Pooran Ram and Others vs State of Rajasthan

By the Court. The appellants were tried by the Sessions Judge, Chum for the Charges Under Sections 147, 302 read with 149, 325, 323 read with 149 IPC. Vide judgment dated February 3, 1984 the learned Sessions Judge held them all guilty and convicted them Under Sections 147, 302 read with 149, 325 read with 149 and 323 IPC and sentenced them of one year RI u/s 147 IPC, imprisonment for life and a fine of Rs. 1000/-, in default of payment of fine to undergo six months RI each u/s 302 read with 149 IPC. Three years RI and a fine of Rs. 500/-, in default of payment of fine to undergo three months RI u/s 325 read with 149 IPC and six months RI u/s 323 IPC with an order that all the substantive sentences shall run concurrently.

Feeling aggrieved by their conviction and sentences the appellants have preferred this appeal in this Court.

Succinctly narrated the facts of the case giving rise to the trial and conviction of the appellants and the present appeal are that on August 24 1983 Kamli (PW 12) was sitting at her house at village Santyu along with her daughter Santosh (PW 13). Her son Ram Swaroop Sarup Ram was taking food there at the time. Pooran Ram appellant inflicted a lathi blow to the street dog, at which Ram Swaroop asked him as to why had he given a beating to his tamed dog. Pooran Ram hurled abuses and want away. After his going from there Ram Swaroop went to call Sarpanch Mala Singh (PW 4). Karnli and Santosh also accompanied him. When Ram Swaroop reached near the house of Ladu Ram, appellants Bhagwana Ram, Pooran Ram, Mohan Sugna Ram, Shishupal and Udmi Ram went there. Bhagwana Ram inflicted lathi blow on the head of Ram Swaroop. Then Udmi Ram inflicted lathi blow on his head. Ram Swaroop fell down. Then Pooran Ram inflicted blow on the left eye of Ram Swaroop. Thereafter all the appellants gave a beating to him. In order to rescue him Kamli and Santosh (PW s 12 and 13 respectively) fell on Ram Swaroop. Udmi Ram gave a beating to Kamli also. On the two ladies raising a cry Chandgi Ram (PW 1), Poran Ram (PW 2) and Banwari Das (PW 3) reached the site and rescued them The assailants went away from there. Santosh called her brother Mohan from the ''Baba'' near the house. Mohan called Sarpanch. Mala Singh (PW 4) & reached the site where Ram Swaroop was lying unconscious. Mala Singh telephonically informed Police Station, Tara Nagar and asked the Constable to send the Jeep. After half an hour a Jeep came from Tara Nagar, in which Mala Singh and Chandgi Ram took the injured to Churu Hospital. All the three injured were admitted there on receiving information from the Doctor, ASI, Sohan Lal of Police Station, Churu reached the hospital at 8 00 A.M. on August 25, 1983. He recorded the statement of Kamli and sent the statement to Police Station, Tara Nagar where at 9.00 A M Case against accused was registered u/s 147, 148,149,302,325, 323/34 and 448, IPC Dr. B L. Soni (PW 10), Medical Jurist, Government Hospital, Churu examined the injuries of Ram Swaroop and noted following injuries on his person:

Extensive echhyinosis of the upper of lower lids of left eye

Extensive diffused swelling on the left temporal region;

Lacerated wound 3" x 3" x bone deep on the left parietal region with diffused swelling all around it;

Lacerated wound 1" x 1/&" x bone deep on the left parietal region with diffused swelling all around it;

Multiple contusions of different shape, and seizes on the left shoulder with diffused swelling all over it;

Abrasion 1/4" x 1/2" on the left clavicle;

Contusion 4"x 1" horizantally placed on the left thigh autririorly;

Contusion 6" x 1" on the lateral aspect of left thigh;

Contusion 6" x 1" on the lateral aspect of right mid chest;

Contusion 4" x 1'' on the right mid dosral region;

Two abrasion each 1/4" x 1/2"-on the right lower dorsal region.

All the injuries according to the Doctor were simple in nature and caused by blunt weapon within twelve hours from the medical examination. The patient was semi conscious. The injury report is Ex. P/14.

On the same day Dr. Soni examined the injuries of Kamli and noted following injuries on her person:

Contusion 2" x 1" on the middle of the dorsal aspect of left fore-arm, with fractures of bone below it;

Contusion 4" x 1" on the right shoulder;

Contusion 4" x 1" on the upper front of the back of left thigh;

Contusion 5-1/4" x 3" on the lower part of the lateral aspect, of left side of chest with an abrasion 1" x 1/4" in size on it.

According to the Doctor injury No. 1 was grievous as per X-ray report Ex. P/12 and the: remaining injuries'''''' were simple and caused by blunt object within a period of twelve hours from the medical examination. The injury report is Ex. P/15.

Dr. soni also examined the injuties of Santosh and noted following injuries on her person;

(1) Lacerated wound 1" x 1/8" bone deep on the right parietal region;

(2) Lacerated wound 3" x1/3x bone deep on the left parietal region;

(3) Deffused swelling on the dorsum of left hand;

(4) Lacerated wound 1/4" x 1/8" x 1/8" on the web between the left index and middle fingers;

(5) Lacerated wound 1/2" x 1/16" x 1/16" on the praximal phallynx left index fingers;

(6) Abrasion 1/4" \\ 1/8" on the vertical aspect of middle phallynx of left index finger;

(7) Abrasion 1/8" x 1/8" on the pulp of the left index finger;

(8) Linear scratch 1/4" long on the right wrist.

According to the Doctor all the injuries were simple and caused by blunt object within a period of twelve hours from the medical examination. The injury report is Ex. P/16.

Ram Swaroop while admitted in the Hospital expired at 5.45 P.M. on August 27, 1983. Dr S.L. Soni conducted autopsy over the dead body of Ram Swaroop on August 28,1983 at 9.45 A.M. and noted following external injuries:

(1) Stitched wound 3" long on the left parietal region;

(2) Sttiched wound 1" long on the left pariental region 1.1/2" lateral do the injury No. 1;

(3) Extensive ecchymosed of the upper and lower lids of left eye;

(4) Ecchymosed of the upper and lower lids of right eye;

(5) Multiple irregular contusions of different shapes and sizes on the left shoulder with diffused, swelling all around;

(6) Extensive diffused swelling all over the left temporal region and left side of the face;

(7) Partially healed abrasion 1/4" x 1/2" on the left clavicle;

(8) Partially healed abrasion 3/4" x 1/4" on the lower part of the left leg anterorly;

(9) Horizontal contusion 4" x 1" on the left thigh anteriorly;

(10) Contusion 6" x 1" on the lateral aspect of left thigh;

(11) Two abrasions, partially healed, each 1/4" x 1/2" on the right lower dorsal region near the spines;

(12) Contusion 6" x 1" on the lateral aspect of right side of chest.

According to the Doctor all the injuries were antemortem in nature caused by blunt weapon. Injuries No. 1 and 2 were grevious and the rest simple. The Doctor noted fracture on the left parietal bone and extensive extra-dural haematoma on the left parietal and temporal region. In the opinion of the Doctor the cause of death was extensive extradural haematoma on the left parietal and temporal regions due to fracture of left parietal bone caused by external injuries. The injuries No. 1 and 2 in particular and all injuries together were sufficient in the ordinary course of nature to cause death. The post-mortem report is Ex. P/17.

On August 25, 1983 Station House Officer Bhanwar Lal (PW 16) of Police Station Tera Negar, on finding a case registered by ASI Govind Ram P.W. 6, took charge of the investigation and went to Churu hospital. He sent Govind Ram to the site. Govind Ram inspected the site and prepared the site plan Ex, P/4 and site inspection memo Ex. P/4A. He took the blood soil and the control soil from the site.

On August 27,1983 Bhanwar Lal SHO (PW 12) received the information of the death of Ram Swaroop. He went to the hospital on August 28, 1983 and prepared the inquest report Ex. P/22 and Panchnama of the dead body Ex. P. 23. The case u/s 207 therefore, was converted u/s 302 IPC. The SHO seized the blood soaked clothes of Ram Swaroop in possession. The SHO arrested Mohan Ram, Sugna Ram, Shishupal and Pooran Ram and two others Asha Ram and Shrawan Kumar (since acquitted by the trial Court on August 29, 1983). On August 31, 1983 those arrested accused furnished information for getting recovered lathies. In pursuance of their information lathies ware recovered by the SHO. On September 1983 Bhagwana Ram and Udmi Ram were arrested. They are said to have furnished information for getting recovered lathies and In pursuance of their information lathies were recovered.

Upon completion of necessary investigation charge sheet against six appellants and Asha Ram and Shrawan Kumar was filed in the Court of Munsif and Judicial Magistrate, Rajgarh. The learned Magistrate committed the case to the Court of Sessions Judge, Churu. The learned Judge char sheeted the appellants as stated earlier and recorded their plea. All of them denied the indictments and claimed to be tried. In order to substantiate its case prosecution examined sixteen witnesses in all. The learned trial Judge did not find the ease against Asha Ram and Shrawan Kumar proved and acquitted them of the charges. The case against the present appellants was however held to be established and the judgment under appeal was passed and they were convicted and sentenced vide judgment under apneal.

We heard Mr. Doongar Singh leanred counsel for the appellants, and Mr. Kanti Lal Jasmatiya, learned Public Prosecutor for the State.

The learned Counsel for the appellants has assailed the finding of the learned'' trial Judge on a number of grounds. It has been contended that Asha Ram and Shrawan Kumar have been acquitted by the trial Court which shows that either there was no evidence against them and they were falsely involved in the matter or they were really the assailants and in order to save them others have been falsely involved in the matter in order to bring the case within the ambit of Section 147 IPC

The learned Counsel for the appellants contended that origin of the quarrel hens not been brought on record because it is not believable that on a trivial matter of Pooram Ram inflicting lathi blow of the Dog and no hot altercation between him and Ram Swaroop so many persons would'' assemble in the late hour of the night and give beating to Ram Swaroop especially so when those people could not have Known that Ram Swaroop would pass that way at that time.

Another challenge to the finding of the learned Judge by the learned Counsel is that according to Kamli P.W. 12 and Santosh P.W. 13, Chandgi Ram P.W. 1 had reastred the site on their raising cries and Pooran Ram and Banwari as are said to have reached there still later and there fore none of these'' three witnesses could have seen the start of the quarrel. That, Kamli and Santosh might not have accompanied Ram Swaroop at the night time and ever if it was so as evident from their statements they were quite at a distance. That the statements are discrepant from their version before the police.

It has been vehemently argued by the learned Counsel that the appellants residing in different houses could not have made up their mind to assemble at the road to give a beating to Rom Swaroop because, as the prosecution case is, that immediately after Pooran Ram leaving the place where he had inflicted Dander blow to the dog, Ramswaroop left his meals half way and proceeded to Sarpanch Mala Singh P.W. 4. As such, the learned Counsel contended the presence of eight persons, at the site according the prosecution, two out of whom have been acquitted by the trial court, is an exaggerate version in order to make it a case of unlawful assembly so that persons against whom, there is no specific allegation of any act may also be convicted with tie help of Section 149 IPC.

The learned Public Prosecutor contentions fed these contentions and submitted that even if Chandgi Ram P.W. 1. Banwari Das P.W. 3 and Pooran Ram P.W. 2 witnesses might not have been there at the start of the beating still they had reached the side on hearing the cries of Kamli and Santosh and therefore, their evidence regarding the presence of the appellants should be believed.

The learned Public Prosecutor submitted that presence of Kamil and Santosh who bad accompanied Ram Swaroop is free from any suspicion and the learned trial judge has righgly-based conviction of their testimony.

At the very out set it may be observed that prosecution has not tried to bring true facts on the record regarding origin to the quarrel and presence of the assailants. The initial case was against the six assailants, but thereafter the Investigating Officer proceeded against Asha Ram and Shrawan Kumar also. No witness at the trial has stated about the presence of those two The witnesses rather have categorically stated that those two persons were not there. Investigating Officer has stated that it was through the statement of Banwari that name of Shrawan Kumar was disclosed. There being no evidence against those two accused, the learned trial Judge did not bold the case established against them and acquitted them of the charges. Acquittal of one or more accused out of the lot in a case like the present one, when the assailants are said to be six persons by the alleged eye witnesses the roping in of two more by the Police indicates the attempt of the Investigating agency for the reason best known to it to involve innocent persons also. This has legitimately given rise to the argument of the learned Counsel for the appellants that if two persons could be falsely implicated the possibility of be appellants being near relatives of Pooran Ram appellant with whom Ram Swaaoop is said to have quarrel, being falsely implicated in order to bring the case within the definition of unlawful assembly cannot be ruled out.

In order to appreciate the evidence on record and findings of the learned trial Judge we would first of all discuss the origin of the quarrel.

Kamli P.W. 12 and Santosh P.W. 13 have stated aboout there being quarrel between Ram Swaroop deceased and Pooran Ram appellant on the latter inflicting lathi blow on the Dog which Ram Swaroop claimed to his tamed one. These two witnesses have also stated about there being some quarrel between the two fifteen or twenty days prior to this incident, but both of them have not witnessed that quarrel and Kamli has stated that she was told so by Ram Swaroop. It is important to note that this fact is missing in the FIR (Ex.P/2) made by Kamli and her Police statement (Ex.P/4) and Police statement (Ex.D/5) of Santosh to which omission their attention was drawn and they could not explain the reason for not stating so before the Police. It so appears that because the incident is said to have taken place on a trivial matter of inflicting Lathi blow by Pooran Ram to the dog, which ordinarily could not have led an assembly of certain persons to give a beating to Ram Swaroop, the story of previous quarrel between the appellant pooran Ram and Ram Swaroop has been introduced. It is important to none that Mohan, brother of Ram Swaroop was there at the time in the ''Bada'' adjacent to the house and in the natural course of events he must have been informed about the threatening if any given by Pooran Ram appellant and the ladies instead of proceeding with Ram Swaroop in the night time must have asked Mohan, grown up person of twenty two years of age, to accompany Ram Swaroop. The suggestion to Kamli and Santosh by the defence counsel was that at that time they were there at their house and Mohan informed them them about Ram Swaroop being given a beating and then they rushed to the site. The witnesses have depied this suggestion. Though the suggestion appears to be plausible in the absence of any other evidence on the point, we are left with no alternative but to scrutinise the testimony of Kamli and Santosh taking them to be the persons present at the site.

These two witnesses have named all the six appellants as the assailants attributing specific over-act of causing injuries to Ram Swaroop to c Ram, Bhagwana Ram and Udai Ram. They have attributed the grevious injuries on the hand of Kamli to Bhagwana Ram. Santosh has stated about Shish pal injury on the back of Ram Swaroop. For the remaining appellants there is omnibus statement. that all of them gave a beating Chandgi Ram (PW 1) is said to have reached the site on bearing the cries of the two ladies and, there fore, naturally could not have seen the origin of the incident. According to Damli and Santosh when Ram Swaroop on receiving the Lathi'' blow by Bhagwana Ram on his bead fell on the injured Ram Swaroop and raised the cries and mean while Udai Ram and Pooran Ram also inflicted blows on the bead and eye of Ram Swaroop, Chandgi Ram as such could not have witnessed the actual infliction; blown by any body to Ram Swaroop. He can be believed only to the extent that Ram Swaroop was lying down and the ladies were lying on him in order to fescue him and certain Lathi blows were being inflicted. So far as Pooran,Ram (PW 2) and Banwari Das (PW 3) are concerned, suffice it to say that they having- reached the site after Chandgi Ram could not have seen more than what Chandgi Ram could see.

There is force in the contention of the learned Counsel for the appellants that prosecution has tried to implicate more assailants than they actually were in order to make it a case of unlawful assembly so that each person present there could be held responsible for any over-act of other Vicariously and the whole family may be sent behind the bars. The false implication of Sharwan and Asha Ram in the case cannot be taken lightly. Two persona have been falsely implicated without there being any iota of evidence against them. In such a situation possibility of one or two persons being included it the list of assailants in order to make the number five or more cannot be ruled out.

25 The incident of August 24,1983. On the next day statement of Mst. Kamli was recorded and on the basis of that Pancha-bayan, the FIR was chalked out. It was sent to the court on August 26,1983. There was thus sufficient rime for thinking over as who were to be the assailants. We do not mean to say that the case as a Whole is fabricated one. We would rather try to ascertain the actual number of the assailants and to find out whether the FIR is the spontaneous version of Kamli or it was at the intervention of others. It is not far to seek that the FIR is not the exact version of Kamli and some body also has interfered. Our opinion is based on one glaring factor i hat Kamli has specifically stated that she was not knowing the names of the fathers of Mohan, Shishupal and Sugna and that she had not told the Sub-Inspector the names of their father and that she could not say as to how the names of the fathers of these accused were there in Ex.P/2. She also stated that at that time Chandgi bad also not told the Sub-Inspector the names of the father of these persons. Thus the possibility of Chandgi Ram who only was present at the time of the statement of Kamli telling the name is ruled out and as such the names of the fathers offbeat accused being there in Ex. P/2 indicates improvement in the exact version given by Kamli Such a step can be taken by the Investigating Officer raises suspicion about the truthfulness of the pro-Section story that even those whom no over-act has been attributed were also there. In order to bold a person vicariously liable for the act of other by sharing the common object, it is necessary to find out whether all the assailants with common object and arrived at the site together and gave a beating to the victims. There may be certain cases in which persons present at the site may not initially be members of unlawful assembly but by their subsequent act or conduct may become members of unlawful assembly. In other words an assembly not, unlawful at the initial stage many turn up unlawful assembly by live or more persons participating in the Grime with a common object. As indicated in the site plan (Ex P/4). Ram Swaroop left his house and proceeded in the lane in front of the house. In one side there is the house of Udmi Ram appellant & opposite to that of Ladbu Ram Siyed. Udmi Ram happens to be the father of appellants Bhagwana Ram and Pooran Ram and it might be possible that after the hot altercation on Pooran Ram inflicting Lathi blow to the dog, he might have gone to his house and informed his brother Bhagwana Ram and father Udmi Ram about Ram Swaroop going to call Mala Singh Sarpanch (PW 4) In between the house of Udmi Ram and Ishar Ram there was a house of Hanuman Khati and the place to incident is at the mouth of of the lane in between the house of Gopal Singh and Ladu Ram Siyed iafront of the house of Udmi Ram. Ram Swaroop is said to have left his meals half way and proceeded to call Sarpanch Mala Singh (PW.4) which shows that there could not be time with Pooran Ram to go to the house of Ishar Ram and call his sons to help him in taking vengeance from Ram Swaroop for speaking ill to him for his giving Lathi blow to the Dog. It is not the case of prosecution that all the appellants were at the relevant time at the house of Udmi Ram. The prosecution case as coming forth from Santosh rather is that Pooran Ram, Bhagwana Ram, Sugnaram, Mohan Ram and Udmi Ram came from their houses. Meaning thereby they had not come from one house i e. the house of Udmi Ram where Pooran Ram might have gone. Possibility of Sugna Ram, Mohan Ram and Shishupal coming from their houses on hearing the cries therefore cannot be ruled out. The time of occurrence is said to be ten or eleven in the night. It was dark and Kamli and Santosh have admitted that there was neither any torch nor any lantern with them. According to Santosh they were at a distance of ten pawandas fifty feet behind Ram Swaroop. Kamli has stated that sky was cloudly and it was drizzling. She admitted that she was having poor eyesight for the last five or seven years. Thus she could not be in a position to see which of the assailants came with whom and from what direction and from which house. This version taken with the version of Santosh that the assailants had come from their houses and also that Bhagwan Ram came first of all and inflicted Lathi blow on the head of Ram Swaroop and then Pooran Ram and others came, raise suspicion about the prosecution case that all the assailants had formed an unlawful assembly and had come together to give to Ram Swaroop.

As discussed by us above their houses being at a distance they could not have known what exactly had happened between Pooran Ram appellant and Ram Swaroop deceased and Ram Swaroop''s passing that way that night. There is also no evidence to show that they had reached the site and tried to find out what had exactly happened which was natural in a case like the present one when the incident had taken place on a trivial point and which could not have been known by anybody else except Pooran Ram or at the most his father and brother, Udmi Ram and Bhagwana Ram whom he might have told on going to the house.

There being no specific evidence about the six appellants coming-together, the next question arising for determination would be whether all of them participated in the crime. The witnesses have stated that Bhagwana first of all inflicted Lathi blow on the head of Ram Swaroop and he feel down. Then there is allegation of Pooran Ram and Udmi Ram inflicting Lathi blows on the head and eye of Ram Swaroop. Then Kamli and Santosh fell over Ram Swaroop and Udmi Ram gave a Lathi blow on Kamli''s hand and one more Lathi blow on her body. After that Kamli and Santosh raised cries. Santosh has stated that Shishupal inflicted Lathi blow on the back of Ram Swaroop. Regarding Mohan Ram and Sugan Ram there is no specific evidence of any witness as to which victim and on what part of his body they actually caused injuries. The omnibus statement of the witnesses makes their presence doubtful. This fact coupled with the tempering with the version of Kamli in the FIR as observed above indicates that they were implicated at the intervention of some body else or by the Police in order to show the number of assailants to be five or more.

At the verge of repetition, it may be observed that just has Sharwan Kumar and Asha Ram have been falsely involved in the matter there could be possibility of Mohan Ram and Sugna Ram also being involved in the matter with the idea that they being the causing of Pooran Ram their being members of the unlawful assembly might be believed.

In view of the above discussion, we are of the opinion that the prosecution case about the assailants forming an unlawful assembly with the common object to give beating to Ram Swaroop is not believable and only t hose against whom there is allegation of any specific act may be held liable for their individual act

So far as Bhagwana Ram is concerned there is specific evidence that he was the first person who inflicted Lathi blow on the head of Ram Swaroop, which caused his fell. Santosh has stated about Pooran Ram and Shishupal inflicting Lathi blow to Ram Swaroop She has also stated about Bhagwana Ram, Pooran Ram and Udmi Ram causing injuries to her; mother and she herself being injured at the hands of the assailants-She has specifically stated that she could not say about any specific injury at any: particular part of the three victims by Mohan Ram and Sugan Ram. Thus there is no cogent evidence about Sugna Ram and Mohan Ram participating is the crime.

From this evidence, only four persons viz, Bhagawana Ram, Udmi Ram, Pooran Ram and Shishupal can be said to have participated in the crime.

The number of assailants having been taken to be less than five, the charge of, unlawful assembly is not substantiated. As such none of the assailants cap be held vicariously liable for, the act of others, and they would be held responsible for their own; acts. "Santosh has stated that Bhagwana Ram came first of al at the site and inflicted Lath blow on the head of Ram Swaroop. So is the version of Kamli, Chandgi Ram, whom we have considered to be not present at the site at the commencement of the quarrel even if taken to have seen the occurrence from a distance his version also is that Bhagwana Ram inflicted Lathi blow on the head of Ram Swaroop The learned Counsel for the appellants submits that even if it is believed that Bhagwana Ram inflicted Lathi blow on the head of the deceased still there being three injuries on the head, as mentioned in the injury report, and two as mentioned in the post-mortem examination report prepared by Dr. Sahdeo, Singh (PW. 11), it cannot be said with certainty as to which particular injury was caused by Bhagwana Ram The learned Counsel urged that in such circumstances, the offence of Bhagwana Ram. does not travel beyond sec 325 IPC.

Dr. B.L. Soni (PW 10) has stated about injuries Nos. 1 & 2 of the Postmortem Examination Report in particular and all other injuries together being sufficient in the ordinary course of nature to cause death. True it is that when there more than one person inflicting blows on a particular part of the body and all the injuries by different persons are grevious in nature, all of them may held equally responsible but in the case on band when only Bhagwana Ram has been specifically stated to be the author of the first blow on head of Ram Swaroop and the arbors of the head are not known, we do not consider it a case in which Bhagwana Ram''s case may be taken so lightly as the learned Counsel for the appellants wants us to take it. The reason is that the first blow was with such a force that Ram Swaroop fell down. Even if there were two injuries mentioned in the postmortem examination report, each one of them being fatal Bhagwana Ram can be held responsible of causing one fatal injury to Ram Swaroop, Kamli has specially stated that Bhagwana Ram came firsr of all and inflicted lathi blow on the head of Ram Swaroop and thereafter Pooran Ram came and inflicted lathi blow. If a person first of all inflicts lathi blow on the head of the victim which such a force that be falls down and the injury proves to be fatal then even in the given circumstances of the case i e. the origin of the quarrel not known and the prosecution story is believed, it being on a trivial matter and there being no previous enmity between (he assailants and (he victim, still the assailant of such an injury can be attributed with knowledge that forceful lathi blow inflicted by him any cause such bodily injury which may result into death. Offence of Bhagwana Ram, therefore, falls within the ambit of Section 304 Part-II, IPC.

Regarding Pooran Ram, the evidence is that he inflicted lathi blow to Ram Swaroop hat the version of the witnesses is devergent regarding the part of the body hit by that blow. Chandgi Ram has stated that Pooran Ram inflicted lathi blow on the head of Ram Swaroop and than Udmi Ram inflicted lathi blow on his right eye. On the other hand Kamli has stated about Pooran inflicting lathi blow on the right eye and Udmi inflicting lathi-blow on the head of Ram Swaroop. Ex. P/2 is the statement of Kamli on the basis of which FIR was chalked out. It is not mentioned therein that Pooran inflicted lathi blow on the eye of Ram Swaroop. Rather it has been mentioned there in that Pooran inflicted lathi on the head. The witness could not explain the discrepancy. Her, version is also different from other witnesses. No witness has stated about Pooran being author of two blow one on the eye and other on the head. Santosh has stated about Pooran giving lathi blow on the eye of Ram Swaroop. She has also stated about Shishupal inflicting one lathi blow on the back of Ram Swaroop.

In view of this type of varied version of the witnesses neither Udmi Ram nor Pooran Ram can be held guilty for the head, injury of Ram Swaroop. How ever, as there is evidence about these two and Shishupal in-flicting lathi blows after Ram Swaroop had fallen down. They ace, therefore, held guilty u/s 323 IPC for the injuries of Ram Swaroop. None of the wit-nesses is spacifie about the injuries sustained by Kamli and Srantosh. These two injured witnesses have stated that they are not in a position to say as to who caused injury on what part of their bodies There is how ever evidence about Udmi Ram. inflicting, Lalhi blow on the head of Kamli which according to the medical evidence caused a fracture and was therefore, disignated to be grevious injury, Udmi Ram is therefore, held guilty u/s 325 IPC for causing previous injury to Kamli.

The learned Counsel for the appellants conceded that in view of the facts and circumstances of the case and the injuries caused by the assail ants a lenient view may be taken in the matter.

Bhagwana Ram appellant was arrested, on September 1. 1983 and is in custody since then. He has been guilty u/s 304 Part-II. In our opinion five years RI and a fine of Rs. 1000/ would be adequate, for him.

Udmi Ram, Pooran Ram and Shishupal have beep held guilty u/s 323 IPC. Three months RI and a fine of rupees fine hundred would be adequate punishment for them. Udmi Ram had remained in custody for about four months. He was six years old on November 13, 1984 when his statement u/s 313 of the Code of Criminal Procedure was recorded. Thus he may be over sixty-six years old now and we do not consider it proper to send him behind the bars again and consider the imprisonment for the period he had remained in custody so far along with fine of Rs. 1000/-, to be sentence, which would meet the ends of justice.

Consequently, the appeal of Mohan Ram and Sugna Ram appellants is allowed and their conviction and sentence awarded to them are set aside and they are acquitted of the charges framed against them. Appeal of Bhagwana Ram, Pooran Ram, Udmi Ram Shishupal is partly allowed. Their conviction u/s 302/149 and 325 read with 149 IPC and their sentences on these counts are set aside. Instead of, Bhagwana Ram is convicted u/s 304 Part II, IPC and sentenced to five years RI and a fine of Rs. 1000/-, indefault of payment of fine to undergo six months RI Pooran Ram, Udmi Ramand Shishupal are held quilt u/s 323 IPC and sentenced to the period they had remained in custody so far which is about six month in the case of poonam Ram and about for months in the case of Udmi Ram and Shiahupal All these three appellants shall also be liable to be a fine of Rs. 500/- in default of payment of fine to under go, one months RI Udmi Ram is also convicted u/s 325 IPC for the grevious injury of Kamli to period he had remained in custody so far which is about four months and a fine of Rs. 1000/-, in default of payment of fine to under go two months RI. The substantive sentences of Udmi Ram will run conetirrtntly. Half of the amount of fine recovered from each of the accused shall be paid to Khimli, injured, mother of deceased Ram Swaroop, Bhagwana Ram is in custody since February, 3, 1984 and has thus suffers the shpstantive sentence a warded to him by this judgment. He shall be set at liberty on his depositing the amount of fine or suffering the sentence awarded in default of payment of fine. Pooran Ram, Udmi Ram and Shishup of are on bail. They are given two months time to deposit the amount of fine imposed on them by this judgment. On their doing so, their, bail bonds shall stand discharged.