Kanta Bhatnagar, J.
1. This appeal is directed against the judgment passed by the Sessions Judge, Banswara dated April 6, 1977 by which the appellants were convicted for the offences under Sections 147 and 325/149 of the Indian Penal Code and sentenced to six months R.I. each on the first count and five year R.I. each on the second count with an order that the sentences awarded on two counts shall run concurrently.
2. Briefly stated, the facts of the case giving rise to this appeal are as under: About a year prior to the murder of Natha, when he had gone to have a watch on his field, appellants Tejiya Laleng and Kamji gave a beating to him and snatched his ornaments. Natha instituted a case against them which was pending in the Court of Munsif and Judicial Magistrate, Kushalgarth. Thereafter, a few days prior to the present incident Dalla had given a beating to Natha. Natha went to Kalinjara to lodge the report. When he was returning from Kalinjara, Poonja (PW 4) met him in the way near the precincts of 'Dhimbri' and 'Nal' at about 8 00 p.m. When both of them sad reached near the field of Nawla and Haloo, the four appellants along with one Rajia came out of the bushes. Poonja wished them. The accused hurled abuses and attacked him. Natha began to run away but the miscreants inflicted lathi blows on his leg and he sat down there. Poonja (PW.4) sustained injuries on the leg and when he asked the assailants as to why they were beating him, they asked him to go direct to his house and warned him of dire consequences in case he would tell about it to any body. Poonja went away to his house. He had sustained injuries on his leg and back. According to the witness, Roopa and Kamji had axes with him and Tejiya, Rajia and Laleng were having lathis with them. On hearing the cries of Natha his father Dalji (PW.1), his brother Khatu (PW.2) and his two wives Smt. Kanwari (PW 3) and Smt. Sukhi and his son Lakhma rushed to the site where Natha was lying injured. He was conscious at the time. He told his family members about the four appellants and one Rajia giving a beating to him. The appellants had left the place by that time. Dharji, Nagi, Thawra and Roopji were called by Khatu (PW 2) at the site. Natha succumbed to the injuries sustained by him. Poonja went to the Police Station Kalinjara and lodged an oral report which Head Constable Krishana Kant reduced into writing and is Ex. P.7. The Head Constable informed the S.H.O. Nissar Mohd. (PW. 9) who had gone to Banswara for some official work. The S.H.O. went to the police station and proceeded for village 'Nal' for investigation. He prepared the inquest memo Ex. P.5 and site plan Ex. P.6. The dead body was sent for postmortem examination to the Bagidora. Dr. Z.N. Ansari (PW.6) Medical Officer, Bagidora conducted the autopsy over the the dead body of Natha. The Doctor noted the following external injuries on the dead body of Natha:
(1) Minor contused wound and tearing of the lobule of the left-ear-caused by snatching of something worn in the left ear.
(2) One contused wound l'x1/2' over the rt. cheek two fingers below rt. ear.
(3) Constusrd and puncutured wound of 1/2' diameter over upper lip at the rt. corner puncturing the upper lip.
(4) Contused and punctured wound of 1' diamater over the lower lip rt. corner puncturing the lower lip with fracture of the mandible (lower jaw).
(5) Contusion 3/4' x1/2' over the neck front.
(6) Swelling ever the whole of the neck posterior side.
(7) Contusion and swelling over back of 3' diameter rt. side.
(8) Contusion 1' x 1' over the back-left scapular area.
3. On dissection of the dead body the Doctor observed as under: Cranium and Spinal Cords:
7th Cervical vertebrae was found fractured, Membranes Brain and Special Cord were found congested.
9th and 10th ribs were found fractured. Heart was empty.
Mandibular bone was fractured in the middle. The stomach was empty and contained gases. Small intestines contained digested creamy material and gases. Large intestines contained stool and gases. Bladder was found empty.
4. The post mortem examination report is Ex. P.3. In the opinion of the Doctor the cause of death was 'syncope' (Circulatory failure) caused shock consequent to external injuries noted above. The duration of death was 8 to 10 hours after the last meal and 40 to 48 hours before the postmortem examination. The fracture of the 7th Cervical Vertebrae was individually sufficient in the ordinary course of nature to cause death. Other injuries individually or collectively were not sufficient to cause death. External injury No. 6 is the corresponding injury of the fracture of the cervical vertebrae. This injury can be caused by a lathi. On October 6, 1976 the same Doctor examined Poonja and found following injuries on his person. All the injuries were simple in nature and caused by hard blunt object. The duration of the injuries was 48 to 60 hours.
5. The four appellants were arrested by the S.H.O. on October 12, 1976 vide memos Ex, P. 9,10,11 and 12. On the information furnished by Roopa and Kamji axes were recovered and in pursuance of the information furnished by Tejiya and Laleng lathis were recovered. The assailant Rajia was absconding therefore, chargesheet against the four appellants only was filed in the Court of Munsif and Judicial Magistrate, Kushalgarh. The learned Magistrate, findings prima facie case exclusively triable by the Court of Sessions, committed the appellants to the Court of Sessions Judge to stand their trial there.
6. The learned Sessions Judge, charge sheeted the appellants for the offence under Sections 147 and 302/149 of the Indian Penal Code and recorded their pleas. All of them denied the indictments and claimed to be tried. The prosecution examined nine witnesses in all to substantiate its case. In their state-aments under Section 313 of the Criminal Procedure Code the appellants totally denied the allegations levelled against them and stated that because of enmity they have been implicated in a false case. Tejiya and Laleng stated that Nat ha has previously instituted a false case against them and as they had been acquitted this case has been instituted. No defence witness was examined. The learned trial Judge believed the prosecution story about the four appellants and one Rajia giving a beating to Natha. However, in view of the nature of the injuries, the learned Judge was of the opinion that no injury by any sharp weapon could be provided. The learned Judge, further opined that only one injury was sufficient in the ordinary course of nature to cause death and therefore, in view of the nature of the injuries it was held that the intention of the assailants could not he to commit the murder of Nath, rather they only wanted to give a severe beating to him. In view of that finding, the learned Judge held the assailants guilty only for the offences under Sections 325 read with 149 and 147 I.P.C. and passed the judgment under appeal.
7. The learned Counsel for the appellants has assailed the findings of the learned trial Judge on the ground that prosecution case rests on the testimony of solitary witness Poonja (P.W. 4) who is not a witness of sterling worth. The point raised to criticise the witness is his unnatural conduct in not telling any body about the incident in the night and remaining quiet till the arrival of the police on the next day. The prosecution version about the dying declaration by Natha before his father, brother and wife has been assailed by the learned Counsel for the appellants on the ground that Natha must have died instantanuously on receving the injuries on the neck and therefore, there could not be any occasion for him to narrate the incident to his family members who must have taken sometime in reaching near him. The learned Counsel for the appellants stressed that the probable story appears to be that Poonja might have picked up some quarrel with Natha and after giving a beating to him might have run away to his house. That, becuse of the inmical relation with the deceased and the appellants Poonja ingenuously implicated the appellants who were inimical to the deceased so that any body may believe the story given by him.
8. The learned Public Prosecuter controverting these contentions submitted that Poonja had sustained injuries in the incident and therefore, his presence stands proved. About the dying declaration the contention of the learned Public Prosector is that the Doctor has stated that there was possibility of Natha remaining conscious for 10 or 15 minutes after sustaining injuries & during that period he could have spoken.
9. The prosecution has led direct as well as circunstantial evidence in the case. The direct evidence is that of Poonja (P.W.4). The circunstantial evidence is the dying declaration and the recovery of the weapons in pursuance of the information furnished by the appellants.
10. So far as the second circumstance about the recovery of weapons is concerned, the leraned Judge has not considered it to be as an incriminate circumstance and rightly so, because there is no evidence to connect the weapon with the commission of the crime.
11. When the prosecution case rests on the testimony of a solitary witness, Courts are to be very vigilant in scrutinising his evidence. In the present case, conduct of Poonja (P.W. 4) in not informing at the house of Natha in the night on the face of it appears to be unnatural, but on carefuly scrutiny of his statement, the explanation for this conduct is satisfactory. P.W.5 Roopji has supported Poonja so the extent that he was with Natha that Night. Roopji has stated that way adjacent to his field leads from Nal to Kalinjara. That, in the night when he had gone to bring stick from his field he saw Poonja and Natha going towards 'Nal'. That, after taking the stick he went to his thrashing ground and became busy. According to the witness, after about two hours he heard some cry but could not recognise the voice. That sometime thereafter Lokhma and Khatu went to him and informed that Natha has been murdered and was lying bleending from his injuries. Poonja has stated about his accompaying Natha from the precincts of `Dhimbn' and 'Nal', he has named the four appellants and Rajia as the assailants. That witness has stated about the threat given to him by the assailants in case he would disclose the fact to any body. According to the witness, Natha had raised a cry but out of fear, no body came and the accused were crying that they would kill him if any body would go there. The witness further stated that he did not run at the initial stage but when the assadants hid told him that in case he would run away and raise a cry, he would be killed, so he took the heels. The witness has given the explanation for his keeping quiet. For the night by statting that as he was given a threat by the accused he did not tell about the incident to any body in the night.
12. It is relevant to observe that the learned trial Judge has appended a note at the bottom of the statement of the witness about the witness impressing him and answering the question in straightforward manner. Demearour of a witness before the trial Court is an important factor throwing light on the veracity of the witness Corroboration to the statement of Poonja is found in the medical evidence also. As stated earlier, Doctor Z.N. Ansari (PW 6), had examined him and noted injuries on his person.
13. The learned Counsel for the appellants submitted that even if it is believed that Poonja was there with the deceased at the time of the initial beating, because of his running away from there, his testimony about all the four appellants and one more viz. Rajia giving a beating can not be taken to be true. There is force in the argument. This point has been given due consideration by the learned trial Judge. It is for this reason that injury No. 6 which proved fatal was not attributed to any particular person and all the accused were held vicariously liable far the injuries caused to the deceased with the aid of Section 149 of Indian Penal Code.
14. Khatu (PW 2) brother of the deceased has statted about Natha stating about Poonja being with him at the time of occurrence, Mr. Chaudahry has empahsised that emission of Poonji's name in the first information report as an eye witness throws doubt on the testimony of Khatu as well as of Poonja. The learned trial Judge has discussed this point also and observed that the possibility of not properly hearing and understanding all that the deceased had uttered by ail the persons standing near him at the time, cannot be ruled out. The omission of the name of Poonja in the first information report in itself is not sufficient to discard his testimony, which put to other checks available on record, has proved to be worthy of credence. There is no reason to disbelieve the medical evidence regarding the injuries sustained by him at the time of the alleged incident.
15. It has been suggested to Poonja that he had given a beating to Natha. The witness denied the suggestion. Similar suggestion was made t.) Roopji that because of Natha snatching the land of Poonja's father, there was quarrel between them The witness denied that suggestion, and stated that when he had seen Natha and Poonja passing on the road near his field they were talking with each other and were not quarreling. Simply because, out of fear, Poonja did not inform any body in the night, it cannot be said that he was the author of the injuries sustained by Natha. The learned trial Judge has, therefore, rightly placed reliance on the testimony of Poonja
16. There are three witnesses to the dying declaration made by Natha. The learned Counsel for the appellant had laid stress upon the statement of the Doctor Ansari that a person receiving the injury on the peck mentioned in the post mortem examination report should die instantaneously. He has of course admitted that the fracture of the 7th vertebrae would cause damage to the brain and generally immediately the person will become unconscious and die. It is pertinent to note that the Doctor has also stated that, in exceptional cases he may survive for about fifteen minutes and in those fife(sic) n minutes he can speak and in that period he survives he can give rational replies but his speech will not be clear and will be difficult to understand.
17. The learned Counsel for the appellants has emphatically urged that the part of the dying declaration relating to the weapons used by the assailants has been disbelieved by the trial court and therefore, the part of the dying declaration regarding the mines of the assailants should have also been discarded. The learned trial Judge in view of the medical evidence that the speech will not be clear his observed that the narration about the weapons and the way in which they were used, might not have been properly under stood by the three witnesses to the dying declaration.
18. Mr. Choudhary has also attacked the prosecution version about the dying declaration on the ground that it could not be possible for the family members to rush to the site within 15 minutes even if the medical opinion about the possibility of Natha surviving for about fifteen minutes is taken to be true.
19. Dalji (PW. 1), father of the deceased has stated that his house was at a distance of 200 or 300 pawandas from the place of occurrence. In the quiet atmosphere of the night it is not diffiult for a person to hear the cry from such a distance. One can easily cover that distance within a few minutes and therefore, there is nothing to doubt the testimony of the witnesses that when they rushed to the place of occurrence and at the time Natha was in a position to narrate the incident to them.
20. From the above discussion, it is evident that the learned trial Judge has appreciated the evidence in its proper perspective and has arrived at a correct conclusion that the appellants along with one Rajia had formed an unlawful assembly and in pursuance of the common object of the same caused injuries to deceased Natha.
21. So far as the sentence is concerned, in view of the facts and circumstances of the case, that is the nature of the injuries, the young age of the assailants and the matter relating to six years back, a lenient view is called for.
22. Consequently, the appeal is partly allowed and the conviction of the appellants for the aforesaid offence is maintained. Their sentences of six months R.I. for the offence under Section 147 IPC are maintained. The sentences for the offence under Section 325/149 IPC are reduced to a period of three years RI The order for the sentence on both the counts to run concurrently is maintained. The appellants are on bail. The Chief Judicial Magistrate Banswara, is directed to effect the arrest of the appellants by issuing warrants of arrest against them and send them to custody to suffer the sentences awarded to them.