted irrespective and without examining and considering the peculiar facts and circumstances of each case. We have, therefore no hesitation in rejecting the submission of Mr. Dave on this score.
9. We have carefully considered the respective submissions of the learned Counsel for the parties and also gone through the record. In fact, statements of all important witnesses were read before us.
10. To start with, it would be useful to point out that according to the medical evidence consisting of Dr. N R. Bhandari, the deceased Kanaram received five injuries but the post-mortem conducted by another Dr. Mathur revealed that in fact there were six injuries on that person of the deceased Kanaram. P.W. 4 Dr. K.N. Mathur in this respect has narrated in his statement that the following injuries were found on the person of Kanaram:
(1) A lacerated wound 2' x 1 1/2' on left side of the fore-head.
(2) Lacerated wound 2' x 1/3' vertical on left side of the occipital region.
(3) Lacerated wound 1.5' x 1/4' x 1/4' anterior-posterior on middle of the occipital region.
(4) Lacerated wound of 2' x 1/4'x 1/4' anterior-Posterior on middle of the lateral-parietal region.
(5) Abrasion 2' x 1 1/2' on posterio-medical aspect of lower 1/3rd of the left fore-arm.
(6) Abrasion 1.5' x 1' on anterior-medial aspect of left side of knee.
The above would show that he received four injuries on the head, which were on the forehead and occipital region and parietal region. There was compound fracture of left parietal bone and the fracture extended to occipital region. The cause of death was brain injury and haemorrage. The fracture of the occipital bone of Kanaram was sufficient to cause his death in the ordinary course of nature.
11. Dr. Bhandari has stated that P.W. 8 Shri Kishan received the following injuries.
(1) Laceration 2' x 1/2 x 1/3' on just left side of fore-head.
(2) Bruise 1 1/2' x 1' on dorsum of 2nd meta-carpal region of right hand.
(3) Abrasion 1' x 1/2' on front of middle of left fore-arm.
(4) Bruise 2' x 1' transverse on anterio-lateral aspect of middle of left arm.
(5) Bruise 2 1/2' x 1' transverse on right upper scapular region.
(6) Abrasion 3' x 1/2' on medial side of left scapula.
(7) Bruise 2' x 1' transverse on front of lower 1/3rd of right leg.
(8) Abrasion 4' x 2' on lateral aspect of lower left leg extending to foot.
(9) Bruise 2' x 1' on left supra-patteller region.
In his cross-examination, Dr. Bhandari has stated that Sadulram and Amarchand accused were also examined in same night and following injuries were noticed on their person:
(1) Laceration 1' x 1/3' on middle of scalp.
(2) Bruise 1' x 3/4' on fore-head just above right eye brow.
(3) Abrasion 1/4' x 1/4' on dorsum of inter-phalangeal joint of left thumb.
(1) Laceration 2' x 1/2' on anterior scalp just on left side.
(2) Bruise 1/2' x 1/2' on dorsum of left matacarpo phalangeal joint of left index finder.
The Investigating Officer in his statement admitted that for this very occurrence, a complaint was filed by the accused-party and, he saw injuries on the person of Sadulram and Amarchand.
12. Dr. Bhandari stated that injuries on the person of Sadulram were superficial in nature and could have been caused by a fall.
13. The above medical evidence would show that the submission of Mr. Purohit is correct that there is no doubt above the presence of the accused Sadulram and Amarchand and prosecution witness Shri Kishan on the spot and all of them received injuries at that very time and was examined in the night of 16th March, 1978 by the same doctor Bhandari. This leads assurance to the fact that P.W. 8 Shri Kishan was a natural witness of the occurrence and merely because the hostile witnesses have tried to help the accused stating that he came afterwards, his presence on the spot cannot be doubted. We are, therefore, in agreement with the trial court that P.W. 8 Shri Kishan was present on the spot and he was himself severally beaten by the accused party.
14. The only important question is whether the present story as narrated by P W. 8 Shri Kishan stands proved inspite of the various infirmities pointed out by Mr. Dave. There is no doubt that according to this witness, Hari Bhajan gave axe blow to Kanaram and Sadulram gave lathi blow and Amarchand gave dharia blow. According to this witness, Hari Bhajan gave axe blow to him on his head when he tried to catch Amarchand accused. In his cross-examination, this witness has given satisfactory answers. The first contradiction in his police statement and the statement given in the court relates to the injury caused to Kanaram by Amarchand with dharia whether it was before Kanaram fell down or earlier to it. However, the witness explained that he told the police that Amarchand gave blow by dharia after Kanaram fell down but the police has only mentioned that a blow was given without mentioning at what point of time, the same was given. In our opinion, it is not a material contradiction so as to shake the testimony of Shri Kishan.
15. Another contradiction pointed out was that he has not stated in the police that Amaria gave dharia blow on account of which, Kenaram fell down. In fact, the witness asserted that Amarchand gave a blow after Kanaram fell clown. Again the sequence, in which Sadulram gave lathi blow as mentioned in the police statement and the court statement, was different. The witness stated that what has been stated before the police was correct sequence.
16. We are of the opinion that in none of the above contradictions, there is any basic change in the version. The only difference is sequence of the events and whether injury was caused after the deceased fell down or before he fell down and by which of the accused. In the very, nature of such an incident, where the accused party of three were beating deceased Kanaram, and Shri Kishan was himself under the threat of beating as in fact, lie was beaten slightly little later, it is too much to expect that he would be able to give a graphic description of sequence of event. We are convinced that the version of this witness so far as involvement of the three accused, and the injury caused on the person of the deceased is concerned, is correct. We are further convinced that he him-self received injuries from the accused party.
17. Further it is also correct that the medical evidence fails to corroborate his testimony in as much as there is no corrobaration of the injuries caused by sharp edged dharia and axe. There is no incised wound on the person of Kanaram.
18. Mr. Purohit has submitted that the accused might have used dharia and axe from the wrong side, could have been believed if P.W. 8 Shri Kishan would have stated so but on a careful examination of his testimony, we find that he has not stated so. In this respect, the Hon'ble Supreme Court has observed in Hallu v. State of Madhya Pradesh (1974) 4 S.C.C., 300 as under:
When the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon.
19. Admittedly, the medical evidence in the form of the post-mortem report and the injury report was available to the prosecution when prosecution witnesses were under examination. As to why the prosecution did not ask P.W. 8 Shri Kishan to explain whether dharia and axe were used from the blunt side is a question to which Mr. Purohit could not give any answer. In view of the above observation and the decision of the Supreme Court, we have got no option but to hold that since there is no incised wound on the person of Kanaram deceased and because no attempt was made by the prosecution to get an explanation in this respect from the prosecution witness Shri Kishan who is only witness, we have to hold that the dharia and axe were not used for causing death to Kanaram deceased.
20. However, the lathi blow was given and according to medical evidence discussed above, it was sufficient to cause death and it has resulted in causing death of the deceased. We have, therefore, no hesitation in believing P.W. 8 Shri Kishan that the injuries were caused to deceased Kanaram by lathi blow, which was used by Sadulram appellant. This lathi blow was given on the head and as per medical evidence, there was compound fracture of the head.
21. The story as given by Sari Kishan shows that the dispute- between the parties was about the use of water tap. It was alleged that the accused; party used the water tap for washing their hands etc. and this was resented to by the deceased. This sort of dispute was going on for about one year and may a times, there were scuffle. Obviously, this background shows that there was no premeditation and further there was no intention to cause death. Since inspite of the allegations of dharia and axe, we have come to the conclusion that only lathi was used. We are further of the view that in the facts and circumstances of the case, the accused can be held guilty under Section 304 part II only.
22. We are not prepared to accept the contention of Mr. Dave that on the basis of the testimony of hostile witness, it should be believed that F.W. 8 Shri Kishan was not present when the actual beating was given to Kanaram. As we have already mentioned above, Shri Kishan himself received injuries and further presence of Shri Kishan in the circumstance was not unnatural. That being so, the hostile witnesses have only tried to defend the accused party and we cannot place reliance on them, for, disbelieving P.W. 8 Shri Kishan. We are also of the opinion that the testimony of this witness stand corroborated by the medical evidence to a larger extent and to some extent P.W. 9 Kaluram has also corroborated him. We, therefore hold that all the three accused Sadulram, Amarchand and Hari Bhajan were guilty under Section 304 part II read with Section 34 I.P.C.
23. The result of the above discussion is that the conviction of all the three accused-appellants under Section 302 I.P.C. is set-aside and so also the sentence given thereunder. However, the same is converted from 302 to section 304 part II, I.P.C. and all the three appellants Amarchand, Sadulram and Hari Bhajan are convicted under Section 304 part II, I.P.C. and sentenced to five years' rigorous imprisonment on this count. The conviction recorded and the sentence passed by the trial court under Section 323 I.P.C. read with section 34 I.P.C. against all the accused-appellants of one year's rigorous imprisonment is also maintained and both the sentences would run concurrently The appeal is partly accepted as indicated above. The accused Hari Bhajan is on bail and the trial court would take steps to get him arrested for undergoing the sentence. The other two accused Amerchand and Sadulram are already in jail and they would undergo the sentence passed above under Section 304 Part II of five years' rigorous imprisonment and 323 read with 34 of one year's rigorous imprisonment, both of which would run concurrently.