S.N. Modi, J.
1. These three appeals, one by accused Kalyan, Daulatram and Sukhpal through their counsel, the second by accused Daulatram and Kalyan and the third by accused Sukhpal, both through jail are directed against the judgment of the Additional Sessions judge, Bundi, whereby he convicted Dauiatram under Section 302 IPC for the murder of Hardeva and Kalyan and Sukhpal under Section 302 and Section 302 read with Section 34 IPC for the murder of Gopiram alias Gopi respectively. Each one of them has been sentenced to under go imprisonment for life.
2. The prosecution case as revealed by the eye witnesses PW 1 Jagannath, PW 7 Balaknath, PW 8 Lorkia end PW 9 Raghunath is like this.
3. The two deceased Gopi and his son Hardeva resided at Banthall. Accused Kalyan and his son Daulatram resided at Neem-ka-kheda. Deceased Gopi's daughter Mst. Rami was married to accused Dauiatram and Mst. Sukpali, daughter of Kalyan, was married to Hardeva Mst. Sukhpali left her husband Hardeva sometime ago and performed a nata marriage with one one Bheru. On 26-1-69, the date on which the incident look place, Mst. Rami, who was residing with her husband Daulatram at Neem-ka-kheda, left for her patents' house at Banthali. When Kalyan came to know about it, he along with Sukhpal and PW 9 Raghunath went to the house of Gopi at Banthali at about 12 noon Kalyan was armed with a single barrel muzzle loading gun and Sukapal had kulhari and gandasi with him. On reaching the house of Gopi, all of them along with Gopi and Hardeva sat down on tne chabutri situate outside the house of Gopi Kalyan asked Gopi to send Mst. Ram's to his house or to return the ornaments which she brought with her from his house. Hardeva in reply said that neither they would send Mst. Rami nor would they return the ornaments. When these talks were going on, Daularam atmed with an axe suddenly came there. He dealt a blow with the axe on the head of Hardeva and fled away. Hardeva on receiving the blow fell down on the ground. Gopi stood up to go near his son Hardeva. Kalyan thereupon fired his gun at Gopi causing an injury on the left side of the chest just above the nipple. Gopi, in turn, dealt a danda blow on the head of Kalyan. Sukhpal then dealt a blow with the axe on the shoulder of Gopi. Kalyan and Sukhpal thereafter left their weapons on the scene of the occurrence and went away leaving behind Hardeva badly injured and Gopi dead.
4. PW 1 Jagannath, PW 7 Balaknath and PW 8 Lorkia who bad witnessed the incident narrated the same to one Kesharilal The latter went to the police station, Dei, situate at a distance of 12 miles from the place of the incident and lodged the First Information Report at 7.30 p. m. The first informant, however, could not be examined as he expired before the trial commenced. The Station House Officer, Dei, reached the scene of the occurrence and as Hardeva's condition was serious, he took Hardeva to Bundi in his jeep car. Since Hardeva's condition became very serious in the way, he got his dying declaration recorded by PW 11 Shri Kishen, Pradhan, Panchayat Samiti, Nenwa, which is Ex. P 26 on the record Hardeva was brought to the Bundi Hospital and from there he was taken to Kota for treatment, but he expired before he reached Kota. PW 2 Dr. Jai Gopal Arora conducted post-mortem examination on the dead bodies of Gopi and Hardeva. He found the following injuries on the body of Gopi:
1. One abrasion 3/4' W x 1/4' above the right shoulder joint. It is oblique in direction.
2. One incised wound semi-luner in shape on the back of the right shoulder joint, 2' away from the lateral end of the right clavicle-length 2' x breadth 1 1/2' x 1/2' depth.
3. One incised wound on the right side of scalp oblique in nature 1/2' length x 1/4' depth x 1/2' breadth on the right side scalp, 4' away from right ear, 4' away from the posterior occipital protuberance.
4. wound of entry situated on the left side of chest just above the nipple size 1' x 3/4' x oval shape The edges of the wound are inverted, bruised, irregular and lacerated
5. Wound of exit situated on the left side of the back: Two in number. They are one inch apart. The upper Wound 2' left to the seventh thoracic vertebra is of the size 1/2' x 1/4' and margins are everted The lower wound 1 1/4' left to right thoracic vertebra is of the size of 3/8' x 1/3' and margins are everted.
According to the doctor, the death of Gopi was caused due to profuse hemorrhage and suffocation caused by the presence of the blood in the pleural cavity and air passages resulting from injury No. 4.
5. The doctor noticed the following external injuries on Hardeva's dead body:
1. Abrasion-Two on the medial side of the left forearm 1' apart circular 1/2' x 1/2', half inch below left colcannon process of ulna.
2. One bruise 2' x 2 1/2', on the lateral side of the right buttock, 6' below the crept of the hip bone.
3. On incised wound on the right side of scalp. Oblique in direction 4' x 1' x 4'. It was 2' away from the light ear, 3' away from the posterior occipital protuberance, and 5 1/2' from the right eye brows.
On opening the dead body, the doctor found fracture of right temporal and right parietal bones with incised wound in the brain and membranes corresponding to the fracture of parietal and temporal bones. According to the doctor, injury no. 3 proved to be fatal as it caused injury to the brain resulting in hemorrhage and shock.
6. The doctor also examined accused Daulatarm and Kalyan and found one lacerated wound on the right scalp on each one of them.
7. After usual investigation, the police put up a challan against the accused appellants in the court of Sub Divisional Magistrate, Nenwa, who after enquiry, committed them to the court of the Additional Sessions Judge, Bundi.
8. Accused Sukhpal totally denied having gone to village Baothali on the date of the incident. Accused Kalyan and Daulatram in their statements before the committing Magistrate admitted having gone to the triodes of Gopi at Banthali on the dare of the occurrence. Daulat Ram, however denied that he dealt a blow with the axe on the head of Hardeva. On the contrary, be stated that Hardeva dealt one blow with the lathi on his tread which felled him down unconscious. Kalyan stated before the committting Magistratete that Gopi and Hardeva took away Mst. Rami with the ornaments and cash amounting to Rs. 150/- from his house. He therefore along with Daulatram went to the house of Gopi. On reching there, Hardeva dealt a lathi blow on the head of Daulatram which felled him down. Gopi then dealt a blow with the axe on Kalyan's head. When Gopi attempted to strike another blow on Kalyan, the latter fired his gun at Gopi. Hardeva then dealt a lathi blow causing injuries to Kalyan's finger. When Hardeva attempted to strike another blow to Kalyan, the latter picked up Gopi's, axe and dealt a blow with it on Hardeva in self-defence. Kalyan thereafter, lifted Daulatram on his back and went back to his village.
9. Before the trial court, Daulatram in his statement under Section 342 Cr. P.C. showed complete ignorance about the incident. Kalyan in his statement Under Section 342 Cr. P.C. told altogether a different story. He attributed the fatal injury with axe on the head of Hardeva to PW 9 Raghunath. He further stated that while warding off the blow, the gun went off automatically. Two witnesses DW 1 Modti and DW 2 Surajmal were examined in defence. DW 1 stated that Mst. Rami was removed forcibly from the House of Kalyan by Gopi, Hardeva and six others. DW 2 stated that on the date of the occurrence, Sukhpal was grazing cattle along with him in these jungle of Neem kakheda.
10. The learned Additional Sessions Judge believed the testimony of the eye-witnesses PWs 1, 7, 8 and 9 and convicted the appellants as stated at the out set. The learned Additional Sessions Judge did not believe the testimony of the detente witnesses. He also put on residence on the dying declaration Ex P. 26.
11. Arguing the appeal, Mr. P.C. Mathur, the learned advocate for the appellants has contended that the evidence of the eye-witnesses is highly improbable and wholly unbelievable, in as much as it was impossible for Gopi to have inflicted a danda blow on the head of Kalyan after, having received, the fatal gun-shot injury on his chesty. On the other hand, it was argued, by the learned Public Prosecutor that Gopi could, have very well inflicted a danda blow on the head of Kalyan even after receiving the gun-shot injury on his chest. In order to resolve this conflict, we thought it necessary to examine additional evidence with the consent of the parties. We, therefore summoned Dr. P. Dayal, Medical Jurist and Head of the Department of Forensic Medicine, Medical College at Jodhpur He after thorough study of the post-mortem report of Gopi (Ex. P. 12) and the report of the Forensic Science Laboratory (Ex. P. 13) about the two pellets which were recovered from the spot, opined that the distance between the assailant and the victim was about three to six feet at the time the gun was fired and as the injury on the chest of Gopi was not of the nature which could have caused instantaneous death, it was possible the victim to inflict blows, to the assailant, even after receivsing the gun-shot injury on his chest. In view of the opinion of the expert, we find no improbability in the testimony of the eye witnesses.
12. Mr P.C. Mathur has next contended that the defence story given by Kalyan and Daulatram in their statements before the committing court is highly probable, for, it satisfactorily explains the injury on the person of Daulatram, while the prosecution evidence has failed to explain how Daulatram received injury on his head. He has fur her urged that since the eye-witnesses have not explained the injury found on the person of Daulatram; we must discard their testimony. In this regard, he invited our attention to the decision of the Supreme court in Moharrai v. The State of Bihar : 1968CriLJ1479 . Their lordships in that case cases to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the person of the accused went to show that the prosecution witnesses were not truthful witnesses. Their lordships further held on the material of the case the possibility of self defence cannot be ruled out.
13. In the present case, the prosecution in the trial court tendered the statements of the accused recorded by the committing Magistrate and they are therefore evidence in the case in view of the provisions contained in Section 287 Cr. P.C. What weight should be attached to those statements will depend on the question whether they are reliable or not.
14. As noted above, accused Daulatram in his statement under Section 342 Cr. P.C. showed complete ignorance about the incident although in his statement before the committing court, he admitted having gone to the house of Gopi along with his father Kalyan on the date of the incident. Similarly, Kalyan in his statement under Section 342 Cr. P.C. gave a complete go bye to his earlier statement before the committing Magistrate and narrated all together a different story, In face of such contradictory statements of the accused, much value cannot be attached to their statements before the committing Magistrate.
15. Mr. P.C Mathur has very seriously contended that an accused is merely required to make out a prima facie case of the existence of private of private defence and be need not prove it by adducing positive evidence. According to him, the failure on the part of the prosecution to explain the injury on the person of Daulatram is it self sufficient to portables the plea of self-defence raised by the accused in their statements before the committing court.
16. Under Section 105 of the Evidence Act, the onus is placed on the accused to prove the existence of the circumstances bringing the case within any of the general exceptions and the court shall presume the absence of such circumstances. It Is, however, well settled that the burden on the accused is not of the same nature as one on the prosecution to establish the existence of the offence beyond reasonable doubt. The nature of the burden on the accused to bring its case within the general exceptions is analogous to that resting on the plaintiff in civil cases, It is also well accepted principle that if from the prosecution evidence it is probable that the defence version may be true, the accused are entitled to a verdict in their favour even though the truth of the version might not have been proved beyond reasonable doubt. In the present case, the only circumstance, which, according to the learned counsel) probablise the plea of self-defence is that the prosecution has failed to explain the injury found on the head of accused Daulatram That injury is a lacerated wound 1 1/4' x 1/3' on the scalp, 1/4' towards right from mid line and 2' above the right eye brow. According to the doctor, it is a simple injury. The injury on its very face appears to be a superficial one and could very well be suffered even by consent. Again, the possibility of receiving this injury by falling on the ground while running away from the scene of the occurrence also cannot be ruled out. The Supreme court laid down in Bhagwan Paeil v. The State of Maharashtra : 1974CriLJ145 that there is no hard and fast rule that if the prosecution witnesses fail to explain the injuries on the person of the accused, their entire evidence should be discarded. The eye-witnesses PWS. 1, 7, 8 and 9 had no animus to depose falsely against the accused or to suppress the facts favourible to the accused. The presence of PW 1 and PW 7 on the scene of the recurrence was highly natural as they were neighbors and resided close to the house of Gopi where the incident took place Similarly, the presence of PW 9 on the scene of the occurrence cannot be deputed as he admittedly went to the house of Gopi along with accused Kalyan and Sukhpal. PW 8 has explained how he happened to be present at the scene of the occurrence Regarding the part played by each accused in the incident, the eye witnesses have been consistent throughout and nothing could be pointed out by Mr. Mathur to assail their testimony. The medical evidence also lends full assurance to the evidence regarding the nature of the weapons used by these accused in commuting the murder of the two persons. In view of the unimpeachable evidence led by the prosecution, we attach no importance to the failure on the part of the prosecution to explain the head injury on the person of Daulatram.
17. Lastly, it was contended by Mr. Mathur that from the prosecution evidence, it does not necessarily follow that Sukhpal shared the common intention with Kalyan to kill Gopi, or that Sukhpal in furtherance of the common intention inflicted the blow to Gopi We find considerable force in the above contention. According to the eye-witnesses, it was Kalyan who fired at Gopi. Again, the fatal injuries which resulted in the death of Gopi were the gun shot injuries. Sukhpal inflicted only one blow with the axe causing simple injury on the right shoulder of Gopi. No other injury was inflicted to Gopi by Sukhpal. The prosecution evidence further shows that Sukhpal inflicted the axe blow to Gopi after the latter had inflicted a danda blow on the head of Kalyan. It is true that Sukhpal went to the house of Gopi along with Kalyan armed with the axe and gandasi and left the scene of the occurrence along with Kalyan. But at the same time it is also true that Sukhpal did not use his weapon till Daulatram suddenly appeared on the scene of the occurrence and till both Daulatram and Kalyan inflicted fatal blows to Hardeva and Gopi respectively. These facts go to show that it is a case of sudden fight and there was no prior concert or prior meeting of minds between Sukhpal and Kalyan. It was contended by this learned Public Prosecutor that a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may develop on the spot as between a number of persons. We have no quarrel with the above proposition of law which is well settled. The question that arises before us is whether on the proved facts can it be inferred that Sukhpal shared the intention with Kalyan to commit Gopi's murder In our opinion, having regard to the sequence of the assaults, the part of the body on which the assault by axe was aimed by Sukhpal and the actual result of the assault by Sukhpal, it is difficult to infer with certainty that Sukhpal shared common intention with Kalyan to kill Gopi. It may be that Sukhpal Intervened and dealt the below with the axe on the shoulder of Gopi with the sole intention to incapacitate Gopi from further attacking Kalyan with the danda possessed by him. In this view of the matter, we do not feel persuaded to sustain the conviction of Sukhpal under Section 302 read with Section 34 IPC He can be held guilty in respect of the injury caused to Gopi for an offence under Section 324 IPC only.
18. So far as Kalyan and Daulatram are concerned their cases squarely fall within the purview of Section 300 IPC and they have been rightly convicted for the offence under Section 302 IPC. We accordingly up hold their conviction under Section 302 IPC and the sentence of imprisonment for life awarded to each one of them. We acquit accused Sukhpal of the offence under Section 302 read with Section 34 IPC and set aside the sentence of imprisonment his life awarded to him. Instead we convict him for the offence under Section 321 IPC and sentence him to undergo rigorous imprisonment for three years.
19. In the result, all the three appeals are decided accordingly.
20. Accused Sukhpal is on bail. The District Magistrate, Bundl, is directed to take him into custody and send him to jail to serve out the sentence awarded to him.