Judgment:
Sunil Kumar Garg, J.
1. This appeal has been filed by the above-named accused appellants against the Judgment and order dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh Camp Sangaria in Sessions Case No, 15/96 (95/95) by which he convicted the accused appellants for the offence under Section 307/34, IPC and sentenced each of them to undergo seven years' RI and to pay fine of Rs. 5000/-, in default of payment of fine, to further undergo three months' RI. By the same Judgment, the accused appellants were acquitted of the charges under Sections 324/34 and 325/34, IPC and further, another accused Krishna Singh was acquitted of all the charges framed against him.
2. It arises in the following circumstances :-
On 27-9-1995 at about 11,30 p.m., PW6 Ramlal gave a Parchabayan Ex. P/10 before the SHO, Police Station Sangaria District Hanumangarh while he was admitted in the Hospital stating inter alia that at about. 8.00 p.m. his brother Nanakram, PW2 went to the shop of Ramkumar for the purpose of purchasing bidi and upon hearing cries there, PW6 Ramlal and his brother Arjun Kumar, PW1 both went to the shop and saw that accused appellant No. 1 Chanan Singh and another accused Krishna were fighting with PW2 Nanakram and hand of PW2 Nanakram was being held up by accused Krishna and he was put on the ground and then accused appellants No. 2 Santa Singh and No. 3 Tara Singh also came there and they were having lathi and gandasa in their hands and they all started beating PW2 Nanakram and when PW6 Ramlal and PW1 Arjun Singh intervened in the matter, accused appellant No. 1 Chanan Singh gave a gandasa blow from the back side on the head of PW6 Ramlal and other accused also beat him. They also caused injuries to PW1 Arjun Singh. Thereafter, PW3 Chanan Singh, another brother of PW6 Ramlal, also came there and they were saved by Surjan Singh etc.
Upon this, police registered the case and chalked out FIR Ex. P/11 and started investigation. During investigation, the medical examinations of PW6 Ramlal, PW1 Arjun Singh and PW3 Chanan Singh were got conducted by Dr. K.K. Sharma, PW4.
After usual investigation, the police submitted challan against four accused persons in the Court of Magistrate, from where the case was committed to the Court of Session.
On 30-3-1996, the learned Addl. Sessions Judge, Hanumangarh framed charges for the offence under Sections 307/34, 325/34 and 324/34 against the present accused-appellants and against accused Krishna. The charge under Section 307/34, IPC was levelled against the accused-respondents for causing injuries to PW1 Arjun Singh and PW6 Ramlal; charge under Section 325/34, IPC was levelled for causing injuries to PW3 Chanan Singh and charge under Section 324/34, IPC was levelled for causing injuries to PW3 Chanan Singh and PW2 Nanakram. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial.
During trial, as many as seven witnesses were got produced by the prosecution and got exhibited some documents. Thereafter, statements of the accused under Section 313, Cr.P.C. were recorded. No evidence was led in defence by accused.
After conclusion of trial, the learned Addl. Sessions Judge No. 1, Hanumangarh vide his Judgment and order dated 20th Sept. 2000 convicted the present accused appellants for the offence under Sections 307/34, IPC and sentenced in the manner as indicated above holding inter alia :-
1. That prosecution has proved its case beyond reasonable doubt against the present accused-appellants for the offence under Section 307/34, IPC.
2. That prosecution has failed to prove the charge for the offence under Section 325/34, IPC against the accused-appellants.
3. That similarly prosecution has not been able to prove the charge for the offence under Section 324/34, IPC against the accused-appellants.
4. That prosecution has not been able to prove any of the charges against accused Krishna.
Aggrieved from the said Judgment and order dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh, this appeal has been filed by the abovenamed three accused-appellants.
3. In this appeal, the learned counsel for the accused-appellants has made the following submissions :-
1. That there are major contradictions in the statements of the eye witnesses on material points and from the injuries of PW1 Arjun Singh and PW6 Ramlal, no case for the offence under Section 307, IPC is made out against the accused-appellants and thus, the learned Addl. Sessions Judge has wrongly convicted the accused-appellants for the offence under Section 307, IPC.
2. That learned Addl. Sessions Judge has wrongly convicted the accused-appellants with the aid of Section 34, IPC as the whole incident took place on the spur of moment and since there is a cross case, in which accused party also received injuries, therefore, no question of invoking Section 34, IPC arises.
Hence, it is prayed that this appeal be allowed and accused-appellants be acquitted of the charges framed against them.
4. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant supported the impugned Judgment and order passed by the learned Addl. Sessions Judge No. 1, Hanumangarh.
5. I have heard the learned counsel for the accused-appellants, learned Public Prosecutor and the learned counsel for the complainant and perused the record of the case.
6. Before proceeding further, medical evidence has to be discussed here.
7. In this case, since charge under Section 307/34, IPC is made out for the injuries caused to PW1 Arjun Singh and PW6 Ramlal, therefore, injuries of only these two witnesses would be discussed here and rest injuries caused to PW2 Nanakram and PW3 Chanan Singh are not going to be discussed here, as case of the prosecution for the injuries caused to them has not been found established by the learned Addl. Sessions Judge.
8. To prove the injuries of PW1 Arjun Singh and PW6 Ramlal, the prosecution has produced Dr. K.K. Sharma, PW4, who has stated in his statement that on the relevant date he examined PW6 Ramlal and found the following injuries :-
1. Incised wound with bleeding 21/2' x 1/4' x Bone deep on longitudinally on right parietal area of scalp.
2. Incised wound with bleeding 1' x 1/4' Bone deep on left parietal area of scalp.
3. Swelling 2' x l1/2' on outer upper part of right buttock.
4. Swelling 1 1/4' x 1' on outer aspect of left knee.
5. Abrasion 1/2' x 1/4' on front aspect of middle 1/3 of left leg.
He has proved the injury report Ex. P/1. he has further stated that for injury No. 1 he advised X-ray and X-ray report is Ex. P/2 and after seeing the X-ray report, he opined that there was a fracture of right parietal bone and he has proved the X-ray report Ex. P/2.
9. Thus, from the statement of PW4 Dr. K.K. Sharma, it is established that PW6 Ramlal received one incised wound on head, which was found grievious in nature and he also received another incised wound on head and rest injuries were simple in nature.
10. PW4 Dr. K.K. Sharma on the same day also examined PW1 Arjun Singh and found the following injuries on his person:-
1. Swelling 4' x 2' on left temporal area and cheek.
2. Abrasion 1/4' x 1/4' on back of lower 1/3 of right upper arm.
He has proved the injury report Ex. P/4. He has further stated that he advised X-ray for injury No. 1 of PW1 Arjun Singh and after seeing X-ray report, he found fracture in left temporal bone and he has proved the X-ray report Ex. P/5.
11. Thus, from the statement of PW4 Dr. K.K. Sharma, it is also proved that PW 1 Arjun Singh received two injuries, out of which, injury No. 1, which was on his head, was grievious in nature.
12. So far as the causing of these injuries to PW 1 Arjun Singh and PW 6 Ramlal is concerned, it may be stated here that PW 1 Arjun Singh has stated in his statement that injury on his head, which was found grievious in nature, was caused by accused-appellant No. 3 Tara Singh. Hence, injury No. 1 on head of PW 1 Arjun Singh, which was found grievious in nature by blunt object, was caused by accused-appellant No. 3 Tara Singh.
13. PW 6 Ramlal in his statement has stated that when he and PW 1 Arjun Singh tried to save PW2 Nanakram, accused-appellant No. 1 Chanan Singh gave gandasa blow from the back side on his head and rest accused beat him on legs etc. Thus, he has specifically stated that head injury with gandasa was caused by accused-appellant No. 1 Chanan Singh and this fact is further corroborated by medical evidence that PW6 Ramlal received two injuries on his head with sharp-edged weapon and out of them, one was found to be grievious in nature. Therefore, it is held that grievious as well as simple injuries by sharp-edged weapon were caused by accused-appellant No. 1 Chanan Singh on the head of PW6 Ramlal.
The case of accused-appellant No. 2 Santa
14. The next question for consideration is whether for the injuries which have been caused by accused-appellants No. 1 Chanan Singh and No. 3 Tara Singh to PW6 Ramlal and PW1 Arjun Singh, another accused-appellant No. 2 Santa Singh can be convicted with the aid of Section 34, IPC or not.
15. PW5 Jai Singh, who was IO in that case has admitted that about the same incident, FIR was also lodged by accused party and both accused party as well as complainant party fought at one place. It means occurrence took place between both the parties at same place and from the statements of PW1 Arjun Singh and PW6 Ramlal, it is also clear that dispute arose with the beating of Nanakram, PW2 and, thereafter, accused-appellants No. 1 Chanan Singh and No. 3 Tara Singh intervened and in that intervening, they caused injuries to PW6 Ramlal and PW1 Arjun Singh.
16. Thus, it cannot be said that there was common intention among all the three accused-appellants, namely, Chanan Singh, Santa Singh and Tara Singh to commit criminal act and whatever has been done by accused-appellants No. 1 Chanan Singh and No. 3 Tara Singh, it cannot be said that it was done in furtherance of common intention. Furthermore, the occurrence took place out of sudden quarrel, therefore accused appellants should not be made constructively liable by application of Section 34, IPC. Therefore, it is held that Section 34, IPC in the present case is not applicable and each accused would be liable for the injuries caused by himself and not for the injuries caused by others. Thus, for the injury caused by accused-appellant No. 1 Chanan Singh, the accused-appellant No. 3 Tara Singh would not be liable with the aid of Section 34, IPC and similarly, for the injury caused by accused-appellant No. 3 Tara Singh, the ac-cused-appellant No. 1 Chanan Singh would not be liable with the aid of Section 34, IPC.
17. When this being the position, the case of the prosecution against accused-appellant No. 2 Santa Singh for the offence under Section 307/34, IPC cannot be said to have been proved as he cannot be convicted with the aid of Section 34, IPC. Therefore, accused-appellant No. 2 Santa Singh deserves to be acquitted of the charge for the offence under Section 307/34, IPC.
The case of accused-appellant No. 1 Chanan Singh
18. The next question that arises for consideration is whether accused-appellant No. 1 Chanan Singh by inflicting injury on the head of PW6 Ramlal has committed the offence under Section 307, IPC or not.
19. It may be stated here that though on the head of PW6 Ramlal, two incised wounds were found, but in the statement of PW6 Ramlal, it is found that accused-appellant No. 1 Chanan Singh gave only one blow on his head. It may further be stated here that PW4 Dr. K.K. Sharma has nowhere mentioned that the injury on the head of PW6 Ramlal was in any manner sufficient in the ordinary course of nature to cause death.
20. To prove the charge for the offence under Section 307, IPC the prosecution has to prove :-
1. That the accused did an act.
2. That it was done :-
(i) with the intention, or
ii) with the knowlege-
(a) of causing death :
(b) of causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was at tempted to be caused; or
(c) of causing bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death; or
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death; and the act attempted was committed without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. In order to attract the penalty under Section 307 IPC, the murderous intent is an essential element. That intention can be gathered from the nature of weapon, the parts of the body where injury is inflicted, nature of injuries inflicted and the opportunity available which the accused gets.
22. It may also be pointed out here that in coming to the conclusion, the act of the accused should be kept in mind and not the result. In other words, the angle of guilt has to be viewed from the point of intention and not from the result achieved.
23. Keeping the above principles in mind, the present case is being examined.
24. In the present case, the weapon like Gandasa was used by accused appellant No. 1 Chanan Singh. However, as per evidence, he has given only one blow on the head of PW6 Ramlal and there is no evidence to show that he made another attempt and there is also no evidence to show that he had any intention to murder PW6 Ramlal as incident took place on spur of moment and in saving PW2 Nanakram and Dr. K.K. Sharma, PW4 has nowhere mentioned that the injury on the head of PW6 Ramlal was in any manner sufficient in the ordinary course of nature to cause death and there is also cross case of the same incident.
25. Thus, looking to all the facts and circumstances of the case, for the injury received by PW6 Ramlal on his head by sharp-edged weapon at the hands of accused-appellant No. 1 Chanan Singh, it cannot be said that prosecution has proved its case beyond reasonable doubt against the accused-appellant No. 1 Chanan Singh for the offence under Section 307, IPC. However, the prosecution has been able to prove its case beyond reasonable doubt against the accused-appellant No, 1 Chanan Singh for the offence under Section 326, IPC instead of Section 307, IPC and thus, the findings of the learned Addl. Sessions Judge No. 1, Hanumangarh are liable to be altered accordingly.
The case of accused-aprjeUant No. 3 Tara Singh
26. So far as the grievious injury of PW1 Arjun Singh which has been caused on his head by blunt object by accused-appellant No. 3 Tara Singh is concerned, for that single injury, accused-appellant No. 3 Tara Singh cannot be convicted under Section 307, IPC and instead, he is liable to be convicted for the offence under Section 325, IPC and thus, findings of the learned Addl. Sessions Judge No. 1, Hanumangarh are liable to be altered accordingly.
On point of sentence
27. The next question is what sentence should be awarded to accused-appellant No. 1 Chanan Singh for the offence under Section 326, IPC and to accused-appellant No. 3 Tara Singh for the offence under Section 325, IPC.
The ease of Accused-appellant No. 1 Chanan Singh
28. The accused-appellant No. 1 Chanan Singh has been found guilty for the offence under Section 326, IPC. He has been in PC and JC from 30-10-1995 to 15-4-1996 and since 20-9-2000 till today. In my opinion, the period of sentence which he has already undergone is not sufficient sentence for the offence under Section 326, IPC as there is a fracture on vital part (head) of PW6 Ramlal. Thus, if the accused-appellant No. 1 Chanan Singh is sentenced to three years' RI for the offence under Section 326, IPC it would meet the ends of justice.
The case of accused-appellant No. 3 Tara Singh
29. The accused-appellant No. 3 Tara Singh has been found guilty for the offence under Section 325, IPC. He has been in PC and JC from 13-11-1995 to 17-1-1996 and from 20-9-2000 to 22-11-2000. In my opinion, for the offence under Section 325, IPC if he is sentenced to the period which he has already undergone, it would meet the ends of justice.
30. The net result of the above discussion is that :-
1. The appeal of the accused-appellant No. 2 Santa Singh is allowed and the Judgment and order dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh so far as they relate to accused-appellant No. 2 Santa Singh, are set aside and he is acquitted of the charge under Section 307/34, IPC Since he is on bail, he need not surrender and his bail bands stand discharged.
2. The appeal of accused-appellant No. 3 Tara Singh is partly allowed. He is convicted under Section 325, IPC instead of 307/34, IPC and the Judgment of the learned Addl. Sessions Judge No. 1, Hanumangarh dated 20-9-2000 so far as it relates to accused-appellant No. 3 Tara Singh stands altered accordingly and for the offence under Section 325, IPC he is sentenced to the period already undergone by him. Hence, the order of sentence dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh so far as it relates to accused-appellant No. 3 Tara Singh, stands set aside. Since he is on bail, he need not surrender and his bail bonds stand discharged.
3. The appeal of the accused-appellant No. 1 Chanan Singh is partly allowed. He is convicted for the offence under Section 326, IPC instead of 307/34, IPC and the Judgment dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh so far as it relates to accused-appellant No. 1 Chanan Singh, is altered accordingly and for the offence under Section 326, IPC, the accused-appellant No. 1 Chanan Singh is sentenced to undergo three years' RI and to pay fine of Rs. 1,000/-, in default of payment of fine to further undergo three months' RI. The period which he has already undergone shall be set off from three years RI. The order of sentence dated 20-9-2000 passed by the learned Addl. Sessions Judge No. 1, Hanumangarh so far as it relates to accused-appellant No. 1 Chanan Singh stands modified accordingly.