Farooq Hasan, J.@mdashAppellants, Karam Singh and Sawai Singh, are convicted u/s 302, IPC, and sentenced to imprisonment for life and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months RI by the learned Additional Sessions Judge, Beawar by his judgment dated March 8, 1988. They have come up in appeal and challenge their conviction.
2. Briefly stated the prosecution case is that on a report lodged by Kishan Singh PW 2 at Police Station Sadar, Beawar on 17-8-1987 for an incident of the very day, a case was registered for an offence u/s 307, IPC, against the accused persons including the appellants. It was alleged in that report, that at 9.30 p.m. on 17-8-1987, informant Kishans'' went to the house of his uncle, Jetha Singh, on hearing hue and cry, and there, found that Jetha Singh and his son, Shrawan Singh were being belaboured by the appellants. Amar Singh, Pukhraj and Mahendra Singh were named as eye witnesses of the incident. After the death of injured, Sharwan Singh on 20-8-1987, the case was converted for the offence u/s 302, IPC After usual investigation, a challan was presented against the appellants along with Ladu Singh for the offences mentioned in the charge-sheet. Learned trial court after framing charges recorded statements of 16 prosecution witnesses. The appellants in their statements u/s 313, Cr.PC denied prosecution allegation levelled against them. Learned trial court found only appellants guilty of the offence u/s 302, IPC and co-accused Ladu Singh was held responsible u/s 325, IPC for causing injuries on the person of Jetha Singh.
3. We have heard Shri Jagdeep Dhankhar learned Advocate on behalf of the appellants and Shri Rizwan Alvi Public Prosecutor for the State. We have perused the record.
4. Only argument, urged by the learned Counsel for the appellants, is that Sharwan Singh (deceased) sustained two injuries on the scalp, one on the fore-head and the other on the right ear. According to the post mortem report (Ex.P. 22), the death of deceased was due to shock as a result of extensive laceration of the brain on account of the multiple fractures of the skull bones because of injuries over the scalp. Thus, taking the aid of autopsy report of the deceased, learned Counsel for the appellants contended that the injuries on scalp were mainly the result of the deceased and that looking to the allegations made by the prosecution in its evidence before the trial Court it is abundantly clear that the scalp injuries have been inflicted by Ladu Singh & Karan Singh but it has not been explained by the prosecution and there is nothing on record to show that the injuries on scalp inflicted by Ladusingh was not a result of fracture sustained on the person of the deceased which subsequently became cause of the death of injured. Learned Counsel for the appellants in these circumstances contended that the appellant (Karan Singh) cannot be held guilty for the offence of Section 302, IPC and at the most can be convicted u/s 325 IPC, only for allegedly causing grievous injuries on the person of the deceased.
5. On the other band, learned Public Prosecutor contended that in the instant case, there is evidence of the prosecution witnesses on record that Katamsingh inflicted blows on the scalp of the deceased and in this view of the matter, learned trial Court was justified in convicting the appellants u/s 302, IPC. No other point was convassed by both the learned Counsel.
6. We have considered the point raised and go through the entire record.
7. According to the FIR (Ex.P. 1) lodged by Kishansingh, after hearing noise, the informant went towards the place of incident and there he saw that the accused persons were inflicting Lathi belows on the persons of Karam Singh, and Jetha Singh tried to intervene and at that time, Ladu Singh also inflicted blow on his hand (Jetha Singh''s), and at that time, Amarsingh & Pukhraj came on the spot and they intervened so as to save the injured person. It has also been alleged in the FIR that Mahendra Singh has also come at the scene of the occurrence and witnessed the incident. But, we may state that the informant (Kishan Singh PW 2) in his statement deposed that he only taw head injury on the person of Sarwan Singh and was not in a position to see as to how many injuries had been inflicted on the person of Sarwan Singh because there was dark night; and that, he did not see any body giving beating to Sarwan Singh. From the above narration of facts condensed from the statement of Kishansingh (PW 2), it is explicitly clear that Kishansingh did not claim himself to be an eye witness of the beating on the person of Sarwan Singh and the prosecution cannot take any help from his evidence with regard to the charge u/s 302, IPC, against the appellants.
8. Mabendra Singh (PW 1) in his statement deposed that while he was going towards the place of incident he saw that Ladu Singh & Karam Singh were inflicting Lathi blows on the head of deceased. If this part of the statement of Mahendra Singh is accepted on its face value then it appears that the head injuries on the person of deceased were inflicted by Ladu Singh and Karam Singh. Sohni (PW 4) wife of Sarwan Singh (deceased) deposed that her husband, Sarwan Singh was beaten by Karain Singh, Ladu Singh and Sawai Singh, and that Ladu Singh also inflicted blows on the person of deceased Amar Singh & Pukhraj (PWs 6 & 8) who have been named as eye witnesses in the FIR turned hostile and they did not support the prosecution, Dakhu (PW7) also turned hostile Dakhu had been produced in order to support the prosecution version since she claimed herself to be an eye witness. Jetha Singh (PW 9) who is an injured person and is alleged to have been beaten first by accused persons, also deposed that the appellants and Ladu Singh gave beating to Sarwan Singh (deceased).
9. Having benefitted by the enlightments derived from the prosecution evidence of its eye witnesses it is thus clear that Sarwan Singh (deceased) was not only beaten by the appellants but also by Ladu Singh None of the eye witnesses have given any specific overtact against the appellants. In these circumstances, it cannot be said that the injuries on the scalp of deceased were only caused by the appellants and not by co-accused Ladu Singh, who has not even been charged of the offence u/s 302, IPC and at the very initial stage, it was found that he did not inflict any injury on the person of the deceased and had only inflicted injury on the person of Jetha Singh (injured), nor the evidence at the trial stage came otherwise by implicating Ladu Singh for the beating on the person of the deceased.
10. As said earlier, in the autopsy report of the deceased, it has been mentioned that Sarwan Singh died due to shock as a result of extensive laceration of the brain on account of multiple fractures of the skull bones because of injuries over the scalp. It is thus clear that no attempt was ever made to identify the internal injury and further the prosecution could not establish that either or both the external injuries were found on the scalp. It is quite unsafe to, on that evidence, infer that only one of these two injuries might have been responsible for the death of the deceased, and in that situation the difficulty certainly arises to ascertain as to which of the injuries was caused by the appellants specially when Ladu Singh had also been named as the person to have inflicted blow on the person of the deceased, also. In this confronting situation, it is very difficult for us to find out whether the blow given by the appellants were the one which ultimately proved to be fatal. It was essential in the present state of things to bring home charge of murder of the deceased to the appellants as the Lathi blows alleged to have been given by the appellants landed on the head which caused injuries on the scalp of the deceased and that only proved fatal. Since the evidence clearly discloses that the injuries on the person of the deceased was not only caused by the appellants but was also caused by co-accused Ladu Singh. None of the eyewitnesses have deposed that the injury on the scalp has been caused by the appellants benefit of this infirmity goes to the appellants. In these circumstances, this much can only be said that the appellants might have given fatal blow or might have given blow which did not prove fatal. In these circumstances, the appellants'' conviction u/s 302, IPC was plainly incorrect. How ever, from the evidence on record, the appellant''s and his companion, Ladu Singh are proved to have common intention to cause grievous hurt! Hence the appellants could be convicted u/s 325 read with Section 34, India Penal Code.
11. In the result, we, therefore, partly allow this appeal and set aside the conviction of the appellant u/s 302, IPC, and instead, convict them u/s 325 read with Section 34, IPC and sentence them to under go three years'' rigorous imprisonment in respect of the offence proved to have with regard to the murder of the deceased and further we sentence them to pay a fine of Rs. 2500/ each, in default of payment of fine, they shall undergo six month''s RI Out of fine amount imposed upon each of the appellants for their conviction u/s 325/34, IPC, if collected, it is directed that 75% of the fine amount be given in equal share to the legal heirs of Sarwan Singh (deceased).
12. To the above extent, the impugned judgment is modified. The record along with Malkhana articles if any be returned to the trial Court forth with. While computing the sentence, the accused appellant shall be given the benefit of Section 428, Cr. PC.
