A.S. Godara, J.@mdashBoth these appeals arise out of impugned judgment and order dated 28-7-78 passed by the learned Sessions Judge, Merta in Sessions Case No. 1/1977. The appellants Hanuman Singh, Mangi Lal, Suwa Lal and Bheru Singh, in Appeal No. 292/78 while being acquitted of offences under Sections 302/34 and 120B, I.P.C., instead, were convicted u/s 304 Pt. I read with Section 34, I.P.C. and were awarded eight years'' R.I. and a fine of Rs. 4000/- and, in default of payment of fine, six months'' R. I. Being aggrieved there against, the appellants have preferred this appeal against their conviction and order of sentence. However, co-accused of the present accused-appellants, Dayal Ram, who was also challaned arid charged with commission of offences under Sections 302/109 and 120B, I.P.C., was acquitted and hence the State by leave has preferred Appeal No. 490/78 against Dayal Ram whereas the accused-appellants of Appeal No. 292/78 have also been appealed against on account of their acquittal from the offences under Sections 302/34 and 120B, I.P.C. Since both these appeals arise out of one and same judgment and, therefore, the same are being disposed of by this common judgment.
2. Birbal Ram (P.W. 2) who is brother of Tilok (P.W. 12) and chhoga Ram (since deceased). They are residents of village Barsuna and so also the accused-persons. On the night intervening 24th and 25th September, 1976 at about 11.30 p.m., on learning of Chhoga Ram''s having been brought to the Government Hospital, Nagaur in an injured and unconscious condition, Bheem Singh (P.W. 10), A.S.I., Police Station, Kotwali, Nagaur reached the hospital whereat Birbal Ram (P.W. 2) handed over Ex. P. 1 written report to Bheem Singh alleging therein that on 24-9-76 at about 3 P.M. while his brother Chhoga Ram was returning home from his field, in the way, passing from the ''angore'' (catchment area) of ''nadi'' (village water reservoir), accused-appellants Hanuman Singh, Bheru Singh, Mangi Lal and Sukha Ram ambushed him. Bheru Singh and Mangi Lal were armed with a ''pharsi'' and ''kassi'' while Hanuman Singh and Sukha Ram were each armed with a lathi. They started assaulting Chhoga Ram conjointly with the weapons with which they were armed. He along with his brother Tilok (P.W. 12) was working in their field situated nearby. They rushed towards the place of occurrence from the field and, while reaching nearby, they challenged the assailants on which Chhoga Ram was left at the site of occurrence and the assailants escaped from there. Chhoga Ram became unconscious. He was brought to the hospital at Nagaur and the Medical Officer, after providing medical first aid, advised Chhoga Ram to be taken to the hospital at Jodhpur. Bheem Singh registered FIR on the basis of report Ex. P. 1 without regular number since the alleged occurrence took place within the territorial jurisdiction of Police Station of Khatu Badi and hence Ex. P. 1 along with the FIR so chalked out was forwarded to the Police Station, Khatu whereat Deewan Singh, S.H.O. (P.W. 13) registered a fresh FIR and started investigation. Since, by then, the injured Chhoga Ram had already been transferred from Nagaur hospital to the Mahatma Gandhi Hospital, Jodhpur on the same night. Accordingly, Deewan Singh also reached Jodhpur whereat Chhoga Ram was admitted as an indoor patient in an unconscious condition. He died on 25-9-76 at 6.25 P.M. and so his inquest report Ex. P. 10 was prepared by Deewan Singh. His blood stained clothes were also taken into custody vide Ex. P. 11.
3. Dr. R.K. Gehlot (P.W. 11) performed postmortem of the dead body of Chhoga Ram on 26-9-76 at 10.30 A.M. He found the following injuries on the dead body of Chhoga Ram :
1. Lacerated wound 3.0 cm x 0.5 cm x bone deep on right frontal region of the scalp posteriorly which was place obliquely starting from mid line extending laterally and anteriorly.
2. Lacerated, wound 4.0 cm x 1.0 cm x skin deep on the anterior aspect of left leg at upper one third.
3. Abrasion 7.0 cm x 1.0 cm on the medial aspect of left foot.
4. Abrasion 1.0 cm. x 1.0 cm on the anterior aspect of right leg at upper one third.
5. Abrasion 0.8 cm x 0.7 cm on the medial aspect of base of great toe.
6. 2 Abrasions in the left renal angle region the sizes being 1.8 cm x 0.5 cm and 1.0 cm x 0.5 cm.
7. There was haematoma present in the right temporalis muscle and underneath the same muscle. There was epidural haematoma 10.0 cm x 7.0 cm in size in the right parieto-temporal region.
4. The brain membranes were congested. There were the evidence of tracheostomy and venesection in the right ankle region. Remaining all the organs were found healthy.
5. The Medical Officer was of the opinion that the cause of death was coma as a result of head injury and all the injuries were ante-mortem in nature.
6. Deewan Singh (P.W. 13) inspected the alleged site of occurrence and prepared Ex. P. 12 and Ex. P. 13 site plans. The accused-persons were arrested during the course of investigation vide Ex. P. 14 to Ex. P. 18 arrest memos. He recovered three pieces of a broken lathi (Articles 4, 5, and 6) pursuant to information Ex. P.19 given by the accused Hanuman Singh vide Ex. P. 21. Similarly, on the information Ex. P.20 given by the accused Sukha Ram, the lathi (Article 7) was recovered vide Ex. P. 22 and it was suspected that the lathis/pieces of lathi recovered pursuant to disclosure statements of the accused-persons were stained with blood, all the articles so recovered were forwarded to the Rajasthan State Forensic Science Laboratory, Jaipur (for short ''the RSFSL, Jaipur) for chemical examination.
7. During the course of investigation, it also transpired that some litigation took place between the family of Chhoga Ram (deceased) on the one side and the accused-persons on the other. It also transpired, during the course of investigation, that since the accused (respondent) Dayal Ram was intimate friend of Hanuman Singh and Bheru Singh and so also that of the accused Suwa Lal and Sukha Ram and the accused Hanuman Singh and Bheru. Singh suspected involvement of Chhoga Ram in enticing away their cousin sister prior to this incident and the case registered on the basis of FIR on the basis of report of Bheru Singh against Chhoga Ram etc. did not result in prosecution of Chhoga Ram and his associates and hence Bheru Singh and Hanuman Singh were in search of opportune time and place to kill Chhoga Ram and, therefore, all the accused-persons hatched a criminal conspiracy and, in prosecution of the same, it was Dayal Ram who approached Chhoga Ram just before the incident, asking him to visit his house immediately thereafter and, as a result, after Dayal Ram had retired towards his house, Chhoga Ram was heading towards the house of Dayal Ram and, pursuant to criminal conspiracy, the accused-appellants, who were waiting for the arrival of Chhoga Ram at the place of occurrence, suddenly ambushed and assaulted Chhoga Ram.
8. On completion of investigation, a charge-sheet under Sections 302/34 and 302/109, I.P.C. was filed in the Court of Chief Judicial Magistrate, Nagaur, who in turn, committed the case to the Court of Session, Merta whereat the trial was completed.
9. The accused-appellants Hanuman Singh, Bheru Singh and Mangi Lal were charged under Sections 302/34 and 120B, I.P.C., Sukha Ram u/s 302/34, I.P.C. while the accused-respondent Dayal Ram was charged under Sections 302/34 and 120B, I.P.C. to which the accused-persons pleaded not guilty and claimed a trial.
10. The prosecution examined as many as 14 witnesses in addition to documentary evidence to be discussed at the relevant stage.
11. The accused-persons were examined u/s 313, Cr. P.C. They denied the occurrence itself and, instead, they pleaded alibi and examined as many as 12 witnesses in their defence.
12. The learned trial Judge, after hearing both sides, vide impugned judgment and order, holding that there was no reliable evidence for hatching up a criminal conspiracy with the accused-respondent Dayal Ram and the accused-appellants and hence Dayal Ram was acquitted of all the charges, as above, resulting in State Appeal No. 490/78.
13. As regards accused-appellants in Appeal No. 292/78, they were acquitted of offences under Sections 302/34 and 120B, I.P.C, as above, though convicted u/s 304, Pt. I, I.P.C. as aforementioned and hence they have also been appealed against. However, this Court did not grant leave to appeal against the impugned order of acquittal of accused-respondent Dayal Ram and hence his case does not fall for any consideration in these appeals. However, as regards accused-respondents who are also the appellants in Appeal No. 292/78, leave as prayed for to file appeal against their acquittal, as above, was granted.
14. We have heard the learned counsel for the accused-appellants who are also accused-respondents in Appeal No. 490/78 as well as the learned P.P. against acquittal as well as against the accused-appellants on behalf of the State and have also gone through the impugned judgment as well as the record of the trial Court and we have given our considerate thought to the same.
15. The learned P.P., in Appeal No. 490/78, while taking through the evidence of P.W. 2 Birbal Ram and P.W. 12 Tilok Ram deposing as eye-witnesses and so also P.W. 1 Chunna Ram and P.W. 3 Dharma Ram who also stated that they also happened to pass from the place of the occurrence and had seen the assailants assaulting Chhoga Ram and escaping from there, along with medical evidence as well as the circumstantial evidence, submitted that the learned Sessions Judge failed to appreciate prosecution''s evidence correctly and in its right perspective and, instead, taking an erroneous view of the evidence which appears to be unreasonable and against the evidence on record that no offence u/s 302, I.P.C. was found to have been committed and, instead, the accused-respondents have been held liable u/s 304, Pt. I, I.P.C. read with Section 34, I.P.C. There is evidence of motive for the accused-respondents to have killed Chhoga Ram and the medical evidence also shows that there were not less than seven injuries found on the dead body of Chhoga Ram and the head injury resulted in his death and, therefore, it was an intentional murder specially when P.W. 11 Dr. R. K. Gehlot has clearly opined that the head injury received by Chhoga Ram (deceased) was sufficient in the ordinary course of nature to cause death and, as a result, all the accused-respondents are liable to be convicted and sentenced u/s 302/34, I.P.C. simpliciter instead of u/s 304 Pt. I, read with Section 34, I.P.C, as has wrongly been done by the trial Court.
16. While opposing all these contentions of the learned P.P., the learned counsel for the accused-appellants Shri Doongar Singh, assailing the impugned judgment of conviction, further submitted that P.W. 2 Birbal, P.W. 12 Tilok are, admittedly, real brothers of the deceased Chhoga Ram. They were, admittedly, working in their field while Chhoga Ram is alleged to have left all alone as alleged in Ex. P. 1 report by P.W. 2 Birbal for his home and there was hardly any occasion for his both the brothers to have immediately followed him and so it is neither natural nor probable that both the real brothers were immediately following him and in case, if so assumed, they were following him, they could have immediately left in the company of Chhoga Ram or Chhoga Ram could have himself waited for a few minutes to leave their field in the company of his own brothers. Besides, Ex. P. 1 clearly omitted that it was at the instance of Dayal Ram accused that Chhoga Ram left alone towards the house of Dayal Ram. Besides, presence of P.W. 1 Chuna Ram and P.W. 3 Dharma Ram who are apparently chance witnesses at the scene of occurrence, though they have also not identified the accused-appellants, is also unnatural and unreliable. Therefore, his submission is that there is absence of trustworthy evidence involving the accused-appellants in the commission of the alleged offences.
17. Besides, his further submission is that Chhoga Ram (deceased) was attended by Dr. P. R. Joshi, Government Hospital, Nagaur providing first aid and, at whose instance, he was immediately shifted to Jodhpur whereat P.W.7 Pradeep Kumar Gupta attended him. It was P.W. 11 Dr. R. K. Gehlot who performed autopsy of the dead body of Chhoga Ram and he too omitted in Ex. P.9 post-mortem report that the head injury found on the dead body of Chhoga Ram was sufficient in the ordinary course of nature to cause death and so his submission is that since Bheru Singh and Mangi Lal are alleged to have been armed with deadly-cutting weapons like ''pharsi'' and ''kassi'' and there was absence of any injury having been caused with such weapons while Bheru Singh and Sukha Ram are alleged to have been armed with lathis and, in the opinion of the Medical Officer also, the injuries found on the dead body of Chhoga Ram could be caused by a weapon like lathi and, therefore, his further submission is that except the alleged injury No. 7 found on the head of Chhoga Ram, rest of all the injuries were not on any of the vital parts of the deceased and they were simple in nature and caused with a blunt weapon and in case there existed any criminal conspiracy to do Chhoga Ram with death and, resultantly, he was assaulted with deadly weapons, there could not have been any rhyme or reasons for non-infliction of any injury with deadly weapons alleged to be in possession of Bheru Singh and Mangi Lal accused-appellants and, therefore, his submission is that the act of the accused-appellants did not travel beyond the ambit of Section 304 Pt. II, I.P.C. and, consequently, their conviction u/s 304 Pt. I read with Section 34, I.P.C. is not sustainable.
18. He has also, alternatively, submitted that in absence of requisite intention or knowledge to cover the act of the accused-persons either by the offence of murder or homicidal not amounting to murder, there is absence of either common intention or pre-existing criminal conspiracy to kill Chhoga Ram and, consequently, in absence of proof of vicarious liability for either murder or homicidal death not amounting to murder and looking to the nature of the injuries except injury No. 7 alleged to have been proved fatal, a common intention for causing simple injury can be inferred and the vicarious liability of the accused-persons cannot travel beyond the periphery of Section 323, I.P.C. He relied upon the Division Bench decision of this Court reported in Dunga Ram v. State of Rajasthan 1996 Cr LR (Raj) 593 : 1996 Cri LJ 3672.
19. However, all these contentions have been vehemently opposed to by the learned P. P. on the basis of medical evidence as well as the ocular evidence of the witnesses relied upon by the trial Court, further submitting that in case the accused-respondents are not held to be liable for commission of murder of Chhoga Ram, at any cost, the findings of the learned trial Judge holding the accused-persons vicariously liable for commission of offence u/s 304, Pt. I read with Section 34, I.P.C. warrants no interference on whatsoever ground as agitated by the learned counsel for the appellants.
20. At the out set, we may observe that so far as Dayal Ram is concerned, though he was also challaned and tried along with the accused-appellants by the trial Court but, after his acquittal, this Court also did not find any merit in the application for leave to file appeal against the order of acquittal of Dayal Ram for the offences with which he was charged and, subsequently, resultant upon conclusion of the trial, acquitted thereof. However, as regards the charge of any prior criminal conspiracy having been entered into to commit murder of Chhoga Ram, though, in their statements before the Court, P.W. 2 Birbal Ram and P.W. 12 Tilok Ram whose interestedness is self-apparent, deposed that a little before the time of the alleged occurrence when Chhoga Ram was subjected to the assault. Dayal Ram also came to their field and he talked to Chhoga Ram who was asked to come to his house in the village but this finds complete omission in Ex. P. 1 report lodged by P.W. 2 Birbal on which FIR was registered. Since a written report was lodged by none but the alleged eye-witness of the occurrence and real brother of the deceased, P.W. 2 Birbal Ram and this factum of conspiracy is completely omitted there from and, not only this, further it is omitted in Ex. P.1 reported that Chhoga Ram (deceased) was going to the house of Dayal Ram and further that it was on the request and persuasion of Dayal Ram. Instead, it has been reported in Ex. P. 1 that Chhoga Ram was returning from his field to his house and not to that of Dayal Ram. Therefore, this case of conspiratorial act attributed to Dayal Ram is fatally omitted from Ex. P. 1.
21. Besides, from the evidence of P.W.2 Birbal and so also P.W. 12 Tilok, it does not appear that Dayal Ram had talked to Chhoga Ram and the conversation was audible to either of them. Had it been so, the same could not have been omitted from being mentioned in Ex. P. 1 report lodged before P.W. 10 Bheem Singh, A.S.I, by P.W. 2 Birbal Ram himself.
22. The prosecution examined P.W. 5 Ramuram who is the real uncle of P.W. 2 Birbal, P.W. 12 Tilok as well as deceased Chhoga Ram. He stated that on ''Amavasya'' of ''Aasoj'' preceding the incident at about 8 A.M., Dayal Ram, Hanuman Singh, Mangu Singh and Bheru Singh were seen sitting on the ''Chabutari'' of Naiks in the village. He heard Bheru Singh telling Dayal Ram that he could not perform the task which was entrusted to him since he could not fetch Chhoga Ram to which Dayal Ram replied that in case he could prevail upon, he would bring Chhoga. He admitted that the police examined him once or twice. The prosecution has made available Ex. D.2 and Ex. D.3 police statements of this witness. The same do not find mention that the aforesaid four accused-persons were sitting on the Chabutari of Naiks and that the aforesaid conversation took place between the accused Hanuman Singh and Dayal Ram to his hearing. He also did not state therein that this incident was of ''Amavasya''. He stated in these statements that the said accused-persons were standing near the ''Chabutari'' of Naiks and were talking to each other, whereas in his Court statement, it is stated that they were sitting on the ''Chabutari'' and talking, as above. Though he is real uncle of the deceased and he has stated that he could over hear the conversation that allegedly took place between Hanuman Singh and Dayal Ram and even he did not inform Chhoga Ram or any of his family members about the conspiracy so being hatched up by the accused-persons along with Dayal Ram. This conduct on the part of P.W. 5 Ramuram rendered his evidence wholly unreliable and, therefore, in our opinion too, the learned trial Judge did not commit any illegality or infirmity while disbelieving or discarding evidence of P.W. 5 Ramuram and so charge of pre-existence of criminal conspiracy involving Dayal Ram as well as the accused-appellants having been also not proved by the learned trial Judge, this finding does not run counter to the material and evidence on record and, consequently, this finding warrants no interference holding that the accused persons were rightly acquitted of this charge.
23. As a result of contentions as raised by the rival sides, we are required to consider whether: (a) Chhoga Ram was done to death violently; (b) the accused-appellants committed this act and (c) in case it is so, it was a case of homicidal death amounting to murder or homicidal death not amounting to murder or any other offence and the liability of the accused-appellants therefore.
24. As regards the violent death of Chhoga Ram, there is not much dispute from the side of the accused-appellants.
25. P.W. 2 Birbal Ram and P.W. 12 Tilok are real brothers of the deceased. Besides, P.W. 5 Ramuram is his uncle. They have stated about the injuries and consequential death of Chhoga Ram in a state of coma. Ex. P.1 report also corroborates the version of P.W. 2 Birbal. P.W. 10 Bheem Singh, A.S.I, who received Ex. P. 1 report from P.W. 21 Birbal Ram at the Government Hospital, Nagaur and so also P.W. 6 Dr. P. R. Joshi, Medical Jurist, Nagaur who attended and provided medical first aid to Chhoga Ram at Nagaur, have clearly testified that Chhoga Ram had been found to be so hurt and having multiple injuries which too resulted in his unconsciousness. As also stated by the aforesaid witnesses, Chhoga Ram was immediately referred to the M. G. Hospital, Jodhpur whereat, as deposed to by P.W. 7 Dr. P. K. Gupta working as House Surgeon at M. G. Hospital, Jodhpur, Chhoga Ram was brought to the hospital on 25-9-76 and admitted as an indoor patient in Surgical Ward for treatment of his head injury. As borne out of Ex. P. 4 B.H.T. and connected treatment records Ex. P.5, Ex. P. 6 and Ex. P. 7, he was treated for the head injury and a minor operation was also conducted to facilitate respiration of the patient. However, on 25-9-76 at 6.25 p.m., as borne out of Ex. P.8 death certificate, Chhoga Ram breathed his last as an indoor patient. P.W. 11 Dr. R. K. Gehlot, being the Medical Jurist, as already detailed hereinbefore, after death of the deceased, on the next following day, at 10.30 a.m. conducted autopsy on the dead body of Chhoga Ram and he noticed aforesaid seven injuries and found that it was injury No. 7 inflicted on the skull of the deceased which was the direct cause of death of the deceased and that the same was sufficient in the ordinary course of nature to cause death. He prepared Ex. P. 9 post-mortem report.
26. P.W. 13 Deewan Singh, Investigating Officer, who prepared Ex. P. 10 inquest report of the dead body of deceased Chhoga Ram also corroborated the factum of receiving multiple injuries as above by blunt weapons in the alleged incident and, lastly, being in a state of coma and unconsciousness, having died. This is not disputed by the accused-appellants as well.
27. On the basis of aforesaid evidence and so also rightly held by the learned trial Judge, the deceased Chhoga Ram had died a violent and unnatural death.
28. The next crucial question that comes for consideration is as to whether it was act of the accused-persons either individually or collectively that resulted in the death of Chhoga Ram.
29. The prosecution, in order to bring home charge to the accused-appellants, has adduced ocular as well as circumstantial evidence including the medical evidence.
30. It is worthwhile to mention here that, as per the prosecution story, aforesaid four accused-appellants were involved in commission of the offences and, during the pendency of these appeals, both Hanuman Singh as well as Bheru Singh accused-appellants expired and hence the said State Appeal and so the one filed by both these accused-appellants (since deceased) have abated.
31. Now, firstly we deal with the ocular evidence of P.W. 2 Birbal and P.W. 12 Tilok Ram who have claimed and examined as eyewitnesses of the occurrence. As already observed before, both Birbal and Tilok Ram are real brothers of the deceased Chhoga Ram. Apparently, they are close relations of the deceased and are, apparently, interested in the deceased as well. However, merely because they are related to and are also interested in the deceased Chhoga Ram, that by itself, cannot be a ground for rejection or discarding their ocular testimony in case the same is otherwise truthful. However, looking to the relationship and interestedness of these witnesses in the deceased, the Court has to evaluate and appraise their evidence exercising checks and counter checks to find out whether the evidence tendered by both these witnesses claiming to be eye-witnesses of the occurrence of truthful or not. In case the same withstands the test of truthfulness and trustworthiness, there cannot be any ground for still disbelieving or discarding their evidence.
32. P.W. 2 Birbal Ram as also supported by P.W. 12 Tilok Ram stated that they were working in their field along with Chhoga Ram (deceased). At about 3. P.M., Dayal Ram came to Chhoga Ram and told him that he should come to his house. Both of them have also stated that after a little while Chhoga Ram also left towards the house of Dayal Ram. They also followed Chhoga Ram and on reaching the ''Angore'' of the ''nadi'', he was ambushed by the accused Bheru Singh, Hanuman Singh, Sukha Ram and Mangi Lal. Hanuman Singh and Sukha Ram were armed with lathis while Bheru Singh and Mangi Lal had ''pharsi'' and a ''kassi'' each. Birbal Ram clearly stated that all the four accused-persons started assaulting Chhoga Ram with the weapons with which they were armed. Bheru Singh and Mangi Lal used reverse side of the ''pharsi'' and the axe while giving blows to Chhoga Ram. From the distance of about 40 to 50 ''paundas'', they challenged the assailants who left Chhoga Ram injured and lying on the ground and escaped from there. They found Chhoga Ram lying in a state of coma and unconsciousness. He had multiple injuries on his person. P.W. 12 Tilok Ram also supported this statement of P.W. 2 Birbal Ram. Both of them further stated that they lifted Chhoga Ram in injured and unconscious condition and left towards their house. In the way, Moti who is son of P.W. 12 Tilok Ram met them and he was sent for and returned with a bullock-cart. Chhoga Ram was carried to their house on the bullock-cart. They have also stated that, at the time of the occurrence, both P.W. 1 Chuna Ram and P.W. 3 Dharma Ram were also passing from nearby to the place of occurrence as are the statements of Chuna Ram and Dharma Ram as well, They have further stated, as also corroborated by P.W. 4 Prema Ram, that the injured was taken in a jeep of Prema Ram, to the Government Hospital, Nagaur and, subsequently, to M. G. Hospital, Jodhpur whereat he breathed his last and this statement is also supported by P.W. 4 Prema Ram though on other grounds he has been sought to be cross-examined by the prosecution itself.
33. P.W. 2 Birbal and P.W. 12 Tilok Ram have further stated that since cousin sister of the accused Bheru Singh and Hanuman Singh had left her house and disappeared and they aroused suspicion against Chhoga Ram that he had been instrumental in missing/disappearance of their cousin sister. A report was lodged with the police which resulted in filing of Final Report (unoccurred) and contrarily prosecution of the first informant Bheru Singh u/s 182, I.P.C. Both Sukha Ram as well as Mangi Lal were also inimical to the witnesses and Chhoga Ram since they had also prosecuted both Chhoga Ram and Birbal in the Court of Addl. Sessions Judge, Bikaner where from they were acquitted. It is further alleged that Dayal Ram had borrowed a sum of Rs. 30/- from Chhoga Ram which he subsequently refused to repay and so a dispute arose between the deceased and the accused Dayal Ram who was friendly with his co-accused persons.
34. As regards these witnesses, the learned counsel for the accused-appellants, while carrying through the statements of these witnesses as well as their previously recorded police statements and in addition to the statements of PW-1 Chuna Ram and PW-3 Dharma Ram, submitted that looking to the unfortunate and improbable conduct of both the brothers of the deceased and so also that of Chuna Ram and Dharma Ram, they could not have seen the actual occurrence and the so called motive has also been falsely attributed and, at the same time, since animosity is alleged to have motivated the accused-persons to assault Chhoga Ram fatally, there was motive for both sides to have either falsely involved all the accused-persons or some of them while, at the same time, there could have been a motive for the accused-persons to take revenge from the deceased and to have fatally assaulted him. Contrarily, the prosecution witnesses especially PW-2 Birbal Ram and PW-12 Tilok Ram also similarly deposed against the accused-persons.
35. It may also be taken note of the fact that the motive is not an ingredient of the offences alleged against the accused-appellants but, however, in case a motive is proved against the accused-persons for commission of the alleged offence, the same further lends extra strength to enable the Court to place reliance on the evidence of the prosecution. So far as the factum of animosity and previous litigations between the parties is concerned, as stated by PW-2 Birbal Ram and PW-12 Tilok Ram and so also corroborated by Ex. P.25 FIR lodged by the accused Bheru Singh (since deceased) as well as FIR Ex, P. 23 lodged by accused Mangi Lal against PW-5 Ramuram, PW-2 Birbal Ram, Chhoga Ram (deceased) and Aaidan Ram who is also brother of the deceased, there is no difficulty to hold that there was some bad blood created between the parties and so there were also litigations. However, Ex. P. 23 FIR relates back to the incident alleged to have occupied on 20-9-1969 and the occurrence of FIR Ex. P. 25 is alleged to have taken place on 23-12-1973 and so both these incidents were old ones.
36. As regards Ex. P. 1 report on which FIR is based, there was complete omission of allegations and involvement of Dayal Ram and any conspiracy having been so entered into. No satisfactory explanation therefore has been given in Ex. P. 1 itself. Besides, both PW-2 Birbal Ram and PW-12 Tilok Ram have stated that Chhoga Ram had left his field for his house and, in the way, he was ambushed and assaulted by the said four accused-appellants and now a new story has been invented that it was Dayal Ram (since acquitted) who had approached Chhoga Ram in his field and invited him to his house. In case the parties were inimical and Dayal Ram belonged to and was friendly and in the company of the accused-persons, Chhoga Ram could not have taken any time to find out the reason behind invitation of Dayal Ram. Similarly, if some foul was smelt, Chhoga Ram could not have left for the house of Dayal Ram as are the statements of his both brothers claiming to be eye-witnesses of the occurrence. Besides, it would have been natural conduct on the part of PW-2 Birbal Ram Tilok Ram not to have allowed Chhoga Ram to travel and go to the house of Dayal Ram alone and hence their natural conduct would have been to accompany Chhoga Ram from their field towards the house of Dayal Ram. However, instead of leaving for the house of Dayal Ram, it is alleged to Ex. P. 1 itself by PW-2 Birbal Ram that the deceased Chhoga Ram was going towards his house and in the way he was ambushed and so assaulted. Even if Chhoga Ram was heading towards his house, when both Birbal Ram as well as Tilok Ram claimed that they were following Chhoga Ram at a distance of about 40-50 pounds, there could not have been any acceptable reason for their travelling separately. Chhoga Ram could have very well waited for few more minutes in the field to enable Birbal Ram and Tilok Ram to accompany him to their house and it was neither done by the deceased Choga Ram nor by both the so called eye-witnesses. Besides, this fact finding omission in Ex. P. 1 report itself and so also the omission of presence or passing from the scene of occurrence of PW-1 Chuna Ram and PW-3 Dharma Ram, the testimony of Chuna Ram and Dharma Ram is not fully free from suspicion. The conduct of both these witnesses who also alleged to be eyewitnesses of the occurrence though, in the same breath, admitting that they did not know the identity of the assailants of Chhoga Ram. They did not accompany Birbal Ram and Tilok Ram in taking Chhoga Ram injured towards his house. They did not stop there. Since their names and their presence find complete omission in Ex.P. 1 report lodged by PW-2 Birbal Ram and, in view of these circumstances, there being no acceptable ground which led both these witnesses to pass from the site of the occurrence. As a result, omission of the names of Chuna Ram and Dharma Ram from Ex. P. 1 by none but PW-2 Birbal is equally fatal. Both Birbal Rani as well as Tilok Ram claimed that they saw Chuna Ram and Dharma Ram passing from the site of occurrence and, therefore, when the report was lodged by Birbal Ram and Tilok Ram was also present by his side, there was no acceptable ground or reason or even excuse for PW-2 Birbal Ram to have omitted presence of these witnesses in the report itself. Therefore, after going through the statements of PW-2 Birbal Ram and PW-12 Tilok Ram as well as those of PW-1 Chuna Ram and PW-3 Dharma Ram, after a careful evaluation and appraisal of the evidence, we do not find the statements of PW-1 Chuna Ram and PW-3 Dharma Ram worth credence and trustworthiness and the learned trial Judge did not appreciate their evidence correctly and the same is liable to be discarded.
37. As regards testimony of PW-2 Birbal Ram and PW-12 Tilok Ram, the prosecution has relied on medical as well as circumstantial evidence as well for corroboration of their statements. Therefore, looking to the circumstances and the field whereat both these witnesses along with their brother Chhoga Ram (since deceased) were working and the incident also did not take place at a far off place and, instead, it is alleged to have occurred in between the village and the field of the witnesses and the deceased.
38. The Investigating Officer visited the site twice and prepared Ex. P. 12 and Ex. P. 13 site plans and he has clearly observed in the site plans that with a view to appreciate and find out the probabilities or improbabilities in regard to conduct of PW-2 Birbal Ram and PW-12 Tilok Ram as to whether the place of occurrence was visible from the field of PW-2 Birbal Ram and PW-12 Tilok Ram, PW-13 Deewan Singh himself went to the site and found that the place of occurrence was visible from the field of the deceased and his brother-witnesses. Therefore, though there are some omissions and discrepancies in the evidence of these witnesses, however, the same are not enough to visit the evidence of these witnesses found to be eye-witnesses of the occurrence with any suspicion and, instead, it, only warrants corroboration in material particulars.
39. As regards the involvement of the four accused-persons in the assault and, their''s being armed with a ''pharsi,'' ''kassi'' and lathis, the prosecution story, on this count, has not been changed nor the same has changed the genesis of the origin of the occurrence and, in these circumstances, in respect of material particulars about the victim, crime and the perpetrators of crime, there is a substantial coverage of the allegations in Ex. P. 1 report as brought forward by the prosecution against the accused-appellants and hence so far as the ocular evidence of the aforesaid two witnesses-PW-2 Birbal Ram and PW-12 Tilok Ram is concerned, the same lends corroboration to their statements.
40. It may also be observed that the principle of falsus in uno Falsus in Omnibus is not accepted in criminal jurisprudence since it is neither a sound rule of law nor a rule of practice and, in such a circumstance, the Court has to analyse the prosecution evidence carefully and on such analysis if the evidence is found to be consistent and reliable the Court can accept the same with regard to the other accused persons and hold them guilty, even though the Court is unable to rely fully on the prosecution evidence with regard to some of the accused persons
41. This ocular testimony of both the witnesses is further substantially corroborated by the medical evidence. PW-11 Dr. R.K. Gehlot, as already detailed hereinbefore, confirmed existence of as many as seven injuries on the dead body of Chhoga Ram. He further stated that it was only the head injury resulting in epidural haematoma resulting in bringing the injured (since deceased) Chhoga Ram to coma and consequential death in a state of coma and unconsciousness throughout. All these injuries were inflicted with a blunt weapon. Accordingly, so far as the presence of all the four accused-appellants at the site of occurrence and being armed with weapon and having participated in the commission of act of assault on Chhoga Ram deceased is borne out of this medical evidence as well.
42. The presence and involvement of all these four accused-appellants in addition to the statement of PW-2 Birbal Ram and PW-12 Tilok Ram are further fortified from Ex. P. 1 report so lodged by PW-2 Birbal Ram. As regards the contention of the learned counsel for the appellants, though PW-4 Prema Ram Jeep driver alleged that PW-2 Birbal Ram, after deliberations with late Shri Ram Singh Kuri, Advocate, the same is unsubstantiated in absence of any reliable evidence. There is no false implication of accused specially those who are appellants before us.
43. Besides, PW-13 Deewan Singh who investigated the case, clearly stated that during the course of investigation, he arrested all the accused-persons. Hanuman Singh (since deceased) was arrested vide Ex. P. 14 arrest memo and he made disclosure statement Ex. P. 19 that three pieces of the stick (lathi) were hidden by him which he could recover from his house and, consequently, three pieces of the lathi (articles 4, 5 and 6) were recovered vide Ex. P. 21 recovery memo, as is also corroborated by the contents of Ex. P. 19 and Ex. P. 21 memos.
44. Similarly, Deewan Singh also arrested accused-appellant Sukha Ram vide Ex. P. 16 arrest memo and it was on 7-10-1976 that the accused Sukha Ram gave him information vide Ex. P. 20 regarding lathi and, consequently, lathi article 7 was recovered vide Ex. P. 22.
45. Though, as is evidenced from Ex. P. 21 and Ex. P. 22, at the time of the alleged recoveries, Mohan Singh and Ganpat Singh were the respectable witnesses to witness those recoveries but they were not produced by the prosecution. However, after going through the statement of PW-13 Deewan Singh, his testimony is found to be worth full credence and hence their non-examination is not fatal to the prosecution. Therefore, on the basis of statement of PW-13 Deewan Singh and so also corroborated from the contents of Ex. P. 14, Ex. P. 19, Ex. P. 21, Ex. P. 16, Ex. P. 20 and Ex. P. 22, we find the evidence of Deewan Singh to be wholly reliable and so the recoveries of lathis as per Ex. P. 21 and Ex. P. 22 are held to be proved as has also been rightly done by the trial Court.
46. As stated by PW-13 Deewan Singh, he had recovered, seized and sealed the pieces of lathi as well as the lathi and so recovered at the instance of the accused Hanuman Singh and Sukha Ram respectively and their sealed packets were deposited with the officer-in-charge of the Malkhana of the Police Station where from as also stated by PW-9 Bhanwaroo Khan, those packets along with packets of blood stained clothes of the deceased etc. were taken to the FSFSL, Jaipur and were deposited there in a sealed and intact packed condition. This is also borne out of Ex. P. 26 report of the chemical examination forwarded by the RSFSL, Jaipur which shows that the clothes recovered from the dead body of Chhoga Ram and so also the pieces of lathi recovered pursuant to disclosure statement made by Hanuman Singh and so also the lathi bore stains of human blood but, however, their origin and group could not be ascertained. In view of these circumstances, even in absence of evidence of similarity in the group of blood found on the weapons of offence as well as the clothes of the deceased, since Ex. P. 26 and Ex. P. 27 clearly evidenced that the lathi/pieces of lathi recovered at the instance of accused-persons bore human blood and, resultantly, the involvement of both these accused-persons cannot be denied and it lends further corroboration to the prosecution case.
47. The prosecution also examined PW-14 Dr. Bhagirath Verma who had, on the basis of Ex. P. 28 and Ex. P. 29 injury reports, deposed that on examination of body of Sukh Ram, he found two abrasions as noted in Ex. P. 29 injury report caused with a blunt weapon. Similarly, on examination of body of accused Hanuman Singh (since deceased) who is brother of the accused-appellant Bheru Singh, an abrasion as noted therein caused by a blunt weapon was found on his person as borne out of Ex. P. 28 injury report. These injuries on the persons of both the accused-persons which coincide with the time of incident of this occurrence further lend support to the presence and involvement of both these accused persons in the alleged incident.
48. The accused-persons have outrightly denied this occurrence and advanced a plea of alibi and have examined as many as 12 witnesses who are D.W. 1 Mohan Ram, D.W. 2 Harchand, D.W. 3 Magha Ram, D.W. 4 Bhagwan Singh, D.W. 5 Kishore Singh, D.W. 6 Amaroo, D.W. 7 Bansi Ram, D.W. 8 Smt. Janaki, D.W. 9 Hukan Singh, D.W. 10 Dhoola, D.W. 11 Bharat Singh and D.W. 12 Sohan Singh. Out of these defence witnesses so examined, so far as statements of D.W. 2 Harchand and D.W. 3 Megha Ram are concerned, they relate to alibi of Mangi Lal. D.W. 7 Bansi Ram has been examined on behalf of Sukha Ram and D.W. 11 Bharat Singh has been examined similarly by Hunuman Singh. The statements of these witnesses are per se of general nature and there is no grain of truth in their statements and ex facie they are liable to be rejected on the face of overwhelming ocular as well as circumstantial evidence of the prosecution discussed hereinbefore. D.W. 4 Bhagwan Singh has also similarly stated that he found Chhoga Ram in a state of drunkenness but he had no business to have gone to his house and there is no evidence in support of Bhagwan Singh that Chhoga Ram took alcohol or that he was intoxicated leading to his death on any other ground not connected with this incident and his statement is also found to be false and liable to rejection. D.Ws. 5,6,8,9,10 and 12 have also stated that since they were present or residing in the neighbourhood of the place of occurrence and no such incident took place as alleged by the prosecution but, as stated hereinbefore, there is overwhelming evidence in support of the prosecution case that such an incident of conjoint assault by the four accused-appellants on Chhoga Ram took place. All these statements being of general nature coming from the mouth of person interested in the accused-appellants, do not have any substance and are far from being natural and reliable and, accordingly, the same are hereby rejected which did not inspire confidence with the trial Court too.
49. As a result, the pleas of alibi advanced by the accused-appellants have been held to be false and stand rejected and, consequently, on the basis of the aforesaid discussion, the ocular, medical and the circumstantial evidence and there being a motive for assault on Chhoga Ram and so also the injury reports Ex. P. 28 and Ex. P. 29 lending full assurance to the presence and involvement of the accused-appellant Hanuman Singh and Sukha Ram, we are of the opinion that the prosecution has proved beyond reasonable manner of doubt that the deceased Chhoga Ram was subjected to an assault by the accused-persons conjointly at the place of occurrence as alleged by the prosecution and the injuries so found vide Ex. P. 9 postmortem report and as deposed to by PW-12 Dr. Gehlot, were a result of assault resorted to and made by the accused-appellants (including the deceased-accused) and the injuries of the deceased could not have been caused to or received by him in any other manner whatsoever.
50. Hence, the last question that calls for determination is, since death of Chhoga Ram has already been held to be proved to be a homicidal one, as to what offence has been committed by the accused-persons. As discussed hereinbefore, the medical evidence as deposed to by PW-11 Dr. Gehlot and so also supported by Ex. P. 4, Ex. P. 5, Ex. P. 6 and Ex. P. 9, proves that there existed seven injuries on the person of the deceased Chhoga Ram. Barring injury No. 7 described therein, rest of the six injuries being two simple lacerations and four abrasions, there remained only one injury which was also caused by a blunt weapon on the head of the deceased and, as a result, a haematoma was found on the right temporalis in an area of 10.0 cm x 7.0 cm and, resultantly, it was further revealed that there was epidural haematoma on the right parieto-temporal region and it resulted in bringing the victim Chhoga Ram (since deceased) in a state of coma and consequential unconsciousness till his death as borne out of Ex. P. 4 to Ex. P. 6 and Ex. P. 9. Though omitted in Ex. P. 9 itself, Dr. Gehlot has clearly opined in his statement that this injury No. 7 described in Ex. P. 9 post-mortem report was sufficient in the ordinary course of nature to cause death and there is nothing there against to disbelieve the statement of Medical Jurist that this injury did bring death to the deceased. This witness has further stuck to his statement, while denying defence suggestion, that due to injury caused by a blunt weapon on the skull and the resultant extradural haematoma was the direct cause of death and the same was not curable by medicines as well.
51. Now, in view of this unambiguous statement of Medical Jurist that the cause of death of Chhoga Ram was the extradural haematoma resulting from his single skull injury, there is no doubt that the cause of death of Chhoga Ram was the head injury as overwhelmingly borne out by the medical evidence.
52. As regards the liability of the accused-persons, either individually, or collectively, as concluded hereinbefore, as per the prosecution case and so also held by the lower Court, with which we are in full agreement, all the accused-appellants numbering four were present on the spot and involved in assault committed on Chhoga Ram. However, it has further been alleged by the prosecution and so also borne out of its evidence that there were four persons out of whom Hanuman Singh and Sukha Ram were armed with lathis and PW-13 Deewan Singh recovered one lathi and three broken pieces of another lathi which are ordinary sticks (lathis) used by the agriculturists for even driving their cattle. Bheru Singh and Mangi Lal are alleged to have been armed with a ''pharsi'' and a ''kassi''. Though these articles are also used for different agricultural purposes as well but, as is the medical evidence and so also alleged by PW-2 Birbal Ram and PW-12 Tilok Ram, though not so alleged in Ex. P. 1 report itself, the reverse sides of the instruments were used in inflicting injuries on the person of Chhoga Ram. There were total seven injuries found on the person of Chhoga Ram. Only one head injury was proved to be fatal and rest of the six injuries were of simple nature and, barring two lacerations, remaining four abrasions could also be caused by even friction against any hard object like stone etc. and, therefore, even if the evidence of the prosecution is accepted on its face value holding that all the four accused-persons conjointly surrounded and assaulted Chhoga Ram with weapons they are alleged to have been in possession of, both Hanuman Singh as well as Mangi Lal did not use the sharp/cutting sides of their weapons and, instead, they are alleged to have used reverse sides of those weapons in causing injuries and barring only one injury, rest of the injuries were simple in nature. Both the lacerations were respectively found on frontal region of scalp and the other one on left leg and were simple. They did not contribute to the death of the deceased. Rest of the four injuries were not found on any vital part of the body. There is absence of evidence from the side of the prosecution as to who was the author of the grievous injury resulting in extradural haematoma in the brain of deceased Chhoga Ram. Besides, admittedly, neither Hanuman Singh nor Mangi Lal used ''pharsi'' and ''kassi'' in infliction of injuries to Chhoga Ram. It clearly shows, as held by the Apex Court in the case of
53. Therefore, looking to the number of injuries, seats of the injuries, the nature and the weapons with which the accused-appellants are alleged to have been armed, in case there was any common intention having been formed prior to or right at the time of commencing assault on Chhoga Ram to commit his murder, the accused-persons had every opportunity and means, without any interruption, to have inflicted more serious injuries causing even instantaneous death of Chhoga Ram but they did not do so. Even PW-2 Birbal and P W-12 Tilok Ram are alleged to have stated that they had heard cries of Chhoga Ram while working in their fields. Since their versions in regard to their''s following Chhoga Ram at a distance of 40 to 50 paundas does not appear to be natural and worth reliance. When they were able to see the place of occurrence, it was natural conduct on their part to have shouted from there and to have rushed towards the place of occurrence leaving enough time for the accused-appellants to have finished Chhoga Ram to death but they did not do so and left Chhoga Ram though in an unconscious condition due to his single head injury after inflicting only six simple injuries in addition thereto. Therefore, since Mangi Lal and Hanuman Singh scrupulously avoided causing even a single injury with the weapons in their possession and except one injury caused on the head which too does not appear to be an intentional one coming from the hand of any of the accused-persons, only simple injuries were caused and, therefore, there was complete absence of causing of intentional injuries by any of the accused-appellants to kill Chhoga Ram to death. He died after about 27 hours of the occurrence.
54. Alternatively, even if it is assumed that the person who was author of the single fatal injury inflicted on the skull of the deceased had done so intentionally, there is complete absence of evidence from the side of the prosecution in regard to authorship of this fatal injury being the direct cause of death of the deceased. Therefore, none of the accused-appellants is proved individually to be author of the fatal injury and, resultantly, we are left with the alternative to ponder over and find out whether the accused-appellants shared any common intention to cause death of Chhoga Ram and it was in furtherance of common intention of all the accused-appellants that any of them caused fatal injury to Chhoga Ram resulting in his death so as to make all the accused-appellants vicariously liable for commission of murder.
55. As already discussed above, the accused-persons being armed with different weapons and specially Hanuman Singh and Sukha Ram being armed with ''pharsi'' and \\kassi,'' did not inflict any grievous injury barring only one injury on the skull of the deceased and the sharp and cutting sides of the weapons possessed by accused-appellants Hanuman Singh and Sukha Ram were not at all used from those sides and, instead, they are alleged to have used their reverse sides in inflicting simple injuries barring one on the person of deceased Chhoga Ram whereas in case there was any intention to cause death, all the accused-persons had every opportunity and means by way of being armed with even cutting/sharp weapons, as stated above, to have caused more grievous and fatal injuries killing him on the spot which they did not do. The deceased though, due to single head injury, fell into coma and continued to be so till his death on 25-9-76 at 6.25 p.m. at Jodhpur. Therefore, since the prosecution story in regard to complicity and involvement of Dayal Ram stands disbelieved by the trial Court and so also by this Court and, consequently, in totality of facts and circumstances of the case, specially looking to the ocular as well as medical evidence, we find that there was no common intention shared by all the accused-appellants to cause death by even causing the injury intentionally which was sufficient in the ordinary course of nature to, cause death and, so also, the individual amongst the accused-appellants who happened to cause a single fatal injury, though unknown, could not have necessarily intended to cause the same injury intentionally but, in totality of aforesaid circumstances, we are of the opinion that the accused-persons, being armed with different weapons and having intercepted Chhoga Ram while he was on the way to his house, assaulted him conjointly, the accused-appellants had knowledge that their act was likely to result in death of Chhoga Ram and, consequently, with this common knowledge they all caused injuries to Chhoga Ram and one of the injuries falling on his head has been proved to be fatal. Ex. P. 4 besides bears a note that the deceased received the head (fatal) injury on account of a group fighting and that too having gone unexplained by the prosecution, further lends support to our conclusion that the common knowledge of the accused-persons did not extend beyond the knowledge that the act was likely to cause death of Chhoga Ram and it was in furtherance thereof that they conjointly assaulted Chhoga Ram which resulted in his death as above because of a single fatal injury.
56. So far as submission of the learned counsel for the accused-appellants, while relying on the Division Bench decision of this Court rendered in Dunga Ram v. State of Raj 1996 Cri LJ 3672 (supra), is the same, it was held that since there was a single blow on the head of the deceased caused with a lathi and the Medical Officer opined that it was a single injury caused by blunt weapon without any fracture deducted even after X-ray examination and since internal injury which was deducted on post-mortem of the dead body proving fatal was never intended to be caused by the appellants and, hence, without delving on the question as to whether the act of causing such injury was done with the knowledge that it was likely to cause death as described in Pt. II of Section 304, I.P.C. and hence this decision is of no help in solving the present controversy. Contrarily, the extradural haemorrhage by itself is fatal as it took the life of Chhoga Ram deceased.
57. Resultantly, in view of the preparation and the previous animosity existing between the parties and the deceased Chhoga Ram having been intercepted and assaulted conjointly with blunt weapons but with a scrupulous precaution that no injury with the sharp/cutting side of the dangerous weapon was caused to the deceased and except one injury which left the deceased on the spot in an unconscious position, no other grievous injury was caused and the greater number of injuries so found on the person of the deceased were all of a superficial nature and, resultantly, all these circumstances lead us to the conclusion that the act of causing grievous injury to the deceased Chhoga Ram was not intentional one and, instead, all or any of them caused the fatal injury on Chhoga Ram with the common knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death and hence the act of the accused-appellant is squarely covered by Section 304 Pt. II, I.P.C. and they are responsible for being convicted thereunder instead of u/s 304 Pt. I, I.P.C. as has been done by the learned trial judge.
58. In Ramkishan v. State of Rajasthan 1997 Cr LR (SC) 718 : AIR 1997 SC 3997, in absence of sharing of any common intention or object to cause the death of the deceased, in similar circumstances, it has been held that in absence of intention of the appellants to cause such injuries, only knowledge can be attributed to the appellant that death was the likely result of their assault and, as a result, in the instant case as well, we hold that the accused-appellants are liable u/s 304, Pt. II, I.P.C. only and not otherwise.
59. As a result, with the aforesaid modification, the appeal so preferred by the convict-appellants deserves to be accepted in part with modification in conviction and consequential sentence.
60. Resultantly, the learned counsel for the appellants has further submitted that out of the four accused-appellants, Hanuman Singh and Bheru Singh who are alleged to have had some motive to have assaulted the deceased, expired during the pendency of these appeals and so far as they are concerned, these appeals stand abated.
61. Therefore, consequent upon aforesaid finding in respect of Appeal No. 292/78, the apparent fate of the State Appeal No. 490/78 being dismissal of the same there remain only two accused-appellants who have to face the brunt of conviction and sentence. Both Sukha Ram as well as Mangi Lal are Bawaris is by-caste and members of Scheduled Caste. They might have been involved in the assault, as is the prosecution case, by the deceased accused-persons. This incident dates back to 24-9-76 and a period of about 22 years has elapsed since then. There is no allegation of involvement of both the accused-appellants in any other offence thereafter. Mangi Lal accused-appellant was arrested on 5-10-1976 and, similarly, Sukh Ram was arrested on 4-10-1976. They were not released on bail during the pendency of the trial and it was during the pendency of the present appeal that, pursuant to order u/s 389, Cr. P.C., in the petition regarding suspension of sentence and release on bail during the pendency of the appeal passed on 25-8-1978 by this Court, that they were, lastly, released on bail on 30-8-1978 and not before. Therefore, the learned counsel for the appellants further submitted that in view of the aforesaid circumstances, the accused-appellants deserve a liberal and considerate view in regard to sentence to be awarded u/s 304 Pt. II, I.P.C.
62. We find much force and merit in the submission made by the learned counsel appearing on behalf of these appellants. Resultantly, we are of the opinion that the ends of justice would be fully served and met with in case the sentence of imprisonment is limited to the one already undergone by each of these accused-appellants maintaining the sentence of fine imposed on each accused-appellant by the trial Court.
63. On the basis of aforesaid discussion, the Appeal No. 292/78 succeeds in part in the aforesaid terms while the State Appeal No. 490/78 fails.
64. Accordingly, Appeal No. 490/78 filed by the State is hereby dismissed.
65. As regards Appeal No. 292/78 filed by the accused-appellants Mangi Lal and Sukha Ram, the same is accepted in part and, consequently, their conviction and sentence u/s 304 Pt. I, I.P.C. are hereby set aside and, instead, both of them are convicted and sentenced u/s 304, Pt. II, I.P.C. and the sentence of imprisonment on each appellant is limited to one already undergone by each of the appellants. However, the sentence of fine imposed on each appellant by the trial Court, as above, is maintained and the sentence of imprisonment imposed in default of payment of fine on each appellant is also kept intact.. Both the accused-appellants are granted one month''s time to deposit fine so imposed in the trial Court and till then they shall not be required to be arrested to undergo sentence of imprisonment in default of payment of fine. However, after expiry of this period of one month, in default of payment of fine, the trial Court shall proceed to arrest the accused-appellants and send them to jail to serve out the sentence of imprisonment awarded in default of payment of fine. As and when amount of fine is deposited/realized, the same shall be paid to the legal heirs of deceased Chhoga Ram by the trial Court.
