S.C. Agrawal, J.
1. This appeal has been filed by the appellants Achlaram and Dungar Ram against the judgment and order dated January 31, 1977, passed by the Sessions Judge. Jodhpur, in sessions case No. 91 of 1975. In the aforesaid case the appellants were prosecuted in respect of offence under Section 307 IPC. By the judgment and order aforesaid, the Sessions Judge has convicted appellant Dungar Ram under Section 307 IPC and has sentenced him to rigorous imprisonment for a period of two years. Appellant Achlaram has been acquitted of the charge under Section 307 IPC and has been convicted for the offence under Section 323 IPC and sentenced to the period of imprisonment already undergone.
2. The prosecution of the appellants relates to an incident which is alleged to have taken place on August 9, 1975 at about 6 p m. in the field of one Kammu khan and in the said incident, one Mohammed Khan received injuries. Two reports were lodged with the police in relation to the aforesaid incident. One report (Ex. P. 5) was lodged by Subhan Khan P.W. 6 at police station Jhanwar on August 10, 1975 at 3 45 a.m. In the said report it was stated that the informant had been informed by Kadar Khan at about 9 p.m. that at about 6 p. m. he and Mohammed Khan while they were returning, were assaulted by Achlaram and others on the way and that Mohammed Khan was lying at the spot and thereupon the informant Subhan Khan went to the spot and found that there were injuries on the head of Mohammed Khan and he was unconscious. In the said report, Subhan Khan said that he was not aware as to how many persons assaulted Mohammed Khan and with what weapon. After the aforesaid report had been recorded in the police station the Head Constable Desh Raj P. W. 8 left for the scene of occurrence. The other report is the report (Ex. P. 1) given by Kadar Khan P.W. 2 to Head Constable Desh Raj at 6 p.m. on August 10, 1975 when he reached the scene of occurrence. In the said report it has been stated that on August 9, 1975 at about 6 p.m. the informant Kadar Khan and Mohammed Khan were keeping a watch over the crops standing in the field of Kammu Khan in khasra No. 169. Appellants Achalaram and Dungar Ram as well as Mangalram. Bhiyaram, Kbimaram, Pataram, the wife of Achlaram, the wife of Pataram and daughter of Achlaram while taking their cattle to their house, drove the cattle into the field of Kammu Khan. When Kadar Khan and Mohammad khan objected to it, appellant Dungar Ram, who was armed with a lathi, entered the field of Kammu Khan and inflicted three or four blows with lathi on mohammed Khan as a result of which Mohammed Khan fell down. The informant Kadar Khan has further stated that on seeing this he ran away and that the appellants Dungar Ram and Achlaram pursued him but he was able to escape and he gave the information about the incident to Subhan Khan. On the basis of the aforesaid report (Ex. P. 1) which was recorded at police station, Jhanwar, on August 10, 1975 at about 2 p.m. a case under Section 447 and 323 IPC was registered and the investigation was started. The injuries of Mohammed Khan were examined by Dr. P. Dayal P.W. 7 on August 10, 1975 at 9.15 a.m. and according to the injury report (Ex. P. 6) the following injuries were found on his person:--
1. Abrasion 1.5 cm x o.2 cm on the left frontal eminence.
2. Abrasion 5 cm x 2 cm with ill-defined haemotoma on the light fronto-parietal region of scalp.
3. Ill-defined swelling over the left shoulder region.
4. Bruise 3 cm x 2 cm over the lumber region with tenderness.
On X-ray examination depressed and comminuted fracture of right parieto occipital region of scalp was found, Appellant Dungar Ram was arrested on August 17, 1975 and appellant Achlaram was arrested on August 18, 1975. After completing the investigation, the police filed a charge sheet against the appellants and they were committed for trial to the court of Sessions and charge under Section 307 IPC was framed against both the appellants.
3. The prosecution, in support of its case, examined eight witnesses, out of whom Mohammed Khan P.W. 1, Kadar Khan P.W. 2, Khumaram P.W. 3 and Ramuram P.W. 5 are the eye witnesses of the occurrence. The appellants, in their statements recorded under Section 313 Cr PC, pleaded that they have been falsely implicated. Appellant Achlaram has stated that they field in khasra No. 169 was his and that he had sown 'bajra' crops in the said field and that a false case had been made against him for the purpose of obtaining the possession of the field. Appellant Dungar Ram has stated that he was living in the Keru Khania for the past three years and that he was not present at the scene of occurrence. The appellants also examined four witnesses.
4. The Sessions Judge has held that on the basis of the evidence adduced by the prosecution, it was established that both the appellants had assaulted Mohammed Khan with lathis. The Sessions Judge has further found that the injury on the parietal region of Mohammed Khan was inflicted by appellant Dungar Ram and that according to the evidence of Dr. P. Dayal, P.W. 7, the said injury on the parietal region was grievous and dangerous to life. The Sessions Judge, therefore, held that the offence under Section 307 IPC was made out as against appellants Dungar Ram. The Sessions Judge was, however, of the view that the occurrence had taken place suddenly without preconcert and the provisions of Section 34 IPC could not be invoked and that the accused persons could not be convicted under Section 307 read with Section 34 IPC. The Sessions Judge, therefore, convicted appellant Dungar Ram alone of the offence under Section 307 IPC and convicted appellant Achala Ram of the offence under Section 323 IPC. Hence this appeal.
5. I have heard Shri P. L. Choudhrry, the learned Counsel for the appellants and the learned Public Prosecutor.
6. During the course of arguments Shri Choudhary did not challenge the conviction of the appellant Achalaram under Section 323 IPC, and he confined his submissions against the conviction of appellant Dungar Ram under Section 307 IPC Shri Choudhary has submitted that on the basis of the evidence on record, it cannot be held that it was appellant Dungar Ram, who had inflicted the grievous injury on the head of Mohammed Khan since there is doubt as to which of the two assailants had caused the said injury on the head, both Dungar Ram and Achalaram could be convicted of the offence under Section 323 IPC, and the conviction of Dungar Ram of the offence under section 307 IPC cannot be sustained. In this connection Shri Choudhary has referred to the statements of the eye witnesses examined by the prosecution as well as the two reports Ex. P. 5 and Ex. P. 1.
7. According to the medical evidence Mohammed Khan had received four injuries out of which two were on the head, one on the left frontal eminence and the other on the right fronto-parietal region of scalp. The X-ray examination revealed depressed and comminuted fracture of right parieto occipital region of the scalp. This indicates that the injury No. 2 on the right fronto-parietal region of scalp was grievous and dangerous to life. The question which arises for consideration is whether on the basis of the evidence it can be definitely said that it was Dungar Ram who had inflicted the aforesaid injury which was found to be grievous and dangerous to life.
8. A perusal of the report (Ex. P. 5) lodged by Subhan Khan shows that in the said report, the informant Subhan Khan P.W. 6 has only mentioned the name of Achalaram and has not mentioned the name of Dungar Ram. In the said report it has also not been disclosed as to who had inflicted the injuries on the person of Mohammed Khan and what was the weapon of the assault. In the report (Ex. P. 1) which was made subsequently by Kadar Khan P.W. 2, appellant Dungar Ram alone is said to have assaulted Mohammed Khan with a lathi and is said to have inflicted three or four blows on Mohammed Khan. The name of Achalaram is not mentioned in the said report. Neither of the two reports throw any light on the question as to who caused the grievous injury on the parietal region of head of Mohammed Khan.
9. As regard the eye witnesses examined by the prosecution, it may be observed that Mohammed Khan P.W. 1 has stated that first of all Achala ram had given a blow with the lathi on his head and thereafter appellant Dungar Ram gave an injury on his temple with a lathi and after receiving the two injuries, he became unconscious. But in his statement (Ex. D. 8) recorded by the Investigating Officers on August 12, 1972 he did not say so. In the said statement he had stated that both Achalaram and Dungar Ram were armed with lathi and that both of them entered the field of Kammu Khan and raised lathi blows on him. When questioned about this contradiction, Mohammed Khan has denied his statement (Ex. D8) and has asserted that he had told the police the same thing as doposed before the court.
10. Kadar Khan P.W. 2 has stated that Achalaram and Dungar Ram both were armed with lathis and Achlaram gave an injury with a lathi on the head of Mohammed Khan and thereafter Dunger Ram gave a blow with lathi on the head of Mohammed Khan and thereupon Mohammed Khan fell down. Khumaram P.W. 3 has stated that Achalaram and Dungar Ram assaulted Mohammed Khan with lathis. To the same effect is the statement of Ramuram P.W. 5, who has stated that Achalaram and Dungear Ram had assaulted Mohammed Khan on his head with lathis and that after receiving two blows on the head he fell down. According to the said witness the first blow was given by Achlaram on the head and the second blow was given by Dungar Ram on the head.
11. From the aforesaid evidence adduced by the prosecution it appears that both the appellants namely Achlaram and Dungar Ram had assaulted Mohammed Khan with lathis on the head and each of them is said to have given one blow on the head of Mohammed Khan Khumaram and Ramuram do not specify the parts of the head where the aforesaid two blows were inflicted by Achalaram and Dungar Ram and all that they say that both the injuries were inficted on the head. Mohammed Khan P.W. 1 during the the course of trial had said that both the injuries were inflicted on the head. He does not specify the place where the blow given by Achalaram struck him on his head, but he says that the blow given by Dungar Ram struck near the temple. In the statement recorded during the course of the investigation, Mohammed Khan did not specify the parts of the head where the blow given by Dungar Ram had hit and all that he had stated was that both Achalaram and Dungar Ram had inflicted injuries on his person.
12. Thus there is only the statement of Mohammed Khan made before the Sessions Judge during the course of trial wherein for the first time it has been suggested that the injury on the parietal region was caused by Dungar Ram. The aforesaid statement of Mohammed Khan is not correborated by any other evidence adduced by the prosecution In my opinion on the basis of the solitary statement of Mohammed Khan made for the first time during the course of trial, it is not possible to hold that it was Dungar Ram who had inflicted the injury on the parietal region of the head because the other eye witnesses examined by the prosecution show that injuries on the head were inflicted by Achlaram and Dungar Ram and either of them could have caused the injury on the parietal region of the head. On the basis of the evidence on record, it is not possible to arrive at a conclusion that injury No. 2 on the right fronto-partial region of scalp of Mohammed Khan had been inflicted by appellent Dungar Ram, In the circumstances, if the case of Achlaram and Dungar Ram stand on the same footing and the conviction of Dungar Ram under Section 307 I.P.C. cannot be sustained and like Achlaram, he can be convicted of the offence under Section 323 I.P.C. only. I would, therefore, set aside the conviction of appellant Dungar Ram under Section 307 I.P.C. and convict him for the offence under Section 323 I.P.C, and sentence him to the period of imprisonment already undergone by him.
13. In the result the appeal is partly allowed, the conviction and sentence of appellant Achlaram under Section 323 I.P.C. is maintained. The conviction of Dungar Ram under Section 307 I.P.C. and the sentence imposed under Section 323 I.P.C. and is sentenced to the period of imprisonment already under gone. The appellant Dungar Ram is on bail. He need not surrender to his bail bonds, which will stand cancelled.