Judgment:
Kanta Bhatnagar, J.
1. Anil Sharma and Yogesh, the two appellants were tried for the charges Under Sections 147.148.302,302/34.302/149,323,323/34 and 323/149 I.P.C. by the Sessions Judge, Bahswara. Vide judgment dated August 21, 1987 the learned Judge convicted Anil Sharma Under Section 147 and 323 I.P.C. and sentenced to him one years R.I. and a fine of Rs.500/- in default of payment of fine to undergo six month's R.I. on dthe first count and one year's R.I. and a fine of Rs. 500/- in default of payment of fine to undergo Six month's R.I.Yogesh appellant was convicted Under Sections 302,148 and 313/149 I.P.C. and was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to undergo fifteen days R.I. on the first count, one years R.I. on the second count and six months R.I. on the third count with an order that the substantive sentences of the two appellants shall run concurrently.
2. The remaining nine co-accused were held guilty Under Sections 147 and 323/149 I.P.C. They were how ever given benefit under the Probation of Offenders Act and were bound down for maintaining peace and be of good behaviour for a period of one year. Appellant Anil Sharma and Yogesh have preferred two separate appeals against their conviction and sentences. As the two appeals arise out of the same judgment, we propose to dispose them of by a common judgment.
3. On November 18, 1983 Virendra Singh Chobisa's foot got pressed by the foot of Mahendra Singh (P.W.7) while he was coming out of the office of the Government College, Banswara after verifying the Form. Virendra Singh hurled abuses to him at which Mahendra Singh slaped him. That caused annoyance to Virendra Singh and his companions and they started moving with Lathis. On the next day i.e. on November 19, 1983 there was a Camp consisting of forty-fifty students for Rastriya Samaj Sewa [N.S.S.] and Shri S.M. Khan and J.C. Puri (P.W. 24) were the Professos Incharge of the camp. On November 20, 1983 at about 12.30 or 12.45 p.m. the students of the Camp were taking lunch in the Varandah of the Laboratary. Pulshpendra Singh (P.W.2) Shivendra Singh (P.W.3), Mahendra Singh (P.W.7), Prithvi Pal Singh (P.W.8) Surendra Singh (P.W.9), Bhanwar Singh (P.W. 10) and Rajendra Singh (P.W.11) were sitting in one row and in the front row Dharmendra Singh deceased was sitting. At that time eight or ten students armed with lathis and wire-chain went there. Anil Sharma asked them to come out. When they did not come out, the miscreants entered the varandah. Anil Sharma inflicted a Lathi blow to Dharmendra Singh. Deepak threw stone towards Dharmendra. Dharmendra fell down. Anil Sharma inflicted a lathi blow to Shivendra Singh (P.W.3). On account of this there was stamped and the students of the Camp tried to run away hither and thither. As soon as Dharmendra Singh got up to run away, Yogesh plunged the knife into his chest. Charmendra Singh cried and fell down. Yogesh ran away from there along with the knife. Pushpendra Singh (P.W.2), Shivendra Singh (P.W.3), Rajendra Singh (P.W.11), Prithvipal Singh (P.W 8), Surendra Singh (P.W.9), Bhanwar Singh (P.W.10) and Mahendra Singh (P.W.7) and others took Dharmendra Singh in unconscious condition in a Tempo to the hospital where the Doctor declared him dead. Mahendra Singh son of Moti Singh (P.W.7) and Pushpendra Singh son of Hadmat Singh went to the police Station Banswara and lodged the oral report which reduced into writing is Ex.P/2. Case was registered against the appellants and others. The post--mortem-examination of the dead body of Dharmendra Singh was conducted by Dr. Balmukand Upadhyay, Medical Jurist, M.G.Hospital, Banswara. The Doctor prepared the post-mortem examination report Ex.P/16. He noted following injuries on the dead body:
(1) Abrasion on Lt. Vertebra 3/4'x 1/2' i.e. on spinus process.
(2) Abrasion in Lt. lower lateral side of chest 2' x 1 1/2' epideus pealed off.
(3) Antemortem Transverse incised wound wedge shaped on 5th intercostal space just outer to Lt. mid clavicular line '--'wedge edge of wound towards sternum side of size 2 cm x 1 cm x cavity deep (with effusion of blood in retrosternal parts) going towards medial side & slightly towards Upperside of thoracic cavity outer end of wound is 2' lower to Lt. Nipple area on dissection just outer to sternum the medial and of wound is.
According to the Doctor injuries No.1 and 2 might have been caused while, shifting the dead body from one place to another. Injury No.3 was ante-mortem and could be caused by knife. Injurg No. 3 according to the Doctor was sufficient to cause death in the ordinary course of nature.
4. The Doctor also examined Shivendra Singh on the same day and noted following injury on his person:
Red bruise faint at the medial border of crest of spine of left scapula 1 3/4' x 1/2' transversly situated simple-blunt.
The injury report is Ex. P/4.
5. Azad Sharma (P.W.25), Station House Officer, Kotwali Banswara went to the site and proceeded with the investigation. Yogesh appellant was arrested on May 2, 1984 vide Memo Ex.P/26 and Anil Sharma on January 23, 1984 vide Memo Ex.P/12. In pursuance of the information furnished by Yogesh appellant one knife was recovered and in pursuance of the information furnished by Anil Sharma one stick was recovered.
6. Upon completion of necessary investigation charge sheet against the two appellants and others was filed in the court of Judicial, Magistrate Banswara. The learned Magistrate committed the case, to the Court of Sessions. The learned Judge chargesheeted the appellants and on their denial of the charges, proceeded with the trial. In their statements Under Section 313 of the Code of Criminal Procedure, the apellants denied the allegations levelled against them and stated that because of the unpleasent relations between the two groups they have been falselly implicated. Five defence witnesses were examined to State that the appellants were not amongst the persons who attacked the complainant party on the day of the incident. The learned Judge placed reliance on the prosecution witnesses and passed the judgment under appeal.
7. We heard Mr. N.N.Mathur, learned counsel for Yogesh appellant. Mr.S.K.Goel, learned counsel for appellant Anil Sharma and Mr. Vijay Singh Chaudhary, learned Public Prosecutor for the State and carefully examined the record of the case.
8. Mr. N.N.Mathur, learned counsel for appellant Yogesh has assailed the findings of the learned trial Judge on a number of grounds. It has been argued that the F.I.R. could not have been such a detailed one within the short span of the occurrence had there been no intention to implicate a number of students residing in Rajput Hostel. It has been strenuously contended that the eye witnesses do not inspire confidence and there are material contradictions in their statements before the Police and statements at the trial. It has been stressed that all the interested witnesses have been examined where as independent witnesses who have been examined from the defence side were not produced from the prosecuttion side because of the fear of the true facts coming on record. The findings of the learned trial Judge has also been assailed on the ground that S.M.Khan Professor Incharge of the Camp has not been examined despite his presence being admitted at the site and Jagdish Chandra Puri (P.W.24) who has given true statement has not been believed because his statement does not implicate the appellants and the other accused.
9. The incident is said to have taken place on November 20,1983 at 1.00 P.M. at Banswara Government College. The F.I.R. has been lodged by Mahendra Singh (P.W.7) accompanied by Pushpendra Singh (P.W.2) on November 20, 1983 at 1.30 P.M. at Banswara Police Station. If the witnesses were there then there was nothing unnatural on their narrating all the facts before the Police at the time of furnishing information.
10. Mr. Mathur has drawn our attention to the statement of Mahendra Singh that the information was oral and submitted that Pushpendra Singh (P.W.2) has stated that there was rough draft of the information and then formal report was scribed. Even if it was so, in the absence of any question to Mahendra Singh regarding any rough note being prepared the F.I.R. Ex.P/2 on the basis of which Ex.6A the formal report was chalked out cannot be looked with suspicious regarding its contents.
11. True it is that the prosecution witnesses on whom the Court has placed reliance were the students residing in Rajput Hostel and there is evidence about Mahendra Singh (P.W.7) son of Moti Singh informant having a quarrel two days prior to the incident with Virendra Singh Chobisa. This is also true that the two witneses viz. Anil (P.W.15) and Sardar Singh (P.W.18) have turned hostile to the prosecution. But that would not in itself be sufficient to discredit the testimony of seven witnesses whose presence at the time in the Varandah while taking the food is not only proved by their own statements but also by the site plan Ex.P/8 wherein it has been shown as to which witness was sitting where while taking food and where the deceased Dharmendra Singh was.
12. All the witnesses on whom the Court has placed reliance have given a categoric description of how the group of students went near the Varandah and asked the students taking food there to come out and on their not doing so the miscreants throwing stones and Anil Sharma inflicting lathi blow to Dharmendra Singh and Shivendra Singh and Yogesh causing knife injury to Dharmendra Singh. Shivendra Singh's injury has been corroborated by the medical evidence. This is correct that the Doctor has not stated about any injury by any Lathi or stick on the person of Dharmendra Singh though the prosecution case is that Anil Sharma has inflicted lathi blow to him. The witnesses have stated that Lathi blow was inflicted with force by Anil Sharma on Dnarmendra Singh which hit his parietal region and he fell down because of that forceful blow. The Doctor has stated that in case, there would have been any forceful blow with Lathi, there would have been either scratches or abrasions. The Doctor has noted only injury on the dead body of Dharmendra Singh which is by sharp edged weapon on the chest. Even if injury by Anil Sharma said to have been inflicted by Lathi to Dharmendra Singh is not proved still it will not demolish the case against Yogesh against whom there is ample evidence that when there was stamped. Yogesh inflicted knife blow on the chest of Dharmendra Singh and Dharmendra Singh fell down. This established that Dharmendra Singh succumbed to the chest injury by sharp edged weapon. Anil (P.W 15) and Sardar Singh (P.W18) have also supported the prosecution to the extent of the miscreants asking the persons taking their food there to go out. They have how ever declined to have identified any body there and have been declared hostile by the prosecution. In the cross examination they have stated that none of the accused present in the Court was there in the crowed. Anil has resiled from his Poloice Statement Ex.P/11. Both these witnesses do not impress as being witnesses of truth. Jagdish Chandra Puri (P.W.24) Incharge of the camp was an independent witness. He has stated about the begining of the quarrel i.e. a group of persons coming there and asking the persons taking food inside to go out and their denying to do so. He has how ever not claimed to be an eye witness to the subsequent event and stated that he ran away from there and only heard that Dharmendra Singh has been stabbed. The witness in cross-examination has admitted that he was knowing Deepak Joshi. Anil and Yogesh before hand and has not seen these persons there at the site on the day of the occurrence. Mr.N.N.Mathur, has laid much emphasis on this part of the statement of the witness and argued that he was an independent responsible person and there is no reason to disbelieve him when he stated that Yogesh, Anil and Deepak were not amongst the miscreants.
13. The learned Public Prosecutor submitted that the witness might have obliged the accused. We do not consider the witness a Her. But at the same time we do not feel inclined to place reliance on his testimony alone and discard the testimonty of seven others who have given the details of the incident and were there since the begining of the incident till its end for the ensuing reason.
14. Jegdish Chandra Puri (P.W.24) has not claimed to be an eye witness to the infliction jof knife blow by Yogesh as he had run away from there. The story given by the eye witnesses believed by the learned trial Court is that when Dharmendra Singh after falling down on account of Lathi blow tried to get up an run-away, Yogesh who was outside the Varandah stabbed him with knife. This is not the prosecution case that Yogesh had entered the Varandah so as to be visible to Jagdish Chandra Puri and in case he could not see him, there was nothing strange, but on that count alone. Yogesh cannot get the benefit.
15. We agree with the learned counsel for the appellants that Professor sahid Mir Khan was an important witness in the matter. He was, as the ordersheet of the trial court shows, present on two hearings but he could not be examined. He was present third time also but for the reasons best known to the prosecution, he was droppped.
16. Mr. Mathur vehemently argued that this important responsible witness was with-held by the prosecution because of the fear of the true facts coming on record and as such adverse inference should be drawn against the prosecution. To substantiate its case, Mr.Mathur referred to the cases of Ishwar Singh v. The State of Uttar Pradesh : 1976CriLJ1883 and Bir Singh and Ors. v. The State of Uttar Pradesh : 1978CriLJ177a where in importance of examining independent witness has been emphasized.
17. We agree with Mr. Mathur that witness essential to disclose the true picture should be examined. We also agree that Professor Sahid Mir Khan was a responsible independent person and if examined, would have stated important facts. How ever on this count alone prosecution case cannot be brushed aside because Jegdish Chandra Puri(P. W.24) falling in the same category has been examined by the prosecution. Jagdish Chandra Puri has stated that when there was stampede, he and other students and Professor Khan ran away from there. Thus Professor Khan would not have been in a position to state more than what Jagdish Chandra Puri had stated.
18. Upon careful examination of the evidence on record we are of the opinion that the learned trial Judge has rightly placed reliance on the statements of Pushpendra Singh (P.W.1) Shivendra Singh (P.W2), Mahendra Singh (P.W.7), Prithvi Pal Singh (P.W.8), Surendra Singh (P.W.9), Bhanwar Singh (P.W.10) and Rejendra Singh (P.W.11) about Yogesh being the author of the sharp weapon injury on the chest of Dharmendra Singh.
19. Mr. Mathur next argued that in case prosecution case against Yogesh being the author of the injury of Dharmendra Singh is believed still the case would not fall within the ambit of Section 302,I.P.C. and he at the most can be liable to be punished Under Section 304 Part-II, I.P.C. The learned counsel referred to a number of circumstances to substantiate his argument. Firstly the F.I.R. stated to have been drawn on a rough paper not being brought on record; secondly, there being a suddent stampede prior to the knife injury sustained by Dharmendra Singh, it cannot be said that he assailant wanted to cause the injury on that particular part of the body to the victim. To substantiate his arguments Mr. Mathur referred to a number of authorities wherein the case of a single injury by knife or other sharp edged weapon in view of the facts and circumt ances of the case, the accused were held guilty Under Section 304 Part-II.I.P.C. and not Under Section 302, I.P.C.
20. In order to ascertain the intention of the assailants to commit the particular crime in the particular way the surrounding circumstances are to be taken into consideration. The incident prior to the occurrence was between Mahendra Singh and Virendra Singh. While considering the evidence this fact cannot be ignored that all the eye witnesses were of the same group i.e. they were students residing in the Rajput Hostel and Dharmendra Singh was also living in that Hostel. The prosecution witnesses have admitted that there was no enmity between Dharmendra Singh and Yogesh. The circumstances brought on record also do not suggest that Yogesh was the leader of the Gang or had initiated the quarrel. There is different type of version regarding the knife being with him at the time of its use. Some witnesses have stated that Yogesh had caused injury with the knife he was having with him when he came there. Pushpendra Singh (P.W.2) has categorically stated that when Dharmendra Singh tried to run away, Yogesh took out the knife from his pocket and caused the injury. This shows that Dharmendra Singh was not having the knife in his hand where as others are said to be having Lathis and wire with them. If he was having a knife in his pocket then it cannot be said that he had shown the knife in order to create a terror to the complainant's party or the victim. He had not even ascended the Varandah. There was a sudden stampede and people were running from one side to another. It was at that spur of moment that Yogesh is said to have caused injury to Dharmendra Singh. This being the position there is force in the argument of Mr. Mathur that he might not have actually wanted to cause injury on the chest, the vital part of the body and accidently it might have been caused on the chest. This is also evident that Yogesh did not repeat the blow. The injury by knife does not appear to have been caused under any pre-conceived plan.
21. In the case of Gulam Hussain v. State 1986 (II) R.Cr.C 86 in the absence of premeditation, incident taking place at the spur of moment and by thoughtless mind on a trivial matter and there being only two injuries and one out of them being on the chest, it was held that the fact of guilty intention or intention to cau se particular injury was missing and the assailant was as such held guilty Under Section 304 part-II and not Under Section 302.I.P.C.
22. In the case of Hari Ram v. State of Haryana : 1983CriLJ346 , the accused had thrust a 'jelli' into the chest of the deceased in the heat of hot altercation and the case was held to fall Under Section 304 I.P.C.
23. The learned Public Prosecutor did not advance any argument regarding the nature of the offence but submitted that the parties were inimical and there was an unlawful assembly, as such no interference in the findings of the trial Court is required. While considering the case of unlawful assembly it is also to be taken note of as to what could have been the intention of the members of the unlawful assembly. On the face of it, it may appear that the aggresive party had called the persons taking food to come out and might have the intention to give a beating but that will not mean that Yogesh who had no enmity with any particular person had any incention to commit anybody's murder. As observed above, it wan after the stampede that he had taken out the knife from his pocket and caused injury to Dharmendra Singh, but what their exact position was at that time is not known. The statements of the eye witnesses are that there was some altercation between the two groups. All the witnesses being of the same group, the real origin of the incident does not appear to have been brought on record correctly. The statements of the eye witnesses do raise a suspicion about the origin of the quarrel. It appears that they are concealing some facts. In such cirumstances it cannot be said with certainty that in stampede, the blow by Yogesh was exactly meant to be on the chest of the victim. It cannot be said that he intended to cause the injury on the particular part of the body because at that time there was stampede and everyone was running away hither and thither.
24. In view of this discussion, Yogesh appellant cannot be held guilty of intention to cause murder or intention to cause such bodily injury leading to the death of Dharmendra Singh. How ever, he using the knife with such a force that the injury caused resulted indeath, can be said to have knowledge that his act would be likely to cause bodily injury that may cause death. His case, therefore, falls within the ambit of Section 304, Part-II, I.P.C.
25. Mr. S.K.Goel, learned counsel for appellant Anill Sharma adopted the arguments of Mr. Mathur regarding the veracity of the statements of the alleged eye witnesses and argued that the case against Anil Sharma is not at all made out by the prosecution. According to Mr. Goel, Rajendra Singh (P.W.11) has not stated about Anil Sharma inflicting Lathi blow to Dharmendra Singh. Mr. Goel referred to the medical evidence regarding the injuries of Dharmendra Singh and emphatically argued that the prosecution case was that Anil Sharma inflicted lathi blow with force on the neck of Dharmendra Singh and the Doctor has noted no injury on the neck which clearly shows that prosecution witnesses were bent upon falsely implicating Anil Sharma. This being the position Mr. Goel, argued that if the witnesses could toll a lie for the alleged act of Anil Sharma for one person there was nothing strange for them to show him the author of the injury caused to Shivendra Singh.
26. The learned Public Prossecutor referred to the case of Punjab Singh v. State of Haryana : 1984CriLJ921 wherein it was held that medical evidence cannot override the direct evidence about assault by particular weapon when direct evidence is satisfactory and reliable. Regarding the contradictions in the statements of the witnesses he referred to the cases of Sampat Tatyada Shinde v. State of Maharashtra : 1974CriLJ674 and Badri and Ors. v. State of U.P. : 1975CriLJ1739 and submitted that some, contradictions are natural in truthful witnesses and on that count alone the whole evidence cannot be discarded.
27. While discussing the case of Yogesh appellant we have observed that minor discrepancies here and there would not be sufficient to discard the testimony of the witnesses in toto. From the medical evidence, it appears that prosecution witnesses have tried to overimplicate Anil Sharma regarding his use of Lathi so far as the blow to Dharmendra Singh is concerned. How ever, there is ample evidence to substantiate the prosecution case that he was the author of the simple injury sustained by Shivendra Singh.
28. Mr. Goel next argued that even if the prosecution case regarding the injury of Shivendra Singh at the hands of Ajit Singh is believed, still his case being at par with the case of those whom benefit under the provisions of probation of offenders Act is extended same treatment should be given to him.
29. So far as the case Under Section 1471.P.C. is concerned the case of Anil Sharma stands on the same footing as that of the other co-accused. The case against him is held to be aggrevated because of the evidence that he asked the complainant party to come out but in the Court Mahendra Singh (P.W.7) and other witnesses have named Yogesh, Deepak and Anil Sharma specifically as the persons asking the students to come out. Most of the witnesses have stated that all the aggressors went there and asked the Rajput Students to come out. Thus the offence Under Section 147 I.P.C. against accused Anil Sharma falls in the same category as that against the other co-accused. The co-accused have been held guilty Under Section 323/149 I.P.C. Whereas Anil Sharma being the author of the injury to Shivendra Singh has been held guilty Under Section 323 I.P.C. simplicitor. The injury of Shivendra Singh was red bruise faint at the medial border of crest of spine of left scapula 1.3/4'x1/2'transversly situated simple blunt. The weapon said to have been recovered from Anil Sharma was an ordinary stick. The learned Judge while granting benefit under the Probation of Offenders Act to the nine co-accused has taken into consideration the fact that at the time of the incident their age was below 21 years. Anil Sharma was also 21 years of age at the time of the incident and now sending him to Jail after the lapse of the period of seven years would spoil his life. We are, therefore, of the opinion that this being has first offence and in view of the nature of the injury, he also should be given benefit under the Probation of Offenders Act.
30. Consequently both the appeals are partly allowed. Conviction and sentence of Yogesh appellant Under Section 302 I.P.C. is set aside. He is instead of convicted Under Section 304 Part-II.I.P.C. and sentenced to eigth years R.I. and a fine of Rs. 500/- in default of payment of fine to undergo six months R.I. His conviction and sentences for the other charges are maintained with the order that all the substantive sentences shall run concurrently. Conviction of Anil Sharma appellant Under Section 147 and 323,I.P.C. is maintained. The sentences awarded on these counts are however set aside and he is given benefit under Probation of Offenders Act and instead of being sentenced he is dicectcd to furnish personal bond within two monthes for an amount of Rs.3000/-with one surety in the like amount to the satisfaction of the Sessions Judge, Bans wara, to be of good behaviour and keep peace for a period of one year.