Milap Chand Jain, J.
1. These two appeals : one by the accused Gopi through jail and the other by the accused Gopi, Pratap and Nanda are directed against the judgment dated March 24, 1975 passed by the Sessions Judge, Pratapgarh whereby the accused appellant Gopi was convicted of the offence under Sections 302 and 447 IPC and he was sentenced to imprisonment for life on the first count and to 3 months 'rigorous imprisonment on the second count and to pay a fine of Rs. 100/-, in default to undergo 15 days' rigorous imprisonment. The accused-appellants Pratap and Nanda were convicted of the offences under ss. 325, 324 and 447 IPC and each one of them was sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 200/-, in default to undergo two months' rigorous imprisonment on the first count; and 4 months' rigorous imprisonment and to pay a fine of Rs. 100/-, in default to undergo 15 days' rigorous imprisonment on the second count and 3 months' rigorous imprisonment and a fine of Rs. 100/-, in default to under 15 days' rigorous imprisonment on the third count. All the sentences were ordered to run concurrently.
2. The other accused Uda was admonished after holding him guilty of the offence under Section 323 IPC and the remaining two accused person, viz., Dhanni and Kanku were acquitted of the offences with which they were charged.
3. The investigation in this case stated on the basis of the report lodged by Pratap son of Bhura resident of Salera on July 8, 1973 at 7.30 p.m. where in it has been alleged that the occurrence took place on that very day at about 2 p.m. According to the prosecution, the land of the complainant party and the accused party are adjacent to each other. According to the complainant party, a strip of land which was actually the part of the complainant party's land was shown by the accused party and in respect of which, protest was made by Pratap son of Bhura. At that time, his son Nana, his nephew Lehru and his daughter Ratti were present there and they started sowing ground nuts in their field. When objection was raised, it is alleged that Gopi, Uda, Pratap and Nanda armed with axe and sticks opened an attack. Pratap and Gopi were armed with axe and Uda and Nanda were armed with sticks. The axe blow was inflicted on the head of Pratap and further blows were inflicted on his hands. Injuries were also inflicted on Nana and Lehru. It is alleged that Ratti then ran away from the spot and brought Ganesh, the brother of Pratap son of Bhura and Moti on the scene of occurrence. Ganesh and Moti intervened but they were also inflicted blows with lathies and axe. Accused Gopi inflicted axe blow on the head of Ganesh and the accused Pratap inflicted axe blow on Gopi. Accused Uda and Nanda also inflicted blows on Ganesh and Moti. A role has also been assigned to the wife of Gopi (Mst. Kanku) and also to Dhani who is daughter of the accused Pratap. Chhoga Gujar, Hira Jat, Madhu Jat and others of the village Saleta came there and the injured persons were removed in a bullock cart to Salera. Ganesh succumbed to his injuries. A case under Sections 302, 307, 174, 149 and 148 IPC was registered.
4. It may be stated that counter case was lodged against the members of the complainant party on the report of Gopi son of Uda Gujar. That report is Ex. D. 14. It was lodged on that very day at 6 pm. The version of the accused-party which is complainant party in that case is that they were inflicted blows and the members of the complainant party in this case came armed with axe and lathies and in that occurrence, Gopi, Pratap and Uda received injuries. Gopi received four injuries, out of which, three were contusions and one was lacerated wound on scalp frontal region. Uda received two injuries : one lacerated wound on occipital region and the other lacerated wound on left shoulder. As a result of these injuries, he sustained fractures of the base of the left acromin with multiple fragements. The fracture was of the Glenoid cavity. Pratap received as many as 9 injuries and 9th injury was multiple small contusions. 7 injuries were bruises and contusions and two injuries were lacerated wounds; one on the frontal region and the other on the forearm. The complainant party in that case came forward with a story that the strip of land which is said to be in dispute was in their possession as it was demarcated in their favour.
5. After usual investigation, both the parties were prosecuted and both the cases were sent up for trial to the Sessions Judge, Pratapgarh. Both the cases were tried and separate evidence was recorded in both the cases but the learned Sessions Judge proceeded to decide both the Sessions cases by a common judgment. However, he enumerated the evidence which was placed on record by the parties in each case but the consideration of both the cases in a common judgment, in our opinion, was not proper. The two cases should have been decided separately by two separate judgments.
6. It may be stated that in the case in hand, the accused Gopi was charged of the offences under Sections 309, 302/149, 148, 147, 307 and 447 IPC and the other remaining accused-persons were charged of the offences under Sections 302/149, 148, 147, 307 and 447, IPC. All the accused-persons, however, pleaded not guilty to the charges and they claimed to be tried. The present-appellants were accused in Sessions case No. 36 of 1974. In this sessions case, as many as 19 witnesses were examined by the prosecution. The statements of the accused-persons were recorded in which they denied the prosecution case and pleaded the story of their counter case. Accused Pratap son of Uda appeared as witness as DW 2. The learned Sessions Judge, after hearing the arguments, recorded a finding that there was a free fight between the parties. He however, acquitted the members of the complainant party in the counter case and recorded the conviction of the appellants and also of the accused Uda as stated above and sentenced them as aforesaid. Dissatisfied with their conviction, the present appeal has been filed.
7. We have heard Mr. Niranjan Gaur, learned counsel for the accused appellants and Dr. S.S. Bhandawat, learned Public Prosecutor for the State.
8. The main question in the present appeal is as to whether the appellant Gopi has been rightly convicted for the offence under Section 302 IPC. Mr. Niranjan Gaur, learned counsel for the appellants submitted that there was no intention on the part of Gopi to kill Ganesh who had appeared at the scene of occurrence afterwards when being brought by Mst. Ratti. According to the prosecution, accused Gopi was armed with axe but there is no incised wound injury attributed to the appellant Gopi resulting into his (Ganesh) death. According to the post-mortem examination report, the fatal blow was contusion on the left temporal region, as a result thereof, fracture on left parietal region occurred extending over the top of the skull to the right parietal region. The consequences of this injury was sub-dural haemorrhage extending over the top of the brain. From the description of this injury, it would appear that it was not caused by sharp weapon. The other injuries were in the nature contusions and bruise : one on the left arm, other is on the right occipital region and the third is on the back lower part Mr. Niranjan Gaur, learned counsel for the appellants submitted that the use of the weapons from the blunt side manifests the intention of the author of the injuries, which shows that accused Gopi never intended to use the weapon from the sharp side and as such, he had no intention to cause the death of the deceased. Mr. Gaur, learned counsel for the appellant also pointed out that had there been any intention to cause the death, then those who were injured earlier, they could have been done to death but the injuries on the person of the other injured persons from the complainant side do not make out such a case and on that basis also, the intention to kill stands negatived. From the side of the complainant party, four persons received injuries. Lehru received two injuries : one incised wound on the left parietal region and the other contusion. The incised injury was simple where as the contusion on the right wrist dorsum which is attributed to Uda is a grievous one. Nana had one incised wound on the scalp which was a simple injury. Moti had two injuries : one contusion on the left temporal region and the other incised wound on the right forearm. Both were simple. Pratap had 5 injuries out of which three were abrasions, one was incised wound on fore head, which is simple in nature and one is tenderness at left lunar region. Thus, the injured persons who received injuries first in point of time as against Ganesh, there were no grievous injuries on any vital part of the body. Mr. Gaur, submitted that with out going into the question of deciding right to possess the disputed strip of land, it would be apparent that the appellants and particularly the appellant Gopi had no intention to cause the death of any one and much less to cause the death of Ganesh, who appeared at the scene of occurrence subsequently.
9. We find force in the above submission of Mr. Gaur. The circumstances of the case, in our opinion, clearly negative the murderous design on the accused Gopi. When the four injured persons were not availed in a deadly manner, where was the question of availing Ganesh in such a manner deliberately and further most of the other injuries on the person of Ganesh are suggestive as to by what side of the axe the victim was availed. Admittedly, the victim was not availed by the sharp side of the axe. So, it can be said positively that assailant Gopi had no intention to cause the death of the deceased Ganesh, but it appears that the axe was wielded with sufficient force and so, he had the knowledge that by his act of wielding the axe with force, the death is likely to be caused. Viewed in this manner, in our opinion, the offence on the part of the accused Gopi does not travel beyond Section 304, Part II, IPC. We accordingly hold that accused Gopi inflicted axe blow with the knowledge that by his act, death is likely to be caused and consequently, he is guilty of the offence under Section 304, Part II, IPC and the appellant Gopi deserves to be acquitted of the offence under Section 302 IPC. He has remained in custody from July 2t, 1973 to August 1978, i.e., for a period of more than 5 years. It would be proper to sentence him for the said offence to the period of his custody.
10. So far as the accused appellant Pratap and Nanda are concerned, they have been wrongly convicted of the offence under Section 325 IPC. Admittedly, they were armed with axe and they have used the axe from sharp side for which they have been held guilty of the offence under Section 324 IPC. This aspect of the case has not been examined properly by the learned Sessions Judge. Unless a clear finding is recorded that these two accused persons used the axes both from the blunt and sharp side, conviction for the offences under Sections 325 and 324 IPC cannot be entered into. Such a finding, in our opinion cannot be arrived at on the basis of the evidence on record and so, they can only be held guilty of the offence under Section 324 IPC and they deserve to be acquitted of the offence under Section 325 IPC. The conviction for the offence under Section 447 IPC has not been challenged before us.
11. In the result, the appeal is partly allowed. The conviction of the appellant Gopi for the offence under Section 302 IPC and of the appellant Pratap and Nanda of the offence under Section 325 IPC are set aside and they are acquitted of these offences. The appellant Gopi is convicted of the offence under Section 304, Part II, IPC and is sentenced to the period of his custody. His sentence for the offence under Section 447 IPC is maintained. His sentences shall stand set off as he has remained in custody for a period of more than 5 years. He is already on bail and so, he need not surrender and his bail bonds are discharged.
12. The conviction of the appellants Pratap and Nanda for the offences under Sections 324 and 447 IPC are maintained and their sentences are reduced for each of the offences to the period of their custody. Both these appellants have remained in custody from July 21, 1973 to September 8, 1973. On both the counts, their sentences are reduced to their custody, which shall run concurrently. They are already on bail and so, they need not surrender. Their bail bonds are discharged.