Amaresh Ku. Singh, J.
1. Heard the learned counsel for the appellants and the learned Public Prosecutor.
2. This appeal is directed against the judgment dated 13th September, 1979 passed by the learned District and Sessions Judge, Jalore in Sessions Case No. 13/79 State v. Kania. By the aforesaid judgment accused appellants Kania, Bagia s/o Dhanna Bagia s/o Samela, Bhuba, Bholia and Modia were convicted under Sections 147 and 302 read with 149 of the IPC and each of them was sentenced to imprisonment for life and a fine of Rs. 1000/- and further rigorous imprisonment for six months for default in payment of fine for the offences under Section 302 read with 149 of the IPC and rigorous imprisonment for two years for the offence punishable under Section 147 of the IPC.
3. The facts of the case may be briefly stated as below :-
On 10th March, 1979 at about 10-30 a.m. Chhatar Singh s/o Bharat Singh gave a statement to the Station House Officer, Jalore at Government Hospital, Jalore. That statement was treated as First Information Report and the case under Sections 307, 147, 248 and 149 of the IPC was registered. According to the statement Ex-. P/5 of Chhatar Singh, on the previous night at about 8 p.m. Kesar Singh, Jeev Singh, Mod Singh, Shav Singh went to the Pole of Vishan Singh. They stayed there for about one hour and thereafter they proceeded towards the 'Chohata'. After about half an hour, Chhatar Singh went to 'Seri' and at that time he heard the cries of Mangu Singh. He was crying ^^ekjs js ekjs j** Chhatar Singh rushed towards Mangu Singh and saw that in front of the houses of Prema Raibari and Sadwana Raibari, Kania s/o Rupa, Bholia s/o Bheema, Bagia s/o Samela and Bhuba s/o Chaina were assaulting Mangu Singh with lathies. Mod Singh s/o Guman Singh was standing in the neighborhood, Bhav Singh and Jab Singh also reached the place of occurrence. Chhatar Singh, Bhav Singh and Jab Singh intervened in order to protect Mangu Singh. After that they found that Mangu Singh had two injuries on his head and blood was coming out of his injuries. Mangu Singh was taken to his house in a cart and Chhatar Singh gave information about the incident to Mangu Singh's wife. Mangu Singh was then taken to Government Hospital, Jalore in an unconscious condition. In his statement Ex. P/ 5 Chhatar Singh revealed that the accused persons had grazed the animals in the crop of Mangu Singh and Mangu Singh had instituted a First Information Report and on account of that report the accused persons developed enmity and as a result of that enmity they inflicted injuries to Mangu Singh.
4. During investigation Mangu Singh expired. After conducting the investigation the police submitted that charge-sheet under Section 173 of the Criminal Procedure Code against the accused persons alleging the commission of offences, punishable under Sections 302, 147 and 148 of the IPC. The learned Chief Judicial Magistrate, Jalore committed the case to the learned District and Sessions Judge, Jalore. Charges under Section 302 and in the alternative 302 read with 149 as well as under Section 147 of the IPC were framed against all the six accused persons, who pleaded not guilty to the charges.
5. The prosecution examined as many as 16 witnesses namely, Dr. Bansilal Rai P.W. 1 Chunia P.W. 2, Misra P.W. 3, Balwant Singh P.W. 4, Dr. B. L. Bishnoi P.W. 5, Bhawani Singh P.W. 6, Chhatar Singh P.W. 7, Prem Singh P.W. 8, Mohan Lal P.W. 9, Arjun Singh P.W. 10, Budharam P.W. 11, Jala Singh P.W. 12, Mor Singh P.W. Yk, Kesar Singh P.W. 14, Jeev Singh P.W. t5 and Ganesh Ram P.W. 16 in support of the prosecution case. Roop Singh D.W. 1 was examined Tu defence. After hearing the arguments of both the parties and considering the evidence produced by the prosecution as well as the defense, the learned District and Sessions Judge, Jalore convicted the accused appellants under Sections 147 and 302 read with 149 of the IPC and sentenced them as mentioned above.
6. The learned counsel for the appellants has submitted that in this case the prosecution examined six eye-witnesses namely, Bhawani Singh P.W. 6, Chhatar Singh P.W. 7, Jala Singh P.W. 12, Mor Singh P.W. 13, Kesar Singh P.W. 14, Jeev Singh P.W. 15 and Jeev Singh P.W. 16 to prove that the accused persons constituted an unlawful assembly and in prosecution of the common object, jointly inflicted injuries on Mangu Singh. But out of six eye-witnesses, four witnesses namely Jala Singh P.W. 12, Mod Singh P.W. 13, Kesar Singh P.W. 14 and Jeev Singh P.W. 16have been declared hostile as they have not named the persons who inflicted injuries on Mangu Singh, and therefore, the evidence of these four witnesses does not implicate the accused persons. Regarding the evidence of Bhawan Singh P.W. 6 and Chhatar Singh P.W. 7, learned counsel for the appellants has submitted that these two witnesses are not of sterling worth and it was not possible for them to have identified the assailants as they have alleged and the evidence of these two witnesses is not sufficient to prove the charge against the accused persons beyond reasonable doubt. The learned counsel for the appellants has therefore, prayed that the appeal be allowed and the appellants be acquitted of both the charges. In the alternative, the learned counsel for the appellants has submitted that the act of the accused does not travel beyond the scope of Section 325 of the Indian Penal Code, because there is no evidence to prove that all the accused persons shared the common object of causing death of Mangu Singh nor there is any evidence to show that Mangu Singh was killed in prosecution of the common object of the assembly. On the other hand, the learned Public Prosecutor has supported the judgment of the learned trial Judge and prayed that the appeal be dismissed.
7. We have carefully considered the evidence produced by the parties and the rival arguments. The prosecution examined 16, witnesses before the learned trial Judge. Out of 16 witnesses produced by the prosecution, Dr. Bansi Lal Rai P.W. 1 is the doctor who examined the injuries of Mangu Singh after he was taken to Government hospital, Jalore, Dr. Bansi Lal P.W. 1 has proved medical report Ex. P/l, Dr. B. L. Bishnoi, P.W. 5 is the doctor who conducted the Post-Mortem Examination of the dead body of Mangu Singh and prepared the post-mortem examination report Ex. P/4. Bhawani Singh P.W. 6 and Chhatar Singh P.W. 7 are the eye-witnesses of the occurrence. Chhatar Singh P.W. 7 is the author of the First Information Report Ex. P/5. Both of them have supported the prosecution case and named the accused appellants in the statements made before the Court. Jala Singh P.W. 12, Mor Singh P.W. 13, Kesar Singh P.W. 14 and Jeev Singh P.W. 15 have been declared hostile because they have deposed that they could not identify the assailants. They have not given any evidence against the accused appellants, though, they have supported the prosecution case by deposing that Mangu Singh was assaulted by a group of Raibarees. Prem Singh P.W. 8 and Ganesh Ram P.W. 16 are the Police Officers who investigated the case. Mohan Lal P.W. 9 is the Police Officer who registered the case on the basis of First Information Report Ex. P.5. Arjun Singh P.W. 10 and Budharam P.W. 11 are the police constables, who carried the Malkhana articles to Forensic Science Laboratory, Jaipur. Chunnia P.W. 2, Misra P.W. 3 and Bal want Singh P.W. 4 are the witnesses of recovery of certain articles during investigation.
8. Bhawani Singh P.W. 6 and Chhatar Singh have given statements to the effect that at about 9.30 p.m. they heard the cries of Mangu Singh and they rushed to the place of occurrence and saw that Kania, Modia, Bagia, Bholia and Buba were collectively inflicting injuries to Mangu Singh with lathies and in consequence of those injuries Mangu Singh fell on the ground. They have added that Jab Singh and Bhav Singh had also reached the place of occurrence on hearing the cries and they along with Bhav Singh and Jab Singh persuaded the accused persons not to beat Mangu Singh. They have further added that when they attended to Mangu Singh and saw him in the light of matchstick, they saw that he had injuries on his right hand, leg and back and he was unconscious. After sometime his wife and sister also reached the spot and they were given the information about the incident. It is also stated by these witnesses that Mangu Singh was taken to his house in a cart and later on, he was taken to Government Hospital, Jalore. Regarding the source of light, Bhawani Singh P. W. 6 has deposed that there was moon-light. Singh has also given similar statement. The learned District and Sessions Judge, Jalore has carefully considered the statements of Bhawani Singh P.W. 6 and Chhatar Singh P.W. 7 and he came to the conclusion that these two witnesses are reliable and their version cannot be discarded on the ground that they could not have come to know about the incident on account of being far away from the scene of occurrence, he has also taken into consideraton the fact that the First Information Report was lodged in the morning of 1Oth March, 1979 without any unnecessary delay. We find no such infirmity in the reasoning of the learned District and Sessions Judge, as may justify taking a contrary view about the credibility of Bhawani Singh P.W. 6 and Chhatar Singh P.W. 7. In our opinion, both these witnesses are reliable, and their statements are supported by the First Information Report Ex. P/5. The fact that Jala Singh P.W. 12, Mod Singh P.W. 13, Kesar Singh P.W. 14andJeev Singh P.W. 15 have not named the assailants, cannot justify the conclusion that these two witnesses could not identify the assailants. The incident took place on a moonlight night and both these witnesses reached the scene of occurrence on hearing the cries of Mangu Singh and they not only witnessed the incident, they persuaded the accused persons not to continue beating Mangu Singh. We, therefore, find no reason to discard the evidence of Bhawani Singh P.W. 6 and Chhatar Singh P.W. 7. In our considered opinion, the learned District and Sessions Judge was right in placing reliance on the evidence of Bhawani Singh P.W. 6 and Chhatar Singh P.W. 7. We, therefore, hold that the prosecution has proved that the accused persons jointly assaulted Mangu Singh and inflicted injuries on him with lathies and in the facts and circumstances of the case, they must be said to have constituted unlawful assembly with the common object of assaulting Mangu Singh, who had lodged the report against the accused appellants at the Police Station for damage caused to his crop by grazing their animals. The charge under Section 147 of the Indian Penal Code is thus fully established against the accused persons and it is also established that the assault made on Mangu Singh was in prosecution of the common object of the unlawful assembly.
9. The next important question to be decided whether the act of the accused persons is punishable under Section 302 read with Section 149 of the Indian Penal Code. The prosecution has adduced evidence to prove that the accused persons damaged the crop of Mangu Singh by grazing their animals in his crop and when Mangu Singh lodged the First Information Report at the Police Station, the accused persons became annoyed and they assaulted Mangu Singh. The motive pointed out by the prosecution does not justify the conclusion that all the accused persons shared the common object of causing the death of Mangu Singh. However, it can be inferred without any hesitation that the accused persons must have intended to give him a beating with lathies as he had filed report against them at the Police Station.
10. According to testimony of Dr. Bansi Lal P.W. 1 Mangu Singh had as many as 7 injuries on his body, when he was examined by Dr. Bansi Lal. These injuries have been described in Medical Report Ex. P/l. His two injuries were in the nature of lacerated wound on the head and four injuries were in the nature of contusion on non-vital parts. 7th injury was in the nature of abrasion on the right fore-arm below elbow, and all the injuries were caused by blunt weapons. According to evidence of Dr. B. L. Bishnoi, P.W. 5 there were as many as 7 injuries on the body of Mangu Singh as given below :-
1. Lacerated wound 6 cm. x 2 cm. over right parietal region, oblique 13 cm. above right ear.
2. Lacerated wound 6 cm. x 2 cm. over vauld, oblique 12 cm. from middle of eye-brows.
3. Blue discolourization 18 cm. x 3 cm. On outer aspect of right thigh, oblique 8 cm. Below right iliac crest.
4. Blue discolourization 15c.m. x2c.m. on the outer aspect of right thigh, oblique 3 cm. Below injury No. 3.
5. Blue discolourization 8 cm. x 2 cm. On right gluteal region 2 cm. below right iliac crest.
6. Blue discolourization 7 cm. x 3 cm. On right thigh in its middle on the outer aspect.
7. Abrason 10c.m.x2c.m. on posterior aspect of right fore-arm longitudinal.
11. There was a fracture of both tables underlined above injury No. 1 and passing up to posterior margin of fore-arm and magnum, a little right to the mid-line. There was also fissured fracture of both tables a little left to the midlines suture underlined the aforesaid injury No. 2, 13 cm.' in length, oblique, passing up to 2 cm. above left supra arbital ridge. The injuries were anti-mortem in nature and they could have been caused with the lathies. Injury No. 2 according to Dr. B. L. Bishnoi P.W. 5 was sufficient in the ordinary course of nature to cause death and the cause of death was subdural (extra cerebral) hemorrhage leading to coma.
12. Since the prosecution evidence proves beyond reasonable doubt that the common object of the unlawful assembly constituted by the accused-appellants was to inflict injuries to him and in prosecution of that common object the accused appellants collectively attacked Mangu Singh and inflicted injuries on his body with lathies, each accused-appellant is liable to be punished under Section 149, I.P.C. for the acts done by the members of the unlawful assembly in prosecution of their common object. Out of 7 injuries found on the body of the deceased two injuries on the head resulted in fracture of the skull bone and serious damage to the brain and in the opinion of the Dr. B. L. Bishnoi injury No. 2 was by itself sufficient in the ordinary course of nature to cause death. The deceased was alone, there was no immediate cause of quarrel, he was helpless and he was attacked suddenly. In these circumstances, it must be held that every member of the unlawful assembly shared the common object of causing injuries to the deceased Mangu Singh with lathis and that every member of the unlawful assembly must have known that injuries are likely to be caused in the head of the deceased and they are likely to cause his death. In these circumstances, the injury Nos. I and 2 which proved fatal and which were sufficient in the ordinary course of nature to cause death, must be said to have been inflicted on the deceased Mangu Singh in prosecution of the common object of the unlawful assembly and every accused person must have known that such injuries are likely to cause his death. The offence committed in this case is murder as defined in Section 300 secondly and 300 thirdly of the Indian Penal Code, because the injuries were caused intentionally and injury Nos. 1 and 2 were grievous and the injury No. 2 was sufficient in the ordinary course of nature to cause death and the members of the unlawful assembly must have known that lathi injuries which the members of the unlawful assembly were causing was likely to cause the death of Mangu Singh. We, therefore, hold that each accused appellant is guilty of the offence punishable under Section 302 read) with Section 149, I.P.C.
13. For the reasons mentioned, the appeal deserves to be dismissed and is hereby dismissed. The appellants, namely, Kania s/o Roopa, Bagia s/o Dhana, Bagia s/o Samela, Bhuba s/o Chaina Bholia s/o Bhima and Modia s/o Bhalia are on bail. Their bail bonds are hereby cancelled. They are directed to surrender before the learned District and Sessions Judge, Jalore within 15 days to serve out the sentence awarded to them, failing which the learned District and Sessions Judge, Jalore shall issue non-bailable wan ant of arrest to compel their appearance and after their surrender or arrest, as .(he case may be, commit them to jail so that they may serve out the sentence awarded to them.