Rajasthan High Court - Jaipur
Prahlad And Ors. vs State Of Rajasthan on 19 May, 1986
Equivalent citations: 1986(2)WLN379
JUDGMENT Jasraj Chopra, J.
1. This is an appeal against the judgment of the learned Sessions Judge, Jodhpur dated 28-4-1978 whereby the learned lower court has held accused-appellant Prahladram guilty of the offence under Sections 304, Part II and 452, IPC and has sentenced him to 5 years rigorous imprisonment for the offence under Section 304, Part II, IPC and 6 months rigorous imprisonment for the offence under Section 452 IPC. The remaining four accused-appellants viz. Harlal, Jiya, Arjunram and Kishnaram have been held guilty of the offences under Sections 323 and 452 IPC and they have been sentenced to 3 months' rigorous imprisonment for the offence under Section 323 IPC and 6 months rigorous imprisonment for the offence under Section 452, IPC. All the 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 the marriage of Kistooraram's two daughters took place in village Lamba in which most of the Bishnoi's of the adjoining areas were also invited. One Kishnaram resident of village Fitkasni, who has been examined as PW 8, also cams to attend this marriage in village Lamba. It is alleged that on September 6, 1977 at about 3 p.m., PW 8 Kishnaram was passing by the side of the temple of Kesariya Kunwarji. All these 5 accused-persons along with their companions, who were in all 9 persons objected to the way in which PW 8 Kishnaram was wearing his Dhoti. In Bishnoi community, the corners of the Dhoti are pushed inside the part of the Dhoti which is tied to the waiste. No corner of the Dhoti is allowed to be kept in hanging or flattering. PW 8 Kishnaram was wearing the Dhoti in the style where corner of the Dhoti was kept hanging. This was objected by the accused-persons and they asked him not to keep the corners of the Dhoti hanging. He was asked to push this corner inside the portion of Dhoti tied to the waiste. Kishnaram did not listen to them. This enraged the accused-persons and, therefore, these five accused-persons along with their companions Arjun son of Khetaram, Ramiya, Manglaram and Gordhan who were armed with lathis, hockey and Dhariyas pursued him in order to give a beating to him. It is alleged that Kishnaram brought this fact to the notice of PW 3 Prahaladram who happens to be his cousin brother i.e. his mother's sister's son and told him that these accused-persons have insisted with him not to wear the Dhoti in the fashion he used to wear it. Prahlad Ram (PW 3) told him that he should not mind it because it hardly matters to him as he has only come here for a day. This further enraged the accused persons and they started pelting stones on Kishnaram. When this was observed by Chhogaram elder brother of Kishnaram, he came out of his house. Some of the stones even fell on his Chabutri and below it and probably one or two went inside his house and, therefore, he asked the accused-persons why they were unnecessarily following the guest who has come to the village. On this, accused persons left Kishnaram and they remonstrated Chhogaram as to why he is taking side of a man who has not tied his Dhoti in the fishion prevailed amongst Bishnois and after saying this, they ran after Chhogaram. Chhogaram took shelter in the house of his brother Ramsukh. The accused persons who were armed went inside the house of Ramsukh and gave beating to him. It is alleged that accused Harlal, Jiyaram and Arjun son of Natha were armed with Dhariyas and accused Prahladram was armed with a hockey. The rest of the accused persons were armed with lathies. It has been alleged that accused Harlal struck a Ohariya blow from its back side on the back of Chhogaram. Jiya Ram gave a Dhariya blow from its back side on his neck and Arjun son of Natharam gave a Dhariya blow from its back side on the right temporal region of Chhogaram. Accused Prahladram struck a hockey blow on the head of Chhogaram and the remaining accused-persons gave beating to him with lathis. He fell down unconscious. PW 3 Prahladram, his younger brother who is also the First Informant and Jetarara too went inside the house of Ramsukh and tried to intervene and in that process, they too were beaten by the accused-persons. After the beating was over, the accused persons left together from the house of Ramsukh. Chhogaram became unconscious and, therefore, he was shifted from Laroba to Jodhpur Hospital and there, he died at 9.45 p.m. on that very day. Prahlad who is younger brother of Chhogaram and who has been examined as PW 3 along with his nephew Jetaram went to report the matter to the nearby Chowki and there they were informed that the, SHO Bilara has come to the Police Line. On this, both of them came to the Police Line and the SHO asked them tp lodge a written report whereupon. Prahaladram got the report scribed from Jetaram and delivered it to the SHO, Bilara. This written report has been marked Ex. P 5. It was sent for registration of a case at the Police Station with one Ranidan Constable to the Incharge Police Station, Bilara and on the basis of which a case was registered under Sections 147, 148, 149, 452, 336, 323 and 302 IPCat 11.55 p.m. by Pepsingh, ASI, Incharge Police Station, Bilara and a formal FIR was sent with Constable Ranidan Singh to the SHO at Jodhpur on 7-9-1977. The SHO inspected the dead body of Chhoga Ram and prepared the inspection memo of the dead body Ex. P 4. The site was inspected and the site plan and site inspection memo have been marked Ex. P 7 and Ex. P 1 respectively. The blood stained shirt of deceased Chhogaram was taken into possession from the house of Ramsukh vide seizure memo Ex. P 2. The blood stained clothes on the person of the deceased were seized vide memo Ex. P 8. All the 9 accused persons were arrested vide memo Ex. P 9 to Ex. P 17. The blood stained clothes of the deceased were sent for chemical and serological examination and the reports of the chemical & serological examination have been marked Ex. P 18 and 19 respectively. The post-mortem report has been marked Ex. P 21 and the injury report of PW 3 Prahaladram and PW 5 Jetaram have been marked Ex. P 22 and 23 respectively.
3. After usual inves'igation, the case against the accused-persons was challaned in the court of learned Munsif& Judicial Magistrate, Bilara from where, it was committed for trial to the court of learned Sessions Judge, Jodhpur. The learned Sessions Judge charged the accused-persons as under:
(1) Prahladram Under Sections 302 or 302/149, 449 and 148 IPC; (2) Harlal Under Sections 302 or 302/149, 449 and 148 IPC; (3) Jiyaram Under Sections 302/149, 449 and 148 IPC; (4) Arjun s/o Under Sections 302/149, 449 and 148 IPC; Nathram (5) Arjun f/o Under Sections 302/149, 449 and 148 IPC; Ketharam (6) Ramiya Under Sections 302/149, 449 and 147 IPC; (7) Manglaram Under Sections 302/149, 449 and 147 IPC; (8) Gordhan Under Sections 302/149 and 147 IPC; (9) Kishnaram Under Sections 302/149, 449 and 147 and 423 IPC.
The pleas of the accused-persons were recorded and they did not plead guilty to the charges and claimed trial whereupon the prosecution examined in all 9 witnesses in support of its case. The statements of the accused persons were recorded under Section 313 Cr.PC. They have stated that they are innocent and they have been falsely implicated. They examined five witnesses in their defence.
4. After hearing the parties, the learned lower court held that in this case, no common intention or common object to commit the murder of Chhogaram was formed and, therefore, it has acquitted all the accused persons of the offences under Sections 147, 148 and 149 IPC. It has further held that if any common intention or common object was there, it was to cause simple hurts to the victims but inspite of it, he did not convict any body by taking recourse to Section 34 or 149 IPC. It has also held that from the evidence of PW 3 Prahlad and PW 5 Jetaram, it is clear that accused Kishnaram has inflicted simple injuries and, therefore, he has been held guilty of the offences Under Section 323, IPC for causing simple injuries to these two injured persons. Accused Harlal, Jiya and Arjun are alleged to have caused simple injuries from the back side of Dhariyas to deceased Chhoga Ram and, therefore, they to have been held guilty of the offence under Section 323 IPC. It has further held that accused Prahladram had inflicted a hockey blow on the head of Chhogaram and that injury has proved fatal and, therefore, the learned lower court has assigned to accused Prahladram the knowledge that he caused an injury which was likely to cause death because he has availed the head of the deceased for causing severe blow with such a heavy weapon like hockey and so, the accused Prahaladram has been held guilty of the offence under Section 304, Part II, IPC. Nobody has been held guilty of the offence under Section 449 IPC because no intention to kill Chhogaram had ever developed amongst the accused-persons and thus, only 5 accused persons against whom, there is specific evidence of causing injuries have been held guilty of the offence under Section 452 IPC. The remaining four accused-persons against whom there is no specific evidence of causing injuries to any of the injured have been acquitted of all the offences alleged against them. Even the convicted accused persons have been acquitted of the offences under Sections 302/149, 449 and 148 and 147 IPC. They have been convicted and sentenced as aforesaid.
5. Aggrieved against this judgment, these 5 accused-appellants who have been convicted by the learned lower court have preferred this appeal.
6. I have heard Mr. D.K. Purohit, learned counsel for the accused- appellants and Mr. B.C. Bhausali, learned Public Prosecutor for the State.
7. In this case, after the arguments were heard, a notice was issued to the accused-appellants to show cause as to why they should not be convicted of the offence under Section 304, Part II, read with Section 34 IPC. After that, arguments to decide whether the accused-persons can be held guilty of the graver offences were heard.
8. Mr. B.C. Bhansali, learned Public Prosecutor appearing for the State has argued that in this case the learned lower court has held that common object and common intention developed amongst the assembly of the accused-persons at the spur of the moment. The learned lower court has itself held that their common intention was to cause simple injuries to Chhogaram. He has submitted that this view of the learned lower court is not sustainable on the basis of the record. It may be true that they may not have developed any common intention to kill Chhogaram because the Dhariyas were used by the accussed-persons from its back side but there cannot be any doubt about the fact that the accused had developed a common intention at the spur of the moment to cause such injuries to Chhogaram, which they knew likely to cause his death. When the persons of the assembly were armed with deadly weapons like Dhariyas and hockey it cannot be assumed that the common object and common intention of the assembly was only to cause simple injuries. More over, the intention can also be ascertained from the parts of the body which have been availed by them and the nature of the injuries caused by them. It is true that the accused-persons who were armed with Dhariyas used their weapons from its back side but at the same time, it is true that they have availed the most vital organs of Chhogaram for landing all the blows i.e. all the three accused who were armed with Dhariyas has availed the head, neck and temporal region of the body of deceased Chhogaram whereas accused Prahaladram who was armed with a hockey, availed the head of decased Chhogaram. Thus, the learned lower court should have taken a view that the common object of the assembly was to cause such like injuries to the injured which were likely to cause his death. More over, when the members of the assembly were armed with such deadly weapons like Dhariyas. how the learned lower court has inferred that their only intention was to cause simple injuries. At least, their common intention could have been to cause grievous injuries to the injured and they have actually done so.
9. Mr.D.K. Purohit, learned counsel appearing for the accused-appellants has countered these arguments of Mr. B.C. Bhansali, learned Public Prosecutor by saying that he concedes that that powers of the court are still existing regarding the enhancement of the sentence by exercising suo moto power of revision under Section 397 read with Section 401 Cr.PC. Mr. Purohit further submitted that in a given case the appellate court can hold the accused guilty of a minor offence but it may still punish the accused with an enhanced sentence. Looking to the facts and circumstances of a particular case neither Section 397 nor Section 401 CrPC authorises the appellate court to alter the conviction of the accused to a graver offence from that of a minor offence. In this respect, he placed reliance on a decision of their Lordships of the Supreme Court in Eknath v. State of Maharastra wherein it was laid down as under:
In an appeal against inadequancy of sentence it is not permissible to alter the conviction to an aggrevated cateogory of offence for which the accused was not convicted. While the accused in such an appeal under Section 397 can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of a graver offence and on that basis, the sentence should be enhanced. The prosecution will only be able to urge that the sentence is inadequate on (he charge as found or even on an altered less graver charge.
Thus, it is clear that although this Court has power to enhance the sentence in an appropriate case by exercising the powers of revision suo moto under Section 397 read with Section 401 Cr.PC but this power cannot be exercised to alter the conviction of an offender to an aggrevated category of an offence from the one for which the accused has been convicted by the trial court. Looking to these facts and circumstances of this case, the notice issued to accused appellants Harlal, Jiya, Arjunrctm son of Natha and Kishnaram to show cause as to why they should not be held guilty of the offence under Section 304, Part II, read with Section 34, IPC deserves to be withdrawn, and it is hereby withdrawn.
10. The Supreme Court has set at rest the controversy regarding this matter and hence, we are not left to consider the appeal as it stands on its own merits. The question of holding accused-appellants Harlal, Jiya, Arjunram son of Natha and Kishnaram guilty of the graver offence does not survive for any decision by this court in view of the above quoted Supreme Court authority.
11. Mr. D.K. Purohit, learned counsel for the accused-appellants has not seriously contested the convictions of accused-appellants Harlal, Jiya. Arjun son of Natha and Kishnaram but he has submitted that when Section 34 IPC has not been availed, the accused Prahlad could not have been convicted of the offence under Section 304, Part II, IPC by the learned lower court. According to him, the conclusions arrived at by the learned lower court are conjectural in nature and they are based on legal evidence. It has come in the evidence of the witnesses that two persons have inflicted injuries on the head of Chhogaram and one of them was accused Harlal who has inflicted a blow with a Dhariya from its back side and the other v as accused Prahlad who was armed with a hockey and who too has inflicted a blow on the head of deceased Chhogaram. It has not come in the evidence of the Doctor that the blow of Prahlad has actually caused fracture on the head. Under these circumstances, he has submitted that the case of Prahlad cannot be distinguished from that of accused Harlal and when accused Harlal has been convicted of the offence under Section 323 IPC, accused Prahlad also cannot be convicted of any offence graver than Section 323, IPC.
12. I have considered this submission made by Mr. D.K. Purohit, learned counsel for the accused-appellants. It is most unfortunate that although three of the accused persons where armed with Dhariyas and one of them was armed with a hockey and they have availed head, neck and face for landing blows but still the learned lower court has taken the view that common intention of the accused-persons was only to cause simple injuries to Chhoga Ram. It is a different matter that these deadly weapons have not been used from the sharp side which may exclude the formation of any common intention to kill Chhoga Ram but even if Dhariyas are used from its but side; they are quite deadly in their inflicting injuries by them and the hockey, at least a common intention or common object to cause the grievous injuries or injuries which were likely to cause death could have been inferred from the facts and circumstances of this case, specially when all the accused- persons left pursuing Kishna Ram on the intervention of Chhoga Ram and immediately took upon themselves the task to teach a lesson to Chhoga Ram who was siding with Kishna Ram. ft that had not been their common intention or common object, they would not have taken any notice of Chhoga Ram's request and would have pursued Kishna Ram but they left pursuing Kishna Kam and immediately developed an aggressive design against Chhoga Ram at the spur of the moment and entered into the house of Ramjas together armed with weapons like Dhariyas and hockeys in hot pursuit of Chhoga Ram. They availed Chhoga Ram as soon as they entered into the house of Ramjas and also caused injuries to the persons who tried to intervene to save him and thereafter, they left the house of Ramjas together. These facts clearly establish that they entertained a common object and/or common intention to inflict injuries to Chhoga Ram and that common intention could have extended to the causing of grievous injuries or injuries which were likely to cause death of Chhoga Ram because the accused persons were armed with deadly weapons like Dbariyas and hockey, etc., although it may be that those Dhariyas have been used from its blunt side but still they can very well prove deadly and fatal even when they are used from its back side specially when the most vital organs of the body like head and face, etc., availed.
13. Be that as it may, the learned lower court inspire of holding that the accused persons entertained common object to cause simple injuries to Chhoga Ram, it has not convicted and sentenced any body of the offence under Sections 147 and 148, JPC. It has held accused Prahlad Ram guilty of the offence under Section 304, Part II, IPC and it has further held accused Harlal, Jiya and Arjun son of Natha guilty of the offence under Section 323, IPC because they have caused simple injuries to Chhoga Ram from the blunt side of Dhariyas. The learned lower court has also held accused Kishnaram guilty of the offence under Section 323 IPC because he has caused simple injuries by lathi to Prahaladram and Jetaram who tried to intervene to save Chhogaram.
14. PW 3 Prahladram, PW 5 Jetaram and PW 6 Bhakharram have been examined as alleged eye witnesses of the occurrence. They have stated that accused Harlal, Arjun son of Natharam and Jiya were armed with Dhariyas. Accused Harlal inflicted a Dhariya blow from its blunt side to Chhogaram on his head. Likewise, Arjun son of Natha has inflicted a blow from the blunt side of the Dhariya on the right temporal region of Chhogaram and Jiya has inflicted a blow with the blunt side of Dhariya to Chhogaram on the left side of his neck. PW 3 Prahlad who himself is an injured witness has submitted that accused Harlal after entering into the house of Ramsukh following Chhogaram inflicted blow with the back side of the Dhariya on the head of Chhogaram. Accused Arjun son of Natha struck a blow from^the back side of the Dhariya on the left temporal region of Chhogaram whereas accused Jiya inflicted a blow with the back side of the Dhariya on the left side of the neck just below the angle of ear. The blow struck by accused Harlal from the back side of the Dhariya hit the right side of the head of Chhogaram just above the right ear.
15. PW 5 Jetaram who is another injured witness has stated that accused Harlal struck a blow from the back side of the Dhariya on the right side of the head of Chhogaram whereas the blows inflicted by accused Arjun son of Natha and Jiya from the back side of their Dhariyas were struck on the right temporal region of Chhogaram.
16. PW 6 Bhakharram has stated that accused Harlal struck a blow from the back side of the Dhariya on the head of Chhogaram and accused Arjun son of Natha and Jiya struck blows with the back side of the Dhariya on the temporal region of Chhogaram. According to the Doctor, there is a lacerated wound existing on the right temporal region and right lower jaw and upper part of neck near the angle of mandible. Although there is some difference between the testimony of the eye witnesses as to whether the blows were landed on the right temporal region or on the left temporal region of Chhogaram but PW 5 Jetaram has categorically stated that blows were inflicted on the right side of the face on the temporal region or below it. Thus, these two injuries inflicted by accused Arjunram son of Natha and accused Jiya are fully corroborated by the medical testimony of PW 9 Dr. P. Dayal, who has proved the post mortem (Ex. P 20) of deceased Chhogaram. The Doctor has found one ill-defined haematoma over the scalp on the right side with lacerated wound 3 cm x 1.5 cm and bone deep in the left fronio-parietal region of scalp extending over the whole surface of skull. There was a fissured fracture almost shaped in the left fronto-parietal region extending into the right frontal region and to the right superior orbital margin and the right anterior cranial fosses. There was a subdural haematoma over the whole surface of brain and there was acthymosis of the upper and lower eye lids of both eyes. These injuries show that there existed on ill-defined haematoma over the scalp on the right side with lacerated wound 3 cm x 1.5 cm and bone deep in the left franto parietal region of the scalp extending over the whole surface of the skull. There was no extending over the whole surface of the skull. There was no external injury on the right side of the skull but a lacerated wound was found of the above said measurement on the left fronto-parietal region of the skull and the fissured fracture also existed on the left fronto parietal region extending into the right frontal region and to the right superior orbital margin and the right anterior cranial fosse. Thus, the external mark of injury was caused only on the left side of the skull and not on the right side of the skull. It has come in the evidence of all these three eye witnesses that accused Harlal had inflicted a blow from the back side of the Dhariya on the right side of the head of Chhogaram but the learned tower court held that this injury has not proved fatal and therefore, it has held accused Harlal guilty of the offence under Section 323, IPC on account of the existence of haematoma on the righ side.
17. Mr. D.K Purohit, learned counsel appearing for the accused appellants has argued that it has come in the evidence that accused Prahlad Ram has also landed blows with the hockey on the right side of the head of deceased Chhogaram. PW 3 Prahladram has stated that accused Prahlad Ram has inflicted a hockey blow on the dead Chhogaram. Accused Hartal's blow landed just over the right ear of Chhogaram and accused Pcahlad's blow was inflicted on the same side i.e. right side of the head just above the injury inflicted by accused Harlal.
18. P W 4 Ramsukh has reached the place of the occurrence after the occurrence was over and Chhogaram was lying unconscious in his house. He has seen the accused-persons leaving with the above said weapons. PW 5 Jetaram has stated that the blow inflicted by accused Harlal struck on the right side of the head of Chhogaram and the blow inflicted by accused Prahlad also landed on the head of Chhogaram This blow which was inflicted by Prahladram has landed just near the blow struck by Harlal. PW 6 Bhakhraram too has stated that the accused Harlal and Prahladram both struck blows with back side of the Dhariya and hockey on the head of Chhogaram. Thus, from the evidence of these witnesses, it is clear that accused Harlal and Prahladram both have struck blows to Chhogaram on the right side of his head whereas no visible injury existed on the right side of head except haematoma and the visible injury existed only on the left parietal bone and it is this very region, which has been fractured, according to the testimony of PW 9 Dr. P. Dayal. When the learned lower court has held that the blow caused by accused Harlal is only simple in nature then it cannot be said that the blow struck by Prahladram alone was responsible for causing that injury. It is of course true that even on account of the blow struck on the right side of the head, a fracture can be caused on the left side of the head. From the testimony of the witnesses, it is clear that two blows have been struck on the right side of the head causing only baematoma but no external injury and if it has caused a fracture on the left side of the head then it cannot be said with certainty that this very blow inflicted by Prahladram alone has caused this fracture. It has not come in evidence that any body has struck a blow on the left side of the head of Chhogaram although there existed an external injury on the left side of head of Chhogaram. It may be that somebody has struck a blow on the left side of his head and that has caused this fracture. Be that as it may, the case of accused Prahaladram cannot be distinguished from that of accused Harlal and when accused Harlal has been held guilty of the offence under Section 323 IPC then the case of Prahaladram cannot be distinguished from him and he too, can only be held guilty of the offence under Section 323, IPC. Therefore, this court has been left with no option but to hold the accused appellant Prahaladram guilty of the offence under Section 323, IPC.
19. PW 3 Prahaladram has stated that accused Kishanaram has inflicted one blow on his right knee and the other blow was inflicted by him on his left arm. Both these injuries have been corroborated by the testimony of PW 9 Dr. P. Dayal, who has proved the injury report Ex. P 22 PW9 Dr. P Dayal examined PW 3 Prahladram on 7-9-1977 at about 11 am. and found a lacerated wound of the size 2 c.m.xl.5 cm. and skin deep on the lateral aspect of right knee a bruise 6 c m, x 1.5 cm. on the postero lateral aspect of middle of left fore-arm. Likewise, PW 5 Jetaram has stated that accused Kishnaram gave a lathi blow on the fingers of his right hand and Dr. P. Dayal (PW 9) has found a bruise 2 5 cm x I cm. x 1 cm. on the distal phalynx of right middle finger of Jetaram. Thus, the learned lower court was perfectly justified in holding that the accused Kishnaram has also taken part in the occurrence and he has inflicted simple injuries by a lathi to both the injured person i.e. PW 3 Prahladram and PW 5 Jetaram.
20. As stated above, PW 5 Ramsukh has arrived at the place of the occurrence after the beating was over and when the accused-persons were leaving the place of occurrence and so, he could not have said as to who inflicted injuries to deceased Chhogaram and the two injured viz. PW 3 Prahlad and PW 5 Jetaram. PW 6 Bhakhraram has stated about the injuries of Chhogaram but he has stated that he cannot say as to who inflicted other injuries to all the injured persons and, therefore, his testimony is also of no avail regarding the injuries received by PW3 Prahlad Ram and PW 5 Jetaram. PW 8 Kishnaram has tried to say that one hockey blow was inflicted on the '.emporal region of Chhogaram by accused Prahladram while he was on the Chabutri of Ramsukh's house. This evidence given by him is not believable because in portion G to H of his police statement marked Ex. P 20, he has stated that when the accused persons; hotly pursued him, he ran away to save his life and latter, he heai-d that Chhogaram has been beaten, which shows that he has not seen the occurrence. Thus, from the above discussion of the evidence, it is also clear that accused Krishnaram has given beating to PW 3 Prahladram and PW 5 Jetaram.
21. Mr. D.K. Purohit, learned counsel for the accused-appellants further argued that in this case, the Doctor has not been examined to prove that the fatal injury could have been received by a hockey. No question was asked to him whether this lethal weapon could have caused such an injury and, therefore, it cannot be held that the fatal injury was caused by accused Prahladram as held by the learned lower court. In this respect, he requested me to notice a decision of their Lordships of the Supreme Court in Mohinder Singh v. The State 1953 Cr.LJ 1761, wherein their Lordships have been pleased to hold that in a case where the death is due to injuries or wounds caused by a lethal weapon it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case. It may be gainfully mentioned here that the witnesses have stated that injury was received on the right side of the skull whereas the fracture has been found on the left side of the skull. Thus it was essential for the prosecution to have ^ asked the Doctor whether the injury found on the right side of the skull was 4 possible by a hockey blow without causing any external injury and whether the impact of such a blow could have caused a fracture on the left side of the skull. This has not been done, and, therefore, this is another reason on the basis of which he accused can only be held guilty of the offence under Section 323, IPC.
22. Mr. Purohit next argued that when several persons took part in beating several persons, it is difficult to particularise the blows. In this case initially deceased Chhogaram was beaten by four accused-persons and the other two injured persons were availed later on PW 6 Bhakharram was not even availed and, therefore, if they have been able to particularise the blows, it was quite natural in the facts and circumstances of this case and thus the authority reported in Baldeosingh v. State of Bihar AIR 1972 SC 461 (Para 10) is not applicable to the facts and circumstances of the present case.
23. We may gainfully refer to a decision of their Lordships of the Supreme Court in Sitaram Pandey v. State of Bihar 1976 Cr.LJ 800, where in it was observed as follows :
It is well settled that, if persons are in a mob holding lathis and are in company of other persons who are holding deadly weapons like Bhalas and if they come together and go together after the occurrence, it cannot be held that they did not share the common object. The provisions contained in Section 149 will be attracted, unless it is established that the persons holding lathis at the place of occurrence were mere sight-seers, ft is also well settled that in all cases, it is not necessary that all the persons forming an unlawful assembly must do some overt act.
This ruling was cited before the learned lower court but it has distinguished it on facts mentioning in its judgment that the accused-persons came together after the initial oral altercation was over. The ratio of this ruling says that if the persons armed with Bhalas and lathis came together at a particular place, inflicted injuries and left the place together after infliction of the injuries, it can safely be held that they shared a common intention or common object.
24. The upshot of the abovd discussion Prahladram cannot be held guilty of the offence under Section 304, Part II, IPC. He can only be held guilty of the offence under Sections 323 and 452, IPC along with other accused persons who have also been held guilty of the above said two offences.
25. Now, so far as the sentence is concerned, accused appellants Harlal, Jiya, Arjun son of Natha and Kishnaram have been sentenced to 6 month's rigorous imprisonment for the offence under Section 452, IPC and 3 months' rigorous imprisonment for the offence under Section 323, IPC. Looking to the facts and circumstances of this case, this sentence appears to be quite lenient. Accused Prahladram is also sentenced to 6 month's rigorous imprisonment for the offence under Section 452, IPC and 3 months11 rigorous imprisonment for the offence under Section 323, IPC. Although much time has elapsed after the occurrence which has faken place on' 6-9-1977 but in this case an innocent person has been done to death for no fault on his part and, therefore, I do not feel inclined to reduce the sentence imposed against the accused-appellants. It is not a case where the benefit of probation should be extended to the accused-persons because from the very inception, the accused persons were in the wrong and they unnecessarily objected to the way in which Kishnaram was wearing Dhoti. They tried to beat him on that count and when Chhogaram intervened, he was done to death.
26. In the result, this appeal is partly accepted and conviction and sentence of the accused-appellant Prahladram under Section 304, Part II, IPC recorded by the learned lower court are set aside. However, he is held guilty of the offences under Sections 452 and 323 IPC and is sentenced to 6 months' rigorous imprisonment for the offence under Section 452, IPC and 3 months' rigorous imprisonment under Section 323, IPC. The conviction and sentence recorded against accused-appellants Jiya, Arjun son of Natharam, Harlal and Kishnaram by the learned lower court are maintained. The accused-appellants are on bail. Their bail-bons are cancelled and they are directed to surrender themselves before the learned Sessions Judge, Jodhpur to serve out the remaining sentence imposed against them. The learned Sessions Judge, Jodhpur is also directed to effect their arrest to serve out the remaining sentence imposed upon them.