JUDGMENT 1. - Learned Additional Sessions Judge, Nohar Camp Bhadra in Sessions Case No. 6/93 : State v. Fatehsingh & Ors., tried and convicted the appellants for the offences mentioned below:- 1. Fatehsingh was tried for offence punishable under section 302 IPC and Section 323 read with Section 34 IPC and was sentenced to life imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for six months for offence punishable under Section 302 IPC and to undergo rigorous imprisonment for 3 months for offence punishable under Section 323 read with Section 34 IPC. 2. Lalaram were convicted under Section 302 read with Section 34 IPC as well as under Section 323 read with Balaram Section 34 IPC and sentenced to life imprisonment and a fine of Rs. 500/- each and to undergo rigorous imprisonment for a further period of 6 months for default in payment of fine under Section 302 read with Section 34 IPC and to undergo rigorous imprisonment for 3 months for offence punishable under Section 323 read with Section 34 IPC. 3. Bhagram 4. Balaram 2. Being aggrieved by the conviction as well as the sentences awarded by the learned Additional Sessions Judge, Nohar Camp Bhadra, this appeal has been filed by the appellants. 3. The facts of the case may be briefly stated as follows: On 12.11.1992 at about 7 p.m. Keshra Ram son of Amila reported at the Police Station, Bhirani District Sri Ganganagar that on that day at about 6 p.m. when he was grazing the sheep near the village his brother Balwan and his brothers wife Smt. Om Kala were going towards the village. When they reached in the middle of the "field of Phula Kulhadia and Naki Master, Lalaram, Balaram, Fatehsingh and Bhagaram stopped their way. At that time Balaram and Fatehsingh were armed with lathis and Lalaram and Bhagaram were armed with Jellis made of iron and they started beating Balwan. When Balwan raised a hue and cry the first informant Keshraram went near him in order to protect him. Meanwhile Fateh singh inflicted a lathi blow on the head of Balwan in order to kill him. In consequence Balwan fell on the ground and the remaining assailants inflicted injuries with lathis and jellis. When Balwan raised a hue and cry the first informant Keshraram went near him in order to protect him. Meanwhile Fateh singh inflicted a lathi blow on the head of Balwan in order to kill him. In consequence Balwan fell on the ground and the remaining assailants inflicted injuries with lathis and jellis. It was also stated in the first information report that when Keshra Ram tried to intervene he was given, a blow on his left pelvis. On hearing the hue and cry Bhaga singh also reached the spot and thereafter the assailants ran away. The Injured Balwan was taken In a jeep to Bhadra Hospital where he was admitted in a serious condition and the first information report was lodged by Keshra Ram at the Police Station, Bhirani at 7 p.m. i.e. about one hour after the alleged incident. The police registered a case under Section 307 read with 34 IPC and commenced the Investigation. After usual investigation a report under Section. 173 Cr.PC was submitted in the court of Munsif & Judicial Magistrate, Bhadra who committed the case to the court of Additional District and Sessions Judge, Nohar. In the court of Additional District and Sessions Judge, Nohar the appellants were tried; convicted and sentenced as mentioned above. 4. During the trial, the prosecution examined Sanwatram PW 1, Jaleshing PW 2, Keshra Ram PW 3, Bhagchand PW 4, Sitaram PW 5, Smt. Om Kala PW 6, Manphool PW 7, Dr. Subhash Singh PW 8 & Virendra Kumar PW 9 in support of the prosecution story. The appellants were examined under Section 313 Cr.PC. They pleaded not guilty to the charges and did not produce any evidence in defence. 5. Learned Additional District and Sessions Judge relied upon the testimony of Keshra Ram, PW 3, Bhagchand PW 4 and Smt. On Kala PW 6 for the purpose of holding the appellants responsible for the injuries found on the person of Balwan. He further held that the testimony of Dr. Subhash Singh Rajput PW 8 proved that the injuries received on the head of Balwan was sufficient in the ordinary course of nature to cause his death and that this injury was caused by the appellant Fatehsingh and Keshra Ram PW 3 and Smt. Om Kala PW 6 had also received injuries when they tried to intervene. Subhash Singh Rajput PW 8 proved that the injuries received on the head of Balwan was sufficient in the ordinary course of nature to cause his death and that this injury was caused by the appellant Fatehsingh and Keshra Ram PW 3 and Smt. Om Kala PW 6 had also received injuries when they tried to intervene. The learned Additional District and Sessions Judge further held that it was proved beyond doubt that the common intention of the appellants was to cause death of Balwan. Therefore, he convicted Fatehsingh who is in his opinion was the author of the fatal injury found on the head of Balwan under Section 302 IPC and Section 323 read with Section 34 IPC and on that footing the other appellants shared the common intention to cause.death of Balwan he convicted them under Section 307 read with Section 34 IPC as well as under Section 323 read with Section 34 IPC. 6. Learned counsel for the appellants has submitted that the evidence adduced by the prosecution before the trial court is not sufficient to prove the alleged offences against the appellants beyond reasonable doubt, and even if the alleged occurrence is held to be proved beyond reasonable doubt the act of the appellants does not amount to murder, and the appellant No. 1 can at best be convicted under Sections 304 Part II and 323 read with Section 34 IPC and the appellants No. 2, 3 and 4 cannot be convicted under Section 302 read with Section 34 IPC. 7. Learned Public Prosecutor has supported the judgment of the learned lower court. 8. Out of the 9 witnesses examined by the prosecution Keshra Ram PW 3, Bhagchand PW 4 and Smt. Om Lal PW 6 were the eye-witnesses, Virendra Kumar PW 9 is the Investigating Officer who conducted the investigation. Dr. Subhash Singh PW 8 is the Doctor who conducted the post mortem examination of the dead body of Balwan. Manphool PW 7, Sanwatram PW 1 and Jalesingh PW 2 are the Motbir witnesses. Sanwatram PW 1 and Jalesingh PW 2 turned hostile. Sitaram PW 5 is the Constable who took the sealed articles to the Forensic Science Laboratory for examination. 9. There is no dispute that Balwan died on account of injuries which were found on the dead body by Dr. Subhash Singh PW 8 who conducted the post mortem examination. Sanwatram PW 1 and Jalesingh PW 2 turned hostile. Sitaram PW 5 is the Constable who took the sealed articles to the Forensic Science Laboratory for examination. 9. There is no dispute that Balwan died on account of injuries which were found on the dead body by Dr. Subhash Singh PW 8 who conducted the post mortem examination. There were as many as 7 injuries and all of them were ante mortem. Injury No. 2 to 7 were simple and injury No. 1 which was in the nature of lacerated wound 21/2 x 1/2 x Bone deep with fracture of the skulp bone right fronto-parietal region. On internal examination Dr. Subhash Singh PW 8 found subdural haematoms. In right parietal region with fracture of right parietal and frontal bone and the cause of death was neurogenic shock due to head injury. Dr. Subhash Singh PW 8 has proved the post mortem report Ex.P. 13. On 13.11.1992 he examined the injuries of Smt. Om Kala wife of Balwan and found a bruise 4"x 1" on the right scapular region. This injury according to the Doctor Subhash Singh was simple in nature and caused by a blunt weapon. On 12.11.92 he examined the injuries of Keshra Ram and found a bruise 6" x 1" on left genital region. This is a reverse simple and caused by blunt weapon. Learned counsel for the appellants has not disputed that Balwan died on account of injury No. 1 which was on his head. 10. In order to connect the appellants with the alleged crime the prosecution has relied upon the testimony of Keshra Ram PW 3, Bhagchand PW 4 and Smt. Om Kala PW 6. If the testimony of these witnesses is held to be reliable then the prosecution story will stand proved. According to the prosecution the occurrence took place on 12.11.92 at 6 p.m. Smt. Om Kala PW 6 who is the wife of the deceased has deposed that on the date of occurrence in the evening she was accompanied her husband and while she alongwith her husband was going to her village, Fateh Singh, Bhagaram, Ballaram and Lalaram attacked her husband. Fatehsingh and Ballaram were armed with lathis, Lalaram and Bhagaram were armed with Jelis and Fatehsingh inflicted a lathi blow on her husbands head. Fatehsingh and Ballaram were armed with lathis, Lalaram and Bhagaram were armed with Jelis and Fatehsingh inflicted a lathi blow on her husbands head. On receiving the lathi blow on the head her husband fell on the ground and the remaining assailants inflicted 8 to 10 lathis blows on her husbands. Smt. Om Kala PW 6 has added that when she raised an alarm she was also given a lathi blow by Fateh Singh. On receiving the blow she too fell down. At that time Keshra Ram who was near the place of occurrence came to the spot and he was also attacked by Bhaga. After that Bhaga (Bhagchand PW 4) came to the spot and then all the four assailants went towards the village. It is further added by Smt. Om Kala PW 6 that her husband was carried in a cart to the house and thereafter he was taken to the Hospital in a Jeep. Her husband had become unconscious on account of the Injury on his head and he did not regain his senses and expired at about 1 p.m. in the Hospital. It Is also stated by Smt. Om Kala that her injuries were examined by the Doctor. In her cross-examination she had denied the suggestion that at the time of occurrence there was a distance of 2 to 3 Kila between her and her husband. She has also denied the presence of Keshiram at the spot at the time of occurrence. Regarding the appearance of the accused she stated that the accused emerged from the field of Nekiram in which Erand plants were standing and she cannot tell whether they had reached that place from the village or not. She could not tell as to who was the author of injuries other than the injury on the head found on her husbands body. Regarding her husbands head injury she categorically stated that it was caused by the appellant Fateh Singh. There is nothing in the cross-examination of this witness to check her credit. 11. Keshra Ram PW 3 has supported the prosecution story by deposing that at the time of occurrence he was grazing the revad behind the boundary line of the field of Neki Master. There is nothing in the cross-examination of this witness to check her credit. 11. Keshra Ram PW 3 has supported the prosecution story by deposing that at the time of occurrence he was grazing the revad behind the boundary line of the field of Neki Master. At that time he heard hue and cry and when he reached the spot he saw that Fateh Singh, Bhagaram, Lalaram and Balaram were beating Balwan and his wife, who were at that time coming from the field. According to this witness Fateh Singh and Balaram were armed with lathis and Bhagaram and Lalaram were armed with Jelis made of iron and when he intervened Bhagaram inflicted a Jeli blow on his body and when Om Kala tried to protect her husband she was also beaten. He supported the prosecution version by adding that Balwan was taken to his house and thereafter a Jeep was brought and in that Jeep Balwan was taken to the Hospital at Bhadra and he was admitted there. Balwan did not regain his senses till his death. Kesra Ram has proved the FIR Ex.P. 5 and added that his injury as well as the injuries of Smt. Om Kala were examined by Doctor. In his cross-examination he has stated that he had seen the occurrence while he was standing in the field where his revad was grazing. Regarding the injury inflicted by Fateh Singh on the head of the deceased he has stated that when he went to spot he saw Fateh Singh inflicting a lathi blow on the head of Balwan. There appears to be some doubt whether the injury No. 1 found on the head of the deceased was inflicted in the beginning or it was inflicted during beating by the appellants, because Keshra Ram PW 3 has stated that before his reaching at the spot the assailants had started beating the deceased. 12. We have carefully considered the statement of PW 3 Keshra Ram. His statement that he could see the appellants when they were inflicting the blows on the deceased from the place where he was grazing his revad does not appear to be open to any doubt. Therefore, his testimony can be relied upon and he deserves to be regarded as a trust worthy witness. 13. Bhagchand PW 4 is another eye-witness of the occurrence. Therefore, his testimony can be relied upon and he deserves to be regarded as a trust worthy witness. 13. Bhagchand PW 4 is another eye-witness of the occurrence. According to him on the date of occurrence in the evening he was going to the village from his field. At that time on the tiba wife of Balwan was raising hue and cry. That tiba was to the west of the field of Neki Master. Bhagchand PW 4 has stated that Balwan was being beaten by Fateh Singh, Bhaga Ram, Balaram and Lala Ram and he saw this occurrence when he was at a distance of about 4 kila. At that time Keshra Ram and wife of Balwan were present at the scene of occurrence and when he reached the scene of occurrence he found Balwan lying on the ground in an unconscious condition and the assailants by that time left the place of occurrence. He supported the prosecution version that Balwan was taken to the village and thereafter to the Hospital. 14. We have carefully considered the statement of this witness and we are of the opinion that his statement is quite natural and trust worthy because he saw the occurrence while he was at a distance of 4 kila. He could not have seen clearly as to who inflicted the injury on the head of the deceased and he appears to have truthfully stated that he could not tell as to who was the author of the injury inflicted on the head of the deceased. If this witness would have been a false witness he could have easily stated that the injury No. 1 found on the head of the deceased was inflicted by the appellant Fateh Singh in his presence. 15. For the reasons stated above, the testimony of Keshra Ram PW 3, Bhagchand PW 4 and Smt. Om Kala PW 6 appears to be trust worthy and it is sufficient to prove that the appellants attacked Balwan and inflicted the injuries on him with lathis and Jelis and the injury No. 1 which caused the death of the deceased was given by Fateh Singh. 16. In their statements recorded under Section 313 Cr.PC the appellants had denied the occurrence. Appellant Bhaga Ram has alleged that he had mortgaged his land with Lalaram. 16. In their statements recorded under Section 313 Cr.PC the appellants had denied the occurrence. Appellant Bhaga Ram has alleged that he had mortgaged his land with Lalaram. After redemption of the mortgage the land was mortgaged with Fateh Singh, that there was some dispute about the land between the prosecution witness Bhagchand (PW 4), Lala Ram (appellant) and Balwan (deceased). Therefore, Bhagchand has fabricated this false case against him. Appellant Balaram in his statement under Section 313 Cr.PC denied the occurrence and stated that on account of litigation about the land between him and his brother and Bhagchand, Bhagchand has instituted this false case against him. Appellant Fateh Singh in his statement under Section 313 Cr. PC alleged that on account of dispute about the land between Bhag Chand and Lala Ram Bhagchand has falsely implicated him in this case. Lala Ram has in his statement under Section 313 Cr.P denied the occurrence and stated that Bhagchand got him implicated falsely in this case. The denial as well as the defence version given in the statements recorded under Section 313 Cr.PC has not been substantiated by evidence nor it appears to be probable. Having regard to the testimony given by Keshra Ram PW 3, Bhagchand PW 4 and Om Kala PW 6 whose trust worthiness has not been shaken during the cross-examination and whose testimony is corroborated by the FIR which in the facts and circumstances of the case was lodged without any delay. In our opinion the learned Additional District & Sessions Judge, Nohar rightly came to the conclusion that injury No. 1 found on the head of the deceased was inflicted by appellant Fateh Singh and the remaining injuries found on the body of the deceased as well as on the body of Keshra Ram and Smt. Om Kala were inflicted during the beating given by the appellants and that the appellants had reached the spot together and they shared a common intention. 17. So far as the gravity of the act of the appellants is concerned out of the 7 injuries found on the body of the deceased only one was grievous and all others were simple. The grievous injury (injury No. 1) found on the head of the deceased was caused by a blunt weapon and the cause of death was neurogenic shock. The grievous injury (injury No. 1) found on the head of the deceased was caused by a blunt weapon and the cause of death was neurogenic shock. The injury inflicted on the body of Smt. Om Kala PW 6 and Keshra Ram PW 3 were also simple. The weapons used by the appellants were lathis and Jelis and it has come in evidence that Jelis were not used as a sharp edged weapon but they were used like lathis. All these circumstances persuade us to come to the conclusion that the appellants did not intend to cause the death of the deceased nor they intended to cause any such injury as was likely to cause death of the deceased. All that can be said is that when the appellants attacked the deceased they intended to cause him simple injuries with lathis and Jelis and during the occurrence the appellant Fateh Singh gave a lathi blow on the head of the deceased and that solitary blow was responsible for the death of the deceased. Under these circumstances, it is difficult to say that all the appellants shared the intention of causing the death of the deceased or of causing such injury to the deceased as was likely to cause his death. Appellant Fateh Singh, however, appears to have committed the offence punishable under Section 304 Part II IPC because he inflicted a lathi blow on the head of the deceased. It must be said that he had the knowledge that his act of inflicting the lathi blow on the head of the deceased was likely to cause his death. Since we have come to the conclusion that the appellant Bhaga Ram, Balaram, Lalaram did not share the common intention of causing death of Balwan as there was no such common intention, the appellants Bhagaram, Balaram and Lalaram cannot be held guilty under Section 302 or 304 Part II read with Section 34 IPC. Their act was at best punishable under Section 323 read with Section 34 IPC. For the above mentioned reasons this appeal deserves to be allowed partly. Conviction of the appellant Fateh Singh under Section 302 IPC and the conviction of appellants Bhagaram, Balaram and Lalaram under Section 302 read with Section 34 IPC deserves to be set aside. Their act was at best punishable under Section 323 read with Section 34 IPC. For the above mentioned reasons this appeal deserves to be allowed partly. Conviction of the appellant Fateh Singh under Section 302 IPC and the conviction of appellants Bhagaram, Balaram and Lalaram under Section 302 read with Section 34 IPC deserves to be set aside. Appellant Fateh Singh is, however, found guilty of the offences punishable under Section 304 Part II IPC and he deserves to be convicted thereunder. Conviction of the appellants under Section 323 read with Section 34 IPC deserves to be maintained. 18. In view of the above reasons the conviction as well as sentence imposed on appellant Fateh Singh under Section 302 I.P.C. is set aside. Fateh Singh is convicted under Section 304 Part II I.P.C. and he is hereby sentenced to undergo rigorous imprisonment for five years and to pay a fine or Rs. 500/- and to undergo rigorous imprisonment for one month for default in payment of fine. His conviction as well as sentence under Section 323 read with Section 34 I.P.C. is maintained Conviction as well as sentence imposed on the appellants Bhagaram, Balaram and Lalaram under Section 302 read with Section 34 I.P.C is hereby set aside and their conviction and sentence under Section 323 read with Section 34 I.P.C. is maintained.Appeal Partly allowed. *******