Bhanwar Singh & Ors. vs The State of Rajasthan

This appeal is directed against judgment dated 1.5.07 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in

Sessions Case No.97/05, whereby the accused appellants have been convicted and sentenced as under :

Bhanwar Singh, Jaswant Singh & Sawai Singh

Section 302/34 I.P.C.

Imprisonment for life and a fine of Rs.3000/-; in default of payment of fine to further undergo two years'' simple imprisonment.

Gayad Singh

Section 302/34 I.P.C.

Imprisonment for life and a fine of Rs.3000/-; in default of payment of fine to further undergo two years'' simple imprisonment.

Section 4/25 of Arms Act

One year''s simple imprisonment and a fine of Rs.500/-; in default of payment of fine to further undergo 15 days'' simple

imprisonment.

All the sentences have been directed to run concurrently.

The prosecution story as unfolded during the trial may be summarized thus: Mag Singh s/o Guman Singh, resident of Bidadnagar(Tena) was

engaged for the job of digging of nadi under Famine Relief Work. On 23.5.05, Mag Singh accompanied by Gulab Singh S/o Mool Singh was

going to attend his duties. On the way, Mool Singh S/o Dhan Singh also joined him. When they hardly covered the distance of 200-300 steps from

Mool Singh Ki Dhhani, Bhanwar Singh, Gayad Singh, Jaswant Singh and Sawai Singh, all sons of Padam Singh, who were sitting hided in Kan

Singh''s Kheda, armed with Lathis and Dharia obstructed the way of Mag Singh and with intention to kill started beating him with Lathis and

Dharia. They warned Mool Singh and Gulab Singh that they should remain away from Mag Singh, else they would also be killed. After beating, all

the four persons fled away from the place. On account of injuries suffered, Mag Singh fell down on the spot. Mool Singh and Gulab Singh

informed Khiv Singh about the incident occurred, who rushed to the place of occurrence and found his brother Mag Singh lying unconscious. On

account of injuries suffered on head, hands and back, the blood was oozing out of his body. Khiv Singh accompanied by Mool Singh, Roop Singh

s/o Bagatavar Singh, Bheru Singh s/o Chutar Singh put the injured-Mag Singh in a camel cart and proceeded to hospital at Shergarh, however,

Mag Singh expired on the way just before 2 kms from Shergarh. Deceased Mag Singh in the same camel cart was taken to police station,

Shergarh and a written report (Ex.P2) was submitted to the SHO, Police Station, Shergarh.

On the basis of the written report (Ex.P2), the police registered an FIR (Ex.P3) for offence under Section 302/34 IPC and investigation

commenced.

After inquest proceedings, the body of the deceased Mag Singh was subjected to autopsy by Dr. Ganpat Singh Purohit, Medical Officer,

Community Health Centre, Shergarh. During the investigation, necessary memos were prepared. Accused persons were arrested and at their

instance, recovery of the Lathis, Axe etc. were made. The blood stained cloth of the deceased, the blood stained pant of accused Bhanwar Singh,

Lathis and Axe were recovered, which were sent for examination to the Forensic Laboratory. The FSL Report was obtained.

After completion of investigation, the police filed charge sheet against accused appellants-Bhanwar Singh, Jaswant Singh and Sawai Singh for

offence under Section 302/34 IPC and against Gayad Singh for offences under Section 302/34 IPC and 4/25 of Arms Act before the Judicial

Magistrate, Balesar, District Jodhpur, which was committed to the Session Judge, Jodhpur, which was later transferred for trial to the Court of

Additional Sessions Judge (Fast Track) No.1, Jodhpur.

The trial Judge framed the charges against the accused Bhanwar Singh, Jaswant Singh and Sawai Singh for offence under Section 302 or

302/34 and against accused Gayad Singh for offence under Section 302 or 302/34 IPC and Section 4/25 of Arms Act. The accused appellants

pleaded not guilty and claimed trial.

During the trial, the prosecution got examined as many as 26 witnesses (PW 1 to PW 26) and documentary evidence was exhibited as Ex.P/1

to Ex.P/31. The statements of the accused persons were recorded u/s. 313 Cr.P.C., wherein they denied their involvement in the commission of

the crime as alleged and stated that on the date of occurrence, they were in Gujarat for the job. In defence, Jalam Singh (DW 1) was examined as

witness and statements of Roop Singh and Mool Singh recorded by the police under Section 161 Cr.P.C. were exhibited in evidence as Ex.D1 &

Ex.D2 respectively.

The learned trial Court after considering the evidence available on record and the submissions made by the parties, convicted and sentenced the

accused appellants as indicated above. Hence, this appeal.

Heard the learned counsels for the appellants and learned Public Prosecutor.

Mr. Nishant Bora, learned counsel appearing for the appellants submitted that the learned trial Judge has failed to appreciate the evidence on

record in correct perspective which has resulted in erroneous findings being arrived at. Learned counsel submitted that out of three, two eye

witnesses examined by the prosecution namely, Gulab Singh (PW 3) and Smt. Jor Kanwar (PW 4) have turned hostile and not supported the

prosecution case. It is submitted that from bare perusal of statement of Mool Singh (PW 17) reveals that he is not worthy of credence and on the

basis of his deposition, the accused appellants cannot be convicted. Learned counsel submitted that as per deposition of the said eye witness, they

did not intervene and attempted to rescue the deceased Mag Singh, but simply requested the accused persons not to beat Mag Singh and thus, the

conduct of the alleged eye witness is highly unnatural and indicates that they were not present when the incident occurred. Learned counsel

submitted that it has come on record that on being informed about the incident Khiv Singh rushed to the place of occurrence and then went back to

his home to bring the camel cart, which also appears to be improbable inasmuch as, on being informed about the severe beating, obviously a

prudent man will immediately make necessary arrangement to take the injured to the hospital. Learned counsel while drawing the attention of this

Court to the deposition of eye witness Mool Singh (PW 17) submitted that it suffers from self contradictions and the statement of the witness

before the Court is in contradiction with his statement recorded by the police under Section 161 Cr.P.C. (Ex.D2). Learned counsel submitted that

the existence of the dispute between deceased Mag Singh and Manohar Singh, the brother of the accused appellants is introduced by the eye

witness Mool Singh (PW 17) by way of improvement, which has also not been proved by any cogent evidence and thus, there is total absence of

motive. Learned counsel submitted that Kan Singh''s agriculture field was just 300 steps away from the place of occurrence but no hue and cry

was raised by the deceased or the eye witnesses for help. Learned counsel submitted that the evidence of sole eye witness Mool Singh (PW 17) is

not free from blemish and suspicion and thus, not being wholly reliable cannot be made basis for conviction of the appellants. In support of the

contention, learned counsel has relied upon decisions of the Hon''ble Supreme Court in the matters of ''Bhimappa Chandappa Hosamani and Ors.

Vs. State of Karnataka'' (2006) 11 SCC 323 and ''Birappa and Anr. Vs. State of Karnataka'' AIR 2010 SC 3398. Drawing the attention of the

Court to the Arrest Memo (Ex.P13) and Injury Report (Ex.P14) of accused Jaswant Singh, learned counsel submitted that the injuries caused to

accused Jaswant Singh have not been explained by the prosecution and thus, genesis of the incident has apparently been concealed by the

prosecution. In support of the contention, learned counsel has relied upon a decision of the Hon''ble Supreme Court in the matter of ''State of U.P.

Vs. Atar Singh and Others'' AIR 2008 SC 411. Learned counsel submitted that Gayad Singh is alleged to have caused injuries to the deceased by

Dharia, however, Axe was recovered at his instance and as per deposition of Dr. Ganpat Singh Purohit (PW 6), no injury caused by sharp

weapon, was found on the person of the deceased. That apart, the axe recovered was not found blood stained as per FSL report (Ex.P/31) and

thus, apparently, it is a case of over implication and Gayad Singh has been falsely implicated in the case. It is submitted that as per deposition of

Dr. Ganpat Singh Purohit (PW 6) no single injury was found sufficient to cause death rather death has been caused on account of excessive

bleeding and shock by cumulative effect of the injuries caused and therefore, question of appellants being convicted for offence under Section

302/34 IPC does not arise. Learned counsel submitted that the motive as alleged is not proved by any cogent evidence on record and thus, in

absence of motive, the question of drawing inference of common intention of the appellants to cause death of Mag Singh does not arise. In

alternative, it is submitted by the learned counsel that on the facts and in the circumstances of the case where the intention of the accused to cause

death or to cause the injuries sufficient to cause death is not proved, the conviction deserves to be altered from 302/34 to 304 Part II/34 IPC. In

support of the contention, learned counsel has relied upon a Bench decision of this Court in the matter of ''Bhagga & Ors. Vs. State of Rajasthan''

(D. B. Criminal Appeal No.429/1992) decided vide judgment dated 5.5.17.

On the other hand, learned Public Prosecutor submitted that it is true that two eye witnesses Gulab Singh (PW 3) and Smt. Jor Kanwar (PW

4) have turned hostile but the guilt of the appellants stand established by the deposition of eye witness Mool Singh (PW 17) and other

corroborative evidence on record. Learned Public Prosecutor submitted that the credit of the witness Mool Singh has not been impeached in any

manner in cross examination and thus, he being a witness of sterling worth, the conviction of the accused can be based even on his sole testimony.

In support of the contention, reliance is placed on a decision of Supreme Court in ''Sudip Kr. Sen alias Biltu vs. State of West Bengal & Ors.'',

2016 Cri.L.J. 1121. Relying upon the decision of Supreme Court in ''Ramesh & Ors. vs. State of Haryana'', 2017 Cri.L.J. 352, learned Public

Prosecutor submitted that even the testimony of the hostile witness to the extent it support the prosecution case can be relied upon. Learned Public

Prosecutor submitted that since the common intention of the appellants to cause death of Mag Singh stand proved beyond reasonable doubt and

therefore, nothing turns on the question that no injury caused by sharp edged weapon was found on the person of the deceased. In support of the

contention, learned Public Prosecutor has relied upon the decision of Supreme Court in ''Bastiram vs. State of Rajasthan'', 2014 Cri.L.J.1761.

Learned Public Prosecutor submitted that oral evidence is sufficient for establishing the motive and no documentary evidence whatsoever is

required. In this regard, the reliance is placed on a decision of the Supreme Court in ''Kishore Bhadke vs. State of Maharashtra'', 2017 Cri.L.J.

It is submitted that non explanation of the injuries sustained by the accused which are superficial cannot be a solitary ground for doubting the

prosecution case if otherwise relied upon evidence is found to be credible. In support of the contention, reliance is placed on a decision of the

Supreme Court in ''Krishan & Ors. vs. State of Haryana'', (2006) 12 SCC 459. It is submitted that nothing turns on the question that no hue and

cry was raised by the eye witnesses when Mag Singh was being beaten by the appellants inasmuch as, the persons available at the Famine Relief

Work were at job inside the nadi and therefore, they could not have heard the hue and cry if any raised. Learned Public Prosecutor submitted that

on recovery memos, the witnesses have admitted their signature and therefore, their being declared hostile, in no manner, affects the prosecution

case. Learned Public Prosecutor urged that the trial Judge has examined the evidence on record in its entirety and the findings arrived at cannot be

said to be capricious or perverse so as to warrant interference by this court.

In reply to the arguments advanced by the Public Prosecutor, learned counsel for the appellants submitted that the injuries found on the person

of accused Jaswant Singh are not superficial and therefore, the decision of the Supreme Court in Krishan''s case (supra) does not support the

prosecution in any manner.

We have considered the rival submissions and scanned the evidence on record thoroughly.

The Medical Officer Dr. Ganpat Singh Purohit (PW 6) conducted autopsy of the dead body of Mag Singh. As per the post mortem report

(Ex.P/11), following ante mortem injuries were found on the person of the deceased Mag Singh:

(1) Lacerated wound 1.5x1.0x1.0, vertically placed on posterior aspect of upper most part of left forearm with fracture of left ulna.

(2) Lacerated wound 1x0.8x1.0 cm on upper & outer part posterior aspect of left elbow.

(3) Lacerated wound 0.7x0.5x0.3 cm on posterior aspect of left elbow 4 cm below injury No.2

(4) Lacerated wound 3x1.5x0.5 cm obliquely placed on middle of lateral aspect of right forearm.

(5) Lacerated wound 4x1.5x1.0 cm on posterior aspect of upper most part of right forearm.

(6) Lacerated wound 0.5x0.5x0.2 cm on posterior aspect of middle phalanx of middle finger of right hand.

(7) Two lacerated wounds upper 1.5x1.0x1.0 lower one 1.5x1.0x1.0 vertically placed 1 cm apart on postero -lateral aspect of

lower most part of right arm.

(8) Both upper medial incisors are missing exposing fresh area of wound.

(9) A curved lacerated wound (concanty towards right shoulder) 9x5x1.5 cm on postero-superior part of right Scalp.

(10) Lacerated wound 1x0.3x0.7 cm on posterior aspect of left side of neck (lower part)

(11) Lacerated wound 4x3x1 c.m. anterio-posteriorly placed on anterior aspect of right scalp.

(12) Four Bruises first 14x5 cm second 22x3 cm third 12x2 cm fourth 9x3 cm, one above other leaning in between space of varying

size from 3cm to 8 cm, obliquely placed with medial end up on posterior aspect of left chest.

(13) Bruise 10x 3 cm on outer aspect of upper part of left by.

(14) Lacerated wound 2x1x0.3 cm on anterior aspect of right leg vertically placed.

(15) Lacerated wound 3x1x0.5 cm on medial aspect of right leg 8 cm above medial molecules.

(16) Lacerated wound 2x1x1 cm, horizontally placed on anterior part of left knee.

(17) Abrasion 5x0.5 cm vertically placed on anterior & medial aspect of right knee.

(18) Four bruises first 9x2 cm second 12x3 third 12x3 fourth 14x3 cm almost horizontally placed, one above other leaning area of

varying size from 3 to 4 cm on posterior aspect of right chest.

(19) Bruise 17x3 cm, horizontally placed on right loin.

(20) Bruise 12x3 cm horizontally placed on anterior aspect of upper part of right arm (swollen)

(21) Bruise 14x2 cm horizontally placed on upper outer part of right buttock

(22) Bruise 1.5x0.5 on the inner aspect of middle part of bone dip.

(23) Abrasion 4x2 cm. outer part left collar bone."" The cause of death is opined to be cumulative effect of all multiple ante mortem

injuries leading to shock (haemorrhage).

Dr. Ganpat Singh Purohit (PW 6) in his deposition has categorically confirmed the injuries sustained by the victim as also the cause of death.

Thus, looking to the nature of injuries and the medical evidence on record the death of Mag Singh was concededly homicidal in nature.

The prosecution case was founded on testimony of eye witnesses Gulab Singh (PW 3), Smt. Jor Kanwar (PW 4), Mool Singh (PW 17) and

the persons who immediately after the incident reached the place of occurrence namely, Roop Singh (PW 1), Khiv Singh (PW 2), Bheru Singh s/o

Chhatar Singh (PW 16) and other corroborative evidence. The eye witnesses Gulab Singh (PW 3) and Smt. Jor Kanwar (PW 4) have turned

hostile and not supported the prosecution case.

In the first instance, we consider it appropriate to examine the testimony of eye witnesses examined by the prosecution.

Gulab Singh (PW 3) who was accompanying the deceased on the way to the site where Famine Relief Work was undergoing and alleged to

be eye witness of the incident has turned hostile. In his deposition, he has denied the fact that on the fateful day he was accompanying Mag Singh

rather, he stated that when he, Mool Singh and Khiv Singh, sitting at a place, were smoking from pipe, a boy came and said that Mag Singh is lying

in agriculture field of Kan Singh. Thereupon, they went to Kan Singh''s field and saw Mag Singh lying injured. Khiv Singh went to bring the cart

and thereafter Mag Singh was taken to the hospital at Shergarh. Later, it was revealed that Mag Singh had died. He while identifying the accused

persons present in the court denied the factum of their being involved in belabouring the deceased Mag Singh. In cross examination, he has stated

that accused persons are related to him in 7th -8th generation.

Smt. Jor Kanwar (PW 4) who was informed to be eye witness of the incident by Khiv Singh (PW 2) by way of an application (Ex.P8)

addressed to SHO, Police Station, Shergarh, has also turned hostile. She deposed that on the fateful day at 10 A.M. when she was grazing her

goats, she saw Mag Singh lying in the agriculture field as also four persons going away from the place but she does not know who were they. She

did not identify the accused persons present in the court as the persons going away from the place of occurrence. During cross examination, on

being confronted with her statement before the police (Ex.P/10), she declined to have given the statement in the terms recorded.

Mool Singh (PW 17) while supporting the prosecution case, deposed that on fateful day he also joined Mag Singh and Gulab Singh who were

going to Famine Work, so as to search his livestock. He identified the accused Bhanwar Singh, Gayad Singh, Jaswant Singh and Sawai Singh

present in the Court, as the persons who appeared from behind the Arno Plants and assaulted Mag Singh. He deposed that Gayad Singh was

armed with Dharia and other three accused were having lathis in their hands. In the first instance, Bhanwar Singh gave a lathi blow on the head of

the deceased Mag Singh. He and Gulab Singh (PW 3) requested them not to belabour Mag Singh, but the accused asked them to go away. All

the four accused belaboured Mag Singh. Then, he and Gulab Singh went to Mag Singh''s Dhani and informed Khiv Singh, the brother of Mag

Singh, about Mag Singh being beaten by the accused persons Bhanwar Singh, Jaswant Singh, Gayad Singh and Sawai Singh. They accompanied

by Khiv Singh came to Kan Singh''s field. Mag Singh had suffered injuries on the head, hands, back and legs and the blood was oozing out from

his body. He was unconscious and was not in position to speak much. Then, Khiv Singh went to his home, brought a Camel Cart. Mag Singh was

put into the Camel Cart, in the meantime Roop Singh (PW 1) and Bheru Singh (PW 16) also reached there. While they were on the way to the

hospital at Shergarh, just after 2-3 kilometers, Mag Singh died. Thereafter, they straightaway went to the Police Station, Shergarh. At the instance

of Khiv Singh, the report written by Jalam Singh already present there, was lodged in the police station. He further deposed that Mag Singh was

belaboured by the accused persons inasmuch as Mag Singh had earlier picked up quarrel with Manohar Singh, the brother of the accused. In

cross-examination, he stated that from the Kan Singh''s field, the Nadi where the Famine Work was going on, was at the distance of 200-250

steps and loud shouting would be audible at the site. He accepted the suggestion that none of them intervened to rescue Mag Singh, they only

made a request. When he was confronted with his statement recorded by the police under Section 161 Cr.P.C. (Ex.D 2), he responded in terms

that he does not know why the police has not recorded the facts in the terms stated.

Khiv Singh (PW-2) has deposed that Mool Singh and Gulab Singh came to his house and informed him about the incident. When he reached

on the spot, he saw his brother lying unconscious. He had suffered injuries on the head, hands, legs, back and stomach, his teeth were also found

broken and there were cuts on his entire body. From the spot, he went to his house, brought a Camel Cart and while he was taking Mag Singh to

the hospital at Shergarh accompanied by Roop Singh, Bheru Singh, Mool Singh and Gulab Singh, Mag Singh died when they were just 2

kilometers away from Shergarh. In the same Camel Cart, they went to police station and lodged the report (Ex.P/2) written by Jalam Singh. He

deposed that on Manohar Singh using filthy language, his brother Mag Singh had beaten him and that was the cause of the incident occurred. He

deposed that Kan Singh''s wife Smt. Jor Kanwar (PW-4) had informed him that she had witnessed the quarrel when she was grazing her goats in

the field. He deposed that work of digging of Nadi was going on at the distance of 700-800 steps away.

Roop Singh (PW-1) and Bheru Singh (PW-16) have deposed that they reached the place of occurrence after the incident, accompanied Khiv

Singh in the Camel Cart while taking Mag Singh to the hospital, who died on the way. They deposed that the details of the incident occurred were

made known to them by Khiv Singh (PW-2).

It is true that two out of three eye witnesses namely Gulab Singh (PW-3) and Smt. Jor Kanwar (PW-4), have turned hostile. But then, a

perusal of the statement of Gulab Singh reveals that he had denied the factum of his accompanying deceased Mag Singh, however, he admitted

that Mool Singh (PW-17) was accompanying him. It appears that Gulab Singh being related to the accused persons has turned hostile to save

them.

But then, we do not find any reason to reject the testimony of the eye witness Mool Singh (PW-17), as untrustworthy or unreliable. Nothing

has come on record indicating a good reason as to why the said witness shall falsely implicate the accused persons. The contradictions indicated

from the police statement (Ex.D/2) of the witness and deposition before the Court are minor and trivial in nature and contain no material

contradiction so as to make the evidence of the said witness doubtful. Suffice it to say that the trial Judge has arrived at finding that Mool Singh

(PW-17) is credible and reliable witness. We do not find any good reason to arrive at a different conclusion and doubt his truthfulness. It is well

settled that if testimony of solitary eye witness is of sterling worth, the conviction can safely be based solely on the testimony of that witness.

Coming to the recoveries made by the police at the instance of the accused persons, it is true that as per the deposition of eye witness Mool

Singh (PW-17), accused Gayad Singh was armed with Dharia, but at his instance, Axe was recovered and further, no injury inflicted to the

deceased is found to be caused by sharp edged weapon. It is to be noticed that except a lathi blow given by Bhanwar Singh on the head of the

deceased in the first instance, no injury caused is specifically attributed to any particular accused. The accused Gayad Singh might not have used

the sharp edged side of the weapon for causing the injuries but then his presence and participation in belabouring the deceased cannot be doubted.

The accused persons hiding behind the plants in Kan Singh''s field and assaulting the deceased when he reached the place proves their common

intention to belabour the deceased beyond reasonable doubt and thus nothing turns on the question that no injury on the person of deceased is

found to be caused by sharp edged weapon.

Coming to the question of absence of motive, it is noticed that Roop Singh (PW-1) has deposed that when Manohar Singh attempted to

commit theft, there was a quarrel between Bhanwar Singh and Manohar Singh, the brother of the accused persons and Bhanwar Singh had put

Aakra (milkweeds) in his eyes. Khiv Singh (PW-2) and Mool Singh (PW-17) also refers the said incident as the cause of accused appellants

belabouring deceased Mag Singh. Obviously, there cannot be any documentary evidence regarding the incident occurred and therefore, there is no

reason to discard the oral evidence led by the prosecution to prove the motive.

Learned counsel for the appellants has contended that non explanation of the injuries caused to the accused Jaswant Singh creates doubt about

the genesis of the incident which is fatal to the prosecution case. A bare perusal of injury report (Ex.P/14) reveals that two injuries suffered by

Jaswant Singh are reported to be simple in nature. As laid down by the Hon''ble Supreme Court in Krishan''s case (supra) relied upon by the

public prosecutor, merely because the prosecution has failed to explain injuries on the accused, the same cannot be a solitary ground for doubting

the prosecution case, if otherwise, evidence relied upon is found credible. Moreover, in the instant case, when the deceased Mag Singh was

belaboured by the accused persons, who were four in number, such superficial injuries being suffered by them during the course of the beating

cannot be ruled out. Moreover, such injuries may be self-inflicted as well. Learned public prosecutor is right in contending that reference of such

injuries being suffered by the accused during the course of the beating fortifies his presence and involvement in the incident of belabouring the

deceased.

Now the last question which deserves consideration of this Court is whether in the facts and circumstances of the case, wherein the incident

has occurred, the injuries caused by the accused appellants on the person of the deceased Mag Singh leading to his death can be said to be an act

of the accused appellants constituting culpable homicide not amounting to murder and the conviction of appellants by the trial court under Section

302/34 IPC deserves to be altered under Section 304 Part- I or 304 Part-II/34 IPC.

Indisputably, in the instant case, as per the medical evidence, the deceased suffered 23 injuries, most of them were on non-vital parts and any

single injury is not found fatal. Dr. Ganpat Singh Rajpurohit (PW-6) has deposed in unequivocal terms that none of the injuries inflicted was found

to be caused by sharp weapon and no single injury was sufficient to cause death. As a matter of fact, the cause of death is opined to be cumulative

effect of multiple ante mortem injuries leading to shock (haemorrhage).

In Madhu Sudan Satpati & Anr. vs. State of Orissa, AIR 1994 SC, 474, where there was only one injury on the head of the deceased and

that proved to be fatal, the other injuries were found to be simple and weapons used were also not deadly, the Hon''ble Supreme Court held that it

would be reasonable to hold that the accused persons had only knowledge that injuries inflicted were likely to cause death and accordingly, altered

the conviction from Section 304 part I IPC to punishable u/s 304 part II IPC.

In Nadodi Jayaraman vs. State of Tamilnadu, AIR 1993 SC 777, where 32 injuries were caused to the deceased, most of the injuries were on

non vital parts of the body, on the facts and in the circumstances of the case, the court held that appellant therein do not appear to have had the

intention of causing the death of the deceased or even causing such bodily injuries likely to cause death. They can at the best be attributed with the

knowledge that their act is likely to cause death or causing such bodily injury as was likely to cause death.

In Fateh Singh vs. State of Rajasthan & Anr., 1989(2) Crimes(Raj.) 249, this court relying upon the decision in the matter of Raja Ram vs.

State of Rajasthan, 1969 RLW 449, wherein no injury was inflicted to the deceased on any vital part of his body, the injuries inflicted were on

hand, feet, leg etc. this court held that act was done with the knowledge that it is likely to cause death but without any intention to cause death or to

cause such bodily injury as is likely to cause death.

In the considered opinion of this Court, had the accused persons intended to cause death of Mag Singh, nothing prevented them from causing

such injuries on the vital part of the body of the deceased which is sufficient to cause death. It was open for them to use sharp edged weapon

available with them. But then, the fact remains that the deceased was severely beaten by the accused persons and therefore, looking at the nature

and number of injuries caused it can be safely concluded that the accused had knowledge that the injuries caused are likely to cause death but they

had no intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, in view of the discussion above, it is not possible to hold the appellants Bhanwar Singh, Jaswant Singh, Sawai Singh and Gayad Singh,

guilty of committing an offence under Section 302 IPC.

For the aforementioned reasons, we partly allow the appeal of the convict appellants Bhanwar Singh, Jaswant Singh, Sawai Singh and Gayad

Singh and set aside their conviction for offences under Section 302/34 IPC and instead convict them for offence under Section 304 Part-II/34 IPC

and sentence each of them to suffer four years rigorous imprisonment. The conviction of accused appellant Gayad Singh under Section 4/25 of the

Arms Act and sentence awarded by the trial court is also maintained. Both the sentences of Gayad Singh shall run concurrently.

The accused appellants Bhanwar Singh and Sawai Singh who are on bail have already undergone the imprisonment for the period more than the

sentence awarded and therefore, their bail bonds shall stand discharged. The accused appellant Jaswant Singh, who is behind the bars has also

already undergone the imprisonment for the period more than the sentence awarded and therefore, he may be released forthwith if he is not

required in any other case.

The convict Gayad Singh, who is on bail, shall surrender for undergoing remaining sentence if he has not already served out the sentence awarded.