Jas Raj Chopra, J.@mdashThis appeal is directed against the Judgment of the learned Additional Sessions Judge, Raisinghnagar dated 25-3-1987
were by the learned Judge has found the accused-petitioners Brijlal and Kishnaram guilty of the offence under Sections 304 Part II and 325/34
IPC and has sentenced them to 7 years rigorous imprisonment together with a fine of Rs. 500/- on the first count and 4 years rigorous
imprisonment together with a fine of Rs. 500/- on the second count. But these substantive sentences have been ordered to run concurrently.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that on 5-7-1984, Shri Birbalram resident of village Keepli
Tehsil Anoopgarh went to Mandi Ramsinghpur for check up and treatment of his mother and father. In the evening, his mother and father were sent
back on a camel cart and he started for his village on foot. In the way, he met accused-petitioners Brijlal and Kishnaram resident of village Keepli.
They were armed with lathies. Thereafter, Mishrasingh Jatsikh''s son came with a tractor. All three bearded that tractor and started for village
Keepli. It is alleged that when they were only one Murabba away from their village, accused Brijlal asked the tractor driver to stop the tractor and
said that they will get down to drink water Birbalram too was persuaded to get down from the tractor. Mishrasingh Jatsikh''s son did dot wait for
them and he went away with his tractor. Thereafter, it is alleged that accused Brijlal told Birbalram that he has helped Hukmaram Meghwal in
lodging a case against him in the matter of molestation of his wife and as, he will teach a lesson to him. Later it is alleged that accused Brijlal caught
hold of him and accused Kishnaram inflicted a lathi blow on his right leg by which he fell down and then both these accused-persons started
beating him with lathies. On hearing his cries Jagmal and Amichand came there and on seeing them, the accused-petitioners ran away from the
place of the occurrence.
3. Thereafter, a tractor was brought from the village and injured Birbalram was shifted to the Hospital, where his injuries were get medically
examined by the Medical Officer, Govt. Hospital, Anoopgarh, who found 25 injuries on his person, out of which, two injuries were alleged to have
been caused by sharp-weapon and the rest of the injuries were blunt weapon injuries. The Medical examination report was sent to the Police and
the Police recorded the statement of the injured Birbalram and on the basis of that information, FIR Ex. P 1 was drawn Injury No. 1 which was on
the right lower leg i e. shin was found to be grievous inflicted by sharp weapon As the injured has stated that he was beaten by lathies, a letter was
written by the SHO to the Medical Officer for seaking certain clarifications. The Medical Officer reported that injuries No. 1 and 3 are by blunt
weapon injuries. How ever, injured Birbalram died on 14-7-1984 and, therefore, his postmortem examination was get conducted. His blood
stained clothes etc. were sent for chemical examination. The accused-petitioners were arrested. One lathi each was recovered from their
possession which, of course, were not found blood stained and, therefore, they were not sent for chemical examination. After usual investigation, a
case against both these accused-petitioners was challaned to stand trial for the offence u/s 302 IPC. The prosecution examined as many as 10
witnesses in support of its case. The statements of the accused persons were recorded u/s 313 Cr.P.C. The accused-petitioners examined two
witnesses in their defence. After hearing both the parties, the learned lower court has decided this case as aforesaid. Hence this appeal.
4. I have heard Mr. Doongarsingh, the learned Counsel appearing for the accused-petitioners Mr. L.M. Lodha, the learned Public Prosecutor for
the State. I have carefully gone through the record of the case.
5. In this case, the FIR has been lodged by the injured himself and he has categorically stated that these accused person bearded the tractor with
him from Mandi Ramsinghpur and when they were only one Murabba away from their village they get down for taking water. Mishra Singh
Jatsikh''s son took away his tractor and thereafter, accused Brijlal told injured Birbalram that he has helped in lodging a case against him for
molestation of Hukmaram Meghwal''s wife and, therefore, he will teach a lesson to him. Later, it is alleged that accused Brijlal caught hold of him
and accused Kishnaram inflicted a lathi blow on his leg, by which, he fell down, The Doctor has reported that the injured received one incised
wound with fracture 2-1/2 c.m. x 1 c.m. on right lower leg. Initially, the Doctor has opined that this is a sharp weapon injury but in Ex P 12 he has
clarified that this injury and injury No. 1 and 3 were blunt weapon injuries. He has also clarified this aspect of the matter in his statement when he
was examined by the trial court as PW 6. So that as it may, the injured has stated that both these accused persons inflicted lathi blows to him.
Almost all parts of his body were availed for infliction of injuries. He has further stated that on hearing his cries, Amichand and Jagmal came there
and on seeing them, the accused persons ran away from the place of the occurrence. This statement of the injured which has now been treated as a
Dying Declaration and on the basis of which, the FIR was drawn has been proved by PW 9 ASI Ramjilal. This statement of the injured which has
been treated as Dying Declaration has been fully supported by the evidence of PW 5 Amichand and PW 7 Jagmal. Both of them have stated that
they were going to the village from their field and in the way near crossing of the canal, they heard cries of Birbalram and then they immediately
came to the spot through a bridge and as soon as the accused persons saw them, they ran away from the place of the occurrence. They have
further stated that accused petitioners were inflicting lathi blows to injured Birbalram and when the accused persons ran away from the place of the
occurrence injured Birbalram could not stand up and they helped him to stand up but their attempts failed. They have also stated that Birbalram
told them that these two accused-persons have beaten him severely.
6. Mr. Doongarsingh, the learned Counsel appearing for the accused petitioner has tried to canvass before me that this injury on the leg might have
came by a fall. Such an injury cannot be received by a lathi ''blow. I am unable to accept this contention. If a lathi blow is inflicted on the shin, it
can safely cause an injury like injury No. 1. More over, the Doctor has not been cross-examined on this point that this injury is not possible by a
lathi blow. From the evidence of these three witnesses i.e. dying declaration of injured and two alleged eye witnesses viz PW 5 Amichand and PW
7 Jagmal. it is clear that the accused-petitioners are the assailants of the deceased Birbalram PW 5 Amichand and PW 7 Jagmal have been
thoroughly cross-examined and their evidence on this score could not be assailed at all. Under these circumstances, the learned lower court was
perfectly justified in relying on the dying declaration of Birbalram which is fully supported by the testimony of PW 5 Amichand and PW 7 Jagmal.
7. Now the next point that has been argued before me is as to what offence has been made out in this case against the accused-petitioners. It is
alleged that these injuries were inflicted to Birbalram in the night intervening between 5 7-1984 and 6-7-1984 where as the injured died on 14-7-
1984 and that too, on account of the fact that he has developed eligaemic shock and acute tubular necresis of kidneys i.e. renal failure, which has
resulted in his death. Mr. Doongarsingh has submitted that PW 6 Dr. S.P. Sharma has stated that initially when the accused was brought to him, he
was conscious and his condition was not serious. He has developed this type of shock as the combined effect of all the injuries. As per him, in
some, cases, the effect of such injuries washes away within 48 to 72 hours but in some cases i.e. 50% of the cases, it persists and results in
eligaemic shock and other complications which have already developed in the case of this injured. As per the Doctor, all these injuries were not
sufficient in the ordinary course of nature to cause his death but they have resulted in this type of shock and acute tubular necresis of kidneys i.e.
renal failure and, therefore, the view of the learned lower court these injuries were likely to cause the death of the injured cannot be held to be a far
fetched conclusion. In the facts and circumstances of the case, when the accused petitioners have inflicted as many as 25 injuries on all the parts of
the body of the deceased and could have inflicted many more injuries if these witnesses have not intervened, they could very well have known that
their act was such as was likely to cause the death of the injured and, therefore, the view of the learned lower court that the accused petitioners are
guilty of the offence under s 304, Part-II, IPC is a sound conclusion which does not deserve any interference.
8. Once the accused persons are held guilty of the offence u/s 304 Part-II, IPC, they need not be convicted separately for the offence u/s 325/34
IPC because that is a minor offence of Sec, 304, Part-II, IPC.
9. So far as the sentence is concerned. Mr. Doongarsingh has submitted that only one grievous injury has been caused to the deceased and all the
rest of the injuries are simple in nature and, therefore, the sentence that has been awarded to the accused-petitioners is very severe. I have
considered this submissions also. In the facts and circumstances of this case, I feel that the ends of justice would be met if the accused petitioner
are sentenced to 4 years rigorous imprisonment together with a fine of Rs. 500/ and in default to undergo two months rigorous imprisonment for
the offence u/s 304, Part-II, IPC.
10. Consequently, this appeal is allowed in part. The conviction of accused petitioners Brijlal and Kishnaram for the offence u/s 304-Part II, IPC is
maintained. How ever, their conviction and sentence for the offence u/s 325/34 IPC is set aside as being superfluous. Their sentence of 7 years
rigorous imprisonment together with a fine of Rs. 500/- and in default to undergo 2 months rigorous imprisonment for the offence u/s 304 Part-II,
IPC is altered to 4 years rigorous imprisonment together with a fine of Rs. 500/- and in default to undergo 2 months rigorous imprisonment.
11. Let the record of this case be sent to the learned lower court fort with.