R.L. Gupta, J.
1. The appellant Ghanshyam has been convicted by the Additional Sessions Judge No. 2, Jodhpur, by his judgment dated 9-3-1977, under Section 302 r/w Section 34 of the Indian Penal Code, for having committed the murder of one Pukhraj and sentenced to imprisonment for life and under Section 324 of the Indian Penal Code for having voluntarily caused hurt to PW 12 Parasmal with a sharp edged weapon and sentenced to undergo rigorous imprisonment for one year.
2. According to the prosecution, on 30-1-1971 at about 3 p.m., the appellant Ghanshyam along with his two brothers Vijairaj alias Vijai Kishan and Vasudeo and their two companions Mahesh and Roop Kishore assaulted the deceased Pukhraj with 'pharsis' and knives, while he came to the rescue of his son PW 12 Parasmal, who was being assaulted by them with their weapons. As a result of the murderous assault, the deceased Pukhraj fell down unconscious. He along with his son Parasmal PW 12, was taken to the Government Dispensary, Bilara, by his son PW 4 Shanti Lal, who came to the spot on hearing that his father and brother had been assaulted. The first information report of the incident Ex P/6 was also lodged by Shanti Lal at Police Station, Bilara, at 3.30 p.m., i.e., within half an hour to the incident. In the report, Shantilal stated that the appellant Ghanshyam and his brother Vijairaj alias Vijai Kishan along with their 2/3 companions, had assaulted the deceased Pukh Raj.
3. The deceased Pukh Raj made a dying declaration Ex. P/14 to the effect:
iz'u% vkidks fdlus ekjk
mRrj % eq> ?ku';ke] fot; fd'ku o nks vkSj vkneh;sk us ekjk A
iz'u % fdl gfFk;kj ls ekjk A
mRrj % fot; fd'ku] jke fd'ku ds ikl /kkjnkj vkStkj Fkk A
iz'u % D;k vkStkj Fkk
mRrj % /kkjnkj vkStkj Fkk A
4. At the Government dispensary, the deceased Pukhraj and his son PW 12 Parasmal were treated for their wounds by Dr. Ashok Ramchandani, who found that the deceased Pukhraj had the following external injuries:
(i) Incised wound 2 x 1/2' x 1/4' with bleeding on the scalp on the left of midline placed longitudinally just behind hairline; fracture of skull bone underlying wound No. 1 along its whole length;
(ii) incised wound 2' x 1/2' x 1/2' with bleeding oblique on the left parietal region of scalp at middle external laterally forward; fracture of skull underlying wound No. 3 along its whole length.
(iii) incised wound 2' x 1/2 x 1/2' with bleeding on the right parietal region of scalp placed oblique on its posterior part; fracture of skull underlying wound No. 5 along its whole length;
(iv) bruise 2' x 1' on the back of it forearm at middle.
5. As the condition of the deceased Pukhraj and his son PW VI Paras Mal was precarious, they were rushed to the Mahatma Gandhi Hospital, Jodhpur, Adhere the deceased Pukhraj succumbed to his injuries on the next day, i.e., on 31-1-1971 at 7 20 a.m.
6. PW 11 Dr Prasanna Mal Bhandari performed the autopsy on the dead body of the deceased Pukhraj and confirmed the injuries found by Dr. Ashok Ramchandani.
7. On dissection, he found that he had the following internal injuries:
(i) fracture of the fronto parietal region frontal bone left side into 3 pieces;
(ii) depressed fracture of the left parietal bone just left to the injury No. 1;
(iii) depressed fracture of the right parietal region; The membrances were congested Blood was coming at the side of the injury and clotted blood was coming out.
(iv) incised wound measuring 3 cm. x 1/2 cm. x 3 cm. deep placed on the left frontal hemisphere of brain; clotted blood found;
(v) incised wound 2 cm. x 1/2 cm. x 3 cm. deep placed on the right frontal hemisphere.
8. In the opinion of the Doctor, the death was due to the cumulative effect of the injuries.
9. There can be no doubt as to the identity of the appellant Ghanshyam being one of the assailants. The testimony ofPW 12 Parasmal, who was himself a victim of the assault, clearly goes to show that the appellant Ghanshyam struck the first blow on the head of the deceased Pukhraj with his 'pharsi'. His testimony is corroborated by his son PW 5 Suresh Chandra, who was returning from school at the time when the incident took place. No doubt, the prosecution also examined PW 1 Durgaram and PW 2 Jawana ram, but these witnesses turned hostile. They were confronted with their previous statements Ex. P/1 and Ex. P/3 respectively. Apart from the testimony of PW 12 Parasmal, as corroborated by PW 5 Suresh Chandra and PW 4 Shanti Lal, there is also the dying declaration of the deceased Pukhraj Ex. P/14. On consideration of this evidence, the learned Additional Sessions Judge has, in our view, rightly held the appellant Ghanshyam to be one of the assailants of the deceased Pukhraj.
10. The short question for consideration in this appeal, is whether the appellant Ghanshyam is guilty of culpable homicide not amounting to murder punishable under Section 304 Part I or II of the Indian Penal Code, as contended by the learned amicus curiae or of culpable homicide amounting to murder punishable under Section 302 of the Indian Penal Code, as held by the learned Additional Sessions Judge. According to the testimony of PW 11 Dr. Parasannamal Bhandari, the death of the deceased was due to the cumulative effect of the injuries received by him. The deceased had 3 head injuries. All the three head injuries were incised wounds caused by sharp-edged weapon.
11. The version of P.W. 12 Parasmal and P W. 5 Suresh Chandra, however, is that the deceased Pukhraj, who was assaulted by the appellant Ghanshyam with his 'phars', by the accused Vasudeo with a knife, and by the accused Mahesh and Roop Kishore with their knife and 'pharsi' had 3 head injuries. It can not, therefore, be said that all the injuries were caused by the appellant Ghanshyam.
12. No doubt, PW 12 Parasmal and PW 5 Suresh Chandra state that the appellant struck first blow on the head of the deceased Pukhraj with a 'pharsi', but PW 11 Dr. Parasannamal Bhandari does not say that which of the injury was sufficient, in the ordinary course of nature, to cause death The other circumstances which must weigh in determining the guilt of the appellant, is that there is no appeal preferred by the State Government against his acquirable under Section 307 r/w Section 34 of the Indian Penal Code in respect of the assault on PW 12 Parasmal for which he has only been convicted under Section 324 of the Indian Penal Code. The learned Sessions Judge has also held that there was to intention on the part of the appellant to commit the murder of PW 12 Parasmal, who was assaulted first. That being so, the appellant Ghanshyam and his brother Vijairaj alias Vijaikishan and their companion had only the common intention to commit an assault to PW 11 Parasmal and the deceased Pukhraj, father of PW 12 Parasmal, was killed when he subsequently came to the rescue of PW 12 Parasmal.
13. In our judgment, the appellant Ghashyam can only be convicted under Section 304 Part I r/w Section 34 of the Indian Penal Code of having caused such bodily injury to the deceased Pukhraj as was likely to cause death. Their Lordships of the Supreme Court in Hardev Singh and Anr. v. The State of Punjab : 1975CriLJ243 . in some what similar circumstances, held that the accused was guilty under Section 304 Part I of the Indian Penal Code. There, the intention of the accused party was to assault K who was given a 'takwa' blow on his head, but his mother T, who came to the rescue of her son K and laid herself on K. in order to save him, was inflicted a kirpan blow on her head as a result of which she eventually died; the opinion of the Doctor was that the head injury on T was sufficient, in the ordinary course of nature to cause her death. Ail the injuries on her son K were, however, simple in nature. In those circumstances. their Lordships held that the accused could not be attributed with the intention to commit the murder of T, but were only guilty of culpable homicide not am minting to murder punishable under Section 304 Part I of the Indian Penal Code The conviction of the appellant Ghanshyam under Section 302 r/w Section 34 of the Indian Penal Code is, therefore, altered to one under Section 304 part I r/w 34 of the Indian Penal Code & he is sentenced to undergo rigorous imprisonment for a period of 7 years.
14. The conviction of the appellant Ghanshyam under Section 324 of the Indian Penal Code for voluntarily causing injuries to PW 12 Parasmal with the 'pharsi', is based on the direct testimony of PW 12 Parasmal and his son PW 5 Suresh Chandra. There is no reason to disblieve the testimony of these witnesses. They are natural witnesses. Of them, PW 12 Parasmal is himself the victim of the assault. Further, the presence of his son PW 5 Suresh Chandra at the time of assault cannot be denied. Their evidence stands supported by the medical evidence as well as finds corroboration from the first information report Ex. P/6. The conviction of the appellant Ghanshyam under Section 324 of the Indian Penal Code, must, therefore, be upheld.
15. The result, therefore, is that the appeal partly succeeds and is allowed. We set aside the conviction and sentence of the appellant Ghanshyam under Section 302 r/w Section 34 of the Indian Penal Code and instead convict him under Section 304 part I r/w Section 34 of the Indian Penal Code and sentence him to suffer rigorous imprisonment for a period of seven years. The conviction and sentence of the appellant Ghanshyam under Section 324 of the Indian Penal Code are, however, maintained.