Rajasthan High Court - Jaipur
Radhey Shyam And Ors. vs State Of Rajasthan on 15 April, 2002
Equivalent citations: RLW2003(4)RAJ2227
JUDGMENT Bansal, J.
1. As many as 12 accused were put on trial before the learned Additional Sessions Judge No. 3, Kota, in Sessions Case No. 72/94. The learned trial Judge acquitted accused Ram Gopal, Mangilal, Mukutbihari, Mahendra, Badrilal, Girraj Prasad, Chhitarlal and Chandalal. Accused Surendra absconded during trial. Accused Radhey Shyam, Om Prakash and Babulal were convicted and sentenced by the learned Judge vide its judgment dated Judge 12, 1997 as under:-
1.
Radhey Shyam u/S 147 IPC Six Months R.I. with a fine of Rs. 500/-, in default to further undergo two months S.I. u/S 148 IPC One year R.I. with a fine of Rs. 500/-, in default to further undergo three months S.I. u/S 302 IPC Life Imprisonment with a fine of Rs. 1,000/-, in default to further undergo two years S.I.
2. Om Prakash & Babuial u/S 147 IPC Six months R.I. with a fine of Rs. 500/-, in default to further undergo two months S.I. u/S 148 IPC One year R.I. with a fine of Rs, 500A, in default to further undergo three months S.I. u/S 302/149 IPC Life Imprisonment with a fine of Rs. 1,000/-, in default to further undergo two years S.I.
2. All the substantive sentences were ordered to run concurrently.
3. The said judgment has been assailed by the appellants in the instant appeal.
4. Briefly stated the prosecution case is that PW-4 Mahaveer Prasad S/o Madholal by caste Meena, R/o Lohawad, P.S. Itawa, submitted a written report Ex.P5A to SHO, Police Station, Itawa, on November 15, 1993 at 5:00 p.m. with the averments that today at about 4:00 p.m. he alongwith his brother Sahablal was sitting in the market of Lohawad. Accused Radhey Shyam S/o Prabhulal Meena, Prakash S/o Prabhulal, Mahendra S/o Kalyan, Chandalal, Surendra, Babulal S/o Prabhulal, Girraj S/o Chapanlal, Mukut S/o Chandalal, Ramgopal S/o Chandalal, Chhitar S/o Chandalal and Mangilal S/o Morpal along with 20 persons came in a Tractor-troli of Badrilal. They were armed with Sword, Gandasi, Dhariya and Lathies. Radhey Shyam was having sword and Prakash was having Lathi. They attacked on him and Sahablal, Radhey Shyam inflicted an injury by sword on the head of Sahablal. Prakash gave Lathi blow on his person and the person of Sahablal. He (Mahaveer Prasad) sustained four injuries. Accused Radhey Shyam inflicted another injury on the waist of Sahablal. It was also alleged in the report that on the said day at about 2:00 p.m., Surendra who was drunk, came in village Lohawad and abused him. Thereafter, Surendra went to village Devkhedali and brought other persons in a Tractor. Birbal, Anandilal, Om Prakash and Munna had seen the incident and saved them. On the basis of the report Ex. P5A, the SHO, P.S., Itawa, registered a case under Sections 307, 147, 148 and 149 IPC and investigation commenced. Both Mahaveer and Sahablal were got medically examined. The Medical Officer Incharge. CHC, Itawa, found four injuries on the person of Sahablal and three injuries on the person of Mahaveer Prasad. Sahablal was taken to Kota hospital for further treatment, but he was declared dead. Thereafter the police converted the case-to on Under Section 302 IPC and proceeded further with the investigation. The Investigating Officer PW-19 Ram Narayan reached at the spot and prepared site plan Ex.P4. Inquest report of the dead body of Sahablal Ex.P1 was also prepared. Blood smeared soil was seized and sealed vide Ex.P 5. Autopsy on the dead body of Sahablal was conducted by PW-16. Dr. K.L. Meena, Medical Officer Incharge, CHC, Itawa, on November 16, 1993 at 8:00 a.m. and prepared post-mortem report Ex-P24. The Investigating Officer seized blood stained clothes of the deceased and prepared Ex.P2. The appellant Radhey Shyam was arrested vide Ex.P26 and on his information Under Section 27 of the Evidence Act and on his information Under Section 27 of the Evidence Act and at his instance a sword was recovered from his house vide recovery memo Ex.P8. On the information and at the instance of other accused persons Gandasi, Lathies and Kuntia were also recovered. Statements of witnesses Under Section 161 Cr.P.C. were recorded. On Completion of the investigation the Chargesheet was laid in the Court.
5. In due course, the case came up for trial before the Additional Sessions Judge No. 3, Kota, Charges under Sections 147, 148, 302, in alternate 302/149 were framed against Radhey Shyam and Surendra. Charges under Sections 147, 148, 323 and 302/149 IPC were framed against the remaining accused. All the accused denied the charges and claimed trial.
6. The prosecution examined as many as 20 witnesses to prove its case. As already stated, accused Surendra absconded during trial. The accused in their statements under Section 313 Cr.P.C., claimed innocence and stated that they were falsely implicated because of enemity. Accused-Radhey Shyam further stated that on November 15, 1993, at about 2:00 p.m., Anandilal, Om Prakash, Mahaveer and Birbal had beaten Surendra and his mother and snatched Rs. 1,000/- and a gold chain. He went to the Police Station for lodging report at about 4:00 p.m. As the SHO was not available, he was made to sit in the police station. At about 7:00 p.m., he was arrested and detained in police look-up but formal arrest was shown on November 18, 1993. Two witnesses were examined in defence by the accused. The learned trial Judge, on hearing final submissions, convicted and sentenced the accused- appellant Radhey Shyam, Babulal and Om Prakash, acquitted 8 accused as indicated hereinabove.
7. We have heard the learned counsel for the appellants and the learned Public Prosecutor for the State. With their assistance we have carefully scanned and scrutinized the material on record.
8. PW. I6-Dr. K.L. Meena stated in his statement, that he was Officer Incharge, CHC, Itawa. On November 15, 1993 at 5:30 P.M. he examined Sahablal S/o Modulal, aged 30 years by caste Meena R/o. Lohawad on police request and found the following injuries on his person:-
(1) Incised wound 4/1/2" x 1/1/2" x 2" on vertex of head, slightly right side of middle line;
(2) Incised wound 3/1/2" x 1" x 1/1/2" on left parietal region.
(3) Incised wound 4" x 1/1/2" x 2/1/2" on back, 2" away to lumber vertibra, on right side at upper border of pelvic bone.
(4) Contusion with diffuse swelling 3" x 2" on left elbow joint.
9. Dr. Meena further stated that injuries No. 1 to 3 were caused by sharp weapon and injury No. 4 by blunt weapon. Duration of injuries was within six hours. He prepared injury report ex.P22.
10. Dr. Meena further stated that mahaveer was also examined on November 15, 1993 at about 5:30 p.m. on police request and found the following injuries:-
(1) Abrasion 1/1/2" x 3/4" on right wrist.
(2) Contusion 2" x 1/1/4" on left leg.
(3) Complaint of pain on right shoulder but there was no visible injury.
(4) Contusion 2/1/2" x 1/1/4" on right forearm.
11. All the injuries were caused by blunt weapon and their duration was within 6 hours. He prepared injury report Ex.P23.
12. Dr. Meena (PW-16) further stated that on November 16, 1993 at 8:00 a.m., he conducted post-mortem examination on the dead body of Sahablal and found the following external and internal injuries.
External Injuries:
(i) Incised Wound 4/1/2" x 1/1/2" x 2" on head, slightly right side to middle line.
(ii) Incised Wound 3/1/2" x 1" x 1/1/2" on left parietal region.
(iii) Incised would 4" x 1/1/2" x 2/1/2" on back, 2" away from lumber vertibra, on right side at upper border of pelvic bone.
(iv) Contusion with diffuse swelling 3" x 2" on left elbow joint.
Internal Injuries:
(i) Fracture of skull bone at vertex.
(ii) Fracture of left elbow joint.
13. It was also stated by Dr. Meena that brain & scalp were also cut.
14. All the internal injuries were that result of the external injuries. In his opinion the cause of death was hemorrhagic shock due to cutting of scalp bone and brain. All the injuries were antemortem in nature. He prepared postmortem report.
15. There is no dispute that deceased Sahablal metwith a homicidal death and this fact is amply established by the statement of Dr. Meena. It has also been proved by the prosecution that at the time of medical examination, there were three visible injuries of blunt weapon on the person of Mahaveer Prasad. Looking to the duration of these injuries they could have been sustained in the alleged incident.
16. The learned counsel for the appellants contended that all the eye-witnesses produced by the prosecution are not only chance witnesses, but they are interested witnesses also, being the relatives of the deceased and, therefore, their testimony could not be relied on by the trial Court. No independent witness was produced by the prosecution. The learned counsel further contended that the trial Court did not place reliance upon the testimony of the alleged eye-witnesses with regard to participation of the accused - persons who have been acquitted. In these circumstances, the trial court committed mistake and illegality in placing reliance upon the testimony of these witnesses with regard to involvement of the appellants in alleged crime. He also contended that statements of the alleged eye witnesses are contradictory. They have made the improvements in their on oath statements from their police statements and in view of that, their testimony is not trustworthy. It was also contended that co-accused Surendra absconded during the trial and only three appellants have been convicted by the trial Court. Four accused only could not form the unlawful assembly and, therefore, the appellants could not be held guilty under Section 147, 148 & 302/149 I.P.C. The learned Public Prosecutor supported the judgment of the trial Court and argued that the testimony of the eye-witnesses is believable and conviction could be recorded by the trial court on the basis of ocular and medical evidence adduced by the prosecution.
17. The prosecution case rests upon the testimony of PW-3 Om Prakash, PW 4 Mahaveer, PW 5 Anandilal, PW 14 Birbal and PW-15 Vishnu. In a written report Ex. P 5, Birbal, Anandilal, Om Prakash and Munna @ Munir Beg were named as eye-witnesses of the occurrence. The learned trial Judge did not place reliance upon the testimony of PW - 9 Munir Beg who turned hostile. He stated in his Statement that he did not see Radheyshyam inflicting injury on the head of Sahablal. He further stated that he did not see surendra giving Gandasi blow on the head of Sahablal, having perused the entire statement of PW 9 Munir Beg, we also are of the opinion that he is not a reliable witness and his testimony is of no help to the prosecution. The prosecution examined PW 8 Jagannath and PW 11 Chouthmal also as eye-witnesses but they did not support it and turned hostile.
18. PW 15 Vishnu stated that on November 15, 1993 at about 4:00 p.m., Radheyshyam, Prakash ( @ Omprakash), Surendra, Babulal, Girraj, Chhitarlal, Mukut, Ramgopal, Chandalal and others attacked on Sahablal, Radheyshyam, Surendra and others were having Sword, Gandasi and lathies respectively. Radheyshyam inflicted injury with sword on the head of Sahablal and Surendra gave Gandasi blow on the waist of Sahablal. Others gave Gandasi blow on the waist of Sahablal. Others gave lathi blows on the person of Sahablal. Anandilal and Munir Beg came to rescue Sahablal. Sahablal became un-concious and he was taken to his house by the villagers. Jagannath was also beaten by the accused. He also stated that in total, there were twelve accused person. Having perused the testimony of PW 15 Vishnu, we come to the conclusion that he is not a reliable witness and no reliance can be placed upon his testimony. He was not named in the written report Ex. P- 5A which was lodged by injured witness Mahaveer Prasad. It was not stated by PW. 15 Vishnu that Mahaveer Prasad also was beaten, whereas PW 4 mahaveer prasad stated that he also sustained injuries in this incident. As per statement of PW. 8 Jagannath, when the was beaten, Sahablal was not there. It was also stated by Vishnu that when incident took place, he was busy in preparing tea and did not go to the place of occurrence. Looking to these facts, in our view, Vishnu did not witnesses the incident and so he does not help the -prosecution.
19. PW 3 Om Prakash stated that on the said day at about 4:00 p.m., 15 to 20 persons came in a tractor. At that time Sahablal, Jagannath & mahaveer Prasad were going from the market to the house of Sahablal. Accused-Radheyshyam was having sword, Surendra was carrying Gandasi, Badri was having Kuntia, Babulal, Prakash, Girraj and others were armed with lathies. The incident took place at a place which is popularly known as 'Leva' near boundrywall of a school. He further stated that Radheyshyam inflicted injury with his Sword on the head of Sahablal. Surendra gave Gandasi bow on the head of Sahablal. Badri inflicted injury with Kuntia and Prakash gave lathi blow on the person of Sahablal. Other accused inflicted injuries on the back and leg of Sahablal. Girraj, Prakash and Babulal gave lathi blows to Mahaveer. Jagannath was also beaten.
20. It was also stated by him that Sahab Lal sustained injury on his neck also. Birbal, Anandilal & Munna intervened. Sahablal fell down at the spot. Thereafter, Sahablal was taken to Itawa and later on to Kota where he died. In Cross-examination be admitted that his house is away from the place of occurrence, he had been sitting at the shop of Gulabchand since 2:00 p.m. from where we went to 'Leva' to urinate and remained there for two hours till 4:00 p.m. In later part of the cross-examination, he stated that he left his house, at 10:00 a.m. and reached at Gulabchand at 2:00 p.m. Thereafter, he stated that it was true that on seeing the tractor he came to place 'Leva' at about 4:00 p.m. He admitted that he is the son on Sahablal's Uncle. He also stated that after the incident, he never went to the house of Sahablal till date.
21. Having perused the above statement of PW 3 Om Prakash, We are of the view that he is not a reliable witness. He is not only partisan, But a chance witness also. There are material discrepancies between his statement and the statement of PW 4 Mahaveer who is an injured witness. As already stated, PW 3 Om Prakash stated that Badri gave kuntia blow,Prakash gave lathi blow and others except Radhey Shyam inflicted injuries on the person of Sahablal but as per statement of Mahaveer except Radhey Shyam & Surendra, no other accused inflicted injury on the person of Sahablal. Om Prakash also stated that Prakash gave lathi blow to Mahaveer but, mahaveer did not state that Prakash caused injury to him. It was also stated by Om Prakash that Sahablal sustained injury in his neck but no injury on the neck of the deceased was found at the time of medical examination as well as on post-mortem examination. He is a cousin of the deceased. Had he seen the incident, he would have gone to the house of the deceased. But as already stated, in his cross-examination, he stated that after the incident, he never visited the house of the deceased. It shows his un-natural conduct. These facts go to show that he had not seen the incident and his testimony cannot be relied upon and it is liable to be rejected in toto.
22. PW 5 Anandilal was named as another eye-witness in the written report Ex.P5A. He stated that on November 15, 1993 at about 4:00 p.m. about 20 persons including Badirilal, Radhey Shyam, Prakash, Babulal, Surendra, Chandalal, Mukut, Ramgopal & Mangilal armed with Gandasi, Kuntia, and lathies, came in a tractor at the place of occurrence. After having alighted form the tractor they started giving beating to Sahablal and mahaveer. Prakash gave lathi blow to mahaveer. Surendra gave Gandasi blow on the head of Sahablal. Sahablal sustained injuries on his head and waist. Mahaveer suffered injuries on his shoulder and leg. Sahablal fell down at the spot and thereafter all the accused persons beat Sahablal. Having scrutinized the testimony of this witness, we come to the conclusion that he did not witness the incident, he is a chance witness. He stated in his cross- examination that from his house, he went to the tea shop of Chouthmal for taking tea at about 12:00 noon and remained there till 4:00 p.m. His house is situated at a distance of one furlong from the place of occurrence as admitted by him. He did not state that appellant-Radhey Shyam inflicted injury with sword on the person of Sahablal, whereas PW 4 Mahaveer deposed that Radhey Shyam gave sword blow on the head of the deceased, it was also stated by Afiandilal that Sahablal was beaten by all the accused. But, as a already discussed above, mahaveer deposed that except Radhey Shyam and Prakash, none caused injury to Sahablal. Anandilal also stated that Prakash gave lathi blow to Mahaveer, whereas Mahaveer did not state that he was given lathi blow by Prakash @ Om Prakash. Apart from the above facts, Anandilal couldn't identify Babulal and Om Prakash in the Court. Looking to the discrepancies between his and Mahaveer's statement and other facts stated above, it is crystal clear that he was not an eye witness of the occurrence and so no reliance can be placed on his testimony.
23. So far as PW 14 Birbal is concerned, having perused his statement, thoroughly and minutely, we can say that he is also not a reliable witness and he had not seen the incident. In his examination, he stated that Radhey Shyam inflicted two injuries with sword on the person of Sahablal, one of which was on his head. Surendra gave Gandasi blow on the head of Sahablal, mahaveer sustained injury in his leg which was caused by Girraj. Babulal inflicted injury on the hand of mahaveer. In his cross-examination, he admitted that he was class-fellow of mahaveer. He also stated that at the time of occurrence, he was at the hotel of Kailash. He admitted that he do not reside near the place of occurrence. He also stated that on hearing he and cry, he reached at the spot and found Sahablal lying there. He also admitted that PW 3 Om Prakash is his cousin. As already stated, PW 3 Om Prakash admitted that he is the son of Sahablal's Uncle. Therefore, it is clear that Birbal is a chance as well as partisan witness and he had not seen the incident.
24. Now, we come to the testimony of PW 4 mahaveer, who is an injured witness. He is the real brother of the deceased. He stated that on the said day at about 4:00 p.m., in the market of Lohawad, Chandalal, Badrilal, Radhey Shyam, Prakash @ Om Prakash, Babu, Surendra, Girraj, Mangilal, Mahendra, Ramgopal & Mukut came in a tractor. Radhey Shyam was armed with sword. Surendra, Babu, Mukut and others were having Gandasi, Lathies, Kuntia respectively. He further stated that Surendra gave Gandasi on the head of Sahablal. Radhey Shyam inflicted injury with sword to the head of Sahablal. Sahablal fell down and thereafter Radhey Shyam gave second blow with his sword to the waist of Sahablal. He also stated that Babulal, Mangilal and Girraj beat him with lathies and he sustained injuries on his back, leg and left hand. Jagannath was also beaten by Girraj, Who was sitting on the shop of Kailash. Anandilal, Munir Beg, Birbal and Om Prakash rescued them. He further stated that both he and Sahablal were medically examined. Sahablal was taken to Kota Hospital, where he was declared dead. He reported the matter to the Police vide Ex.P5A.
25. So far as the appellants @ Om Prakash and Babulal are concerned, as per statement of PW 4 Mahaveer Prasad, Prakash did not caused any injury either to him or to Sahablal. The written report Ex.P5A was submitted to the Police by PW 4 mahaveer Prasad himself, wherein it was not stated that Babulal had caused an injury to him. In his cross-examination Mahaveer Prasad stated that Babulal inflicted injury on his back and not ori his hand. But, at the time of medical examination, there was no injury found on his back. In these circumstances, it cannot be held proved that the appellant Babulal inflicted injury to PW 4 Mahaveer Prasad and thus, in our opinion, the prosecution has failed to prove the participation of the appellants Babulal & Om Prakash in the alleged incident and, therefore, they were wrongly convicted by the trial court. No charge against them has been proved beyond reasonable shadow doubt by the prosecution and their appeal deserves to be accepted.
26. The trial Court did not place reliance Upon the testimony of PW 4 Mahaveer Prasad in respect of Ramgopal, Mangilal, Mukutbihari, Mahendra, Badrilal, Girraj Prasad, Chhitarlal and Chandalal. In appeal, his testimony is not found reliable against Prakash @ Om Prakash and Babulal, and, therefore, the question arises is as to whether his testimony is trustworthy in so far as the appellant Radhey Shyam is concerned.
27. The Apex Court in State of Punjab v. Suraj Ram, held that:-
"The last finding of the High Court is solely based on the ground that the claim of the two eye-witnesses that they had seen the murder of Brij Lal was highly improbable. Even if we proceed on the assumption that the finding is unexceptionable still then the High Court was not at all justified in rejecting their evidence so far as it related to the murder of Tulsa Ram on that score alone for law is well settled that when evidence of a witness is rejected in part a duty is cast upon the Court to sift his evidence with more then ordinary care and caution to find out whether the rest of the evidence is fully trustworthy, either intrinsically of by reason of corroboration from other trustworthy sources. Indeed, as noticed earlier, the High Court itself negatived an identical threshold contention raised by the respondents based on the maxim "Falsus in uno, Falsus in Omnibus."
28. In Nadodi Jayaraman etc. v. State of Tamil Nadu, it was held that:-
"This Court has time out of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co- accused, is by itself no ground for rejecting the whole body of their testimony."
29. Keeping in view, the above principle laid down by the Hon'ble Supreme Court, we have scrutinized the testimony of PW 4 mahaveer Prasad. In our view, his testimony in respect of the appellant Radhey Shyam is reliable. As already stated, PW 4 mahaveer Prasad stated that Radhey Shyam inflicted injuries on the head and waist of the deceased. He was corroborated by the medical evidence. In the post-mortem examination, incised wounds were found on the head and waist of the deceased. These injuries were of sharp weapon like sword etc. Thus, PW 4 Mahaveer Prasad gets corroboration from the medical evidence. Moreover, he himself sustained injuries in the same incident in which Sahablal was beaten. Dr. Meena found three visible injuries on the person of Mahaveer Prasad at the time of him medical examination. In Surjit Singh v. State of Punjab, it was held that nephew of the deceased who had suffered, grievous injuries in the occurrence was a natural and stamped witness. In Sardul Singh v. State of Punjab, it was indicated that the presence of witness who received injuries during course of incident, can not be doubted. Where there are number of injuries on the deceased and the witnesses have given some details about the manner in which they were inflicted, each witness cannot be expected to note the details in seriatem. Bankya v. State of Maharashtra, was the case wherein Hon'ble Supreme Court observed that presence of the injured witnesses at the scene of occurrence cannot be doubted and being victim themselves they would not leave out real assailants and substitute them with innocent persons.
30. In view of these judicial pronouncements, PW 4 mahaveer Prasad can be relied on, so far as his testimony against the appellant Radhey Shyam is concerned. Ofcourse, he is the real brother of the deceased but on this count alone, hie testimony qua the appellant Radhey Shyam, cannot be rejected. The Apex Court in Hukam Singh and Ors. v. State of Rajasthan, held "that the Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "Interested Witnesses. The only premise for dubbing them as "Interested Witnesses" is that they were the kith and kin of the deceased. Why should" such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to being the offenders of the murder of their bread earner to book. Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder vide; Delip Singh v. State of Punjab, Gulichand v. State of Rajasthan and Dalvir Kaur v. State of Punjab. This Court also expressed the same view in Sukhdeo v. State of Rajasthan.
31. It is true that none of other alleged eye-witnesses produced by the prosecution, has been found trustworthy and only PW 4 Mahaveer Prasad is the reliable witness regarding the injuries sustained by the deceased and caused by the appellant Radhey Shyam, but conviction can be maintained on his testimony alone. In Amrik Singh v. State of Rajasthan, the Apex Court held that "it is settled law that the evidence has to be weighed and not counted. The testimony of a sole eye witness, whose testimony suffers from no infirmity whatsoever, can by itself form the basis of conviction. We have found. Trilok Kumar (PW 2) to be a highly reliable witness whose testimony suffers from no blemish at all. His testimony has also received corroboration from the medical evidence and other evidence. In another case, State of Haryana v. Manoj Kumar, the Apex Court held that "Rohan (PW 14) is the sole eye - witness of the fatal knock down by accused. But, that cannot be held to be an infirmity of the prosecution case. A conviction can be based and the verdict of the Court can rest even on the testimony of a solve witness, if the Court is fully satisfied the such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt."
32. We have scrutinized the evidence of PW-4 Mahaveer Prasad closely and in great details with care and caution; in order to satisfy ourselves with regard to the truth, so far as the involvement of the appellant Radhey Shyam is concerned, and we find his testimony reliable and trustworthy. Thus, it has been amply proved by the prosecution evidence that the appellant Radhey Shyam inflicted two injuries with his sword on the head and waist of the deceased. At this stage, it would be proper to mention that the recovery of the sword at the instance of the appellate does not connect him with the alleged crime as it was not found stained with human blood on the examination by the S.F.S.L., Jaipur. In our considered view, the recovered sword was not that with which the appellant inflicted injuries to the deceased.
33. It was also contended by the learned counsel for the appellant "that if it is held that the appellant Radhey Shyam caused injuries to the deceased, even then, no case under Section 302 is made out. At the most, the appellant can be held guilty under Section 304 Part-II IPC. Learned counsel contended that the appellant had no intention to cause death or such bodily injury which was sufficient in the ordinary course of nature to cause death. In support of his contention he cited (1) Masumsha Hasanasha Musalman v. State of Maharashtra, (2) Camilo Vaz v. State of Goa, (3) Malkiat Singh @ Pappur v. State of Haryana.
34. We have considered the above contentions and perused the rulings cited by the learned counsel. In our opinion, these rulings do not help the appellant. In 'Masumsha Hasanasha Musalman v. State of Maharashtra,' only one blow was inflicted with jambiya (dagger) causing incised wound in the left infra clavicular region resulting in death. But, in the instant case, the appellant inflicted two incised wounds with a sword which is a deadly weapon on the head, a vital part of the body, and the waist of the deceased. He was not satisfied with causing only one blow but repeated his act and inflicted another injury on the waist of the deceased. In 'Camile Vaz v. State of Goa, 'accused were armed with dandas, bottles and cycle chains and not with a deadly weapon like axe and sword etc. In 'Malkiat Singh @ Pappu v. State of haryana,' there was a sudden quarrel. Accused and deceased were under influence of liquor and injuries were caused at spur of moment. In the instant case, when the appellant Radhey Shyam came at the place of occurrence, he was armed with a sword. It is also clear from the evidence of PW-4 Mahaveer Prasad that the appellant came at the spot with the intention to cause such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause death. The injury caused by the appellant on the head of the deceased was sufficient in the ordinary course of nature to cause death. Of course, there were two incised wounds on the vertex of head and left parietal region respectively and as stated by PW 4 Mahaveer, accused-Surendra also, who absconded during the trial, gave gandasi blow on the head of the deceased, but looking to the dimensions and nature of the aforesaid incised wounds, in our considered view, both the injuries individually were sufficient in the ordinary course of nature to cause death. On the post-mortem examination, Dr. Meena found fracture of skull bone at vertex. It was also found by him that both brain and scalp were also cut. In these circumstances, it can safely be inferred that the appellant-Radhey Shyam had intended to kill Sahablal and cause such injury which was sufficient in the ordinary course of nature to cause death. Therefore, the rulings cited by the learned counsel are not applicable to the facts of the instant case and the charge under Section 302 IPC is found proved against the appellant Radhey Shyam and he has rightly been convicted for the murder of Sahablal by the trial Court. So far as other charges are concerned, the prosecution has failed to prove that there were five of more persons who participated in the incident. Hence, no case under Sections 147, 148 is made out against the appellant.
35. Consequently, the appeal of the appellants Babulal and Prakash @ Om Prakash is allowed. While setting aside their conviction and sentence under Section 147, 148, 302/149, they are acquitted of all the charges. They are on bail, therefore, their bail bonds stands cancelled.
36. The appeal of the appellant Radhey Shyam is partly allowed. While modifying the judgment and order of the trial Court, he is acquitted from the charges under Section 147, 148 1PC. The judgment of his conviction and sentence under Section 302 IPC, passed by the trial Court is upheld.