MANU/RH/0324/1986

Equivalent Citation: 1986(2)W LN800

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Cr. Appeal Nos. 34 and 134 of 1978
Decided On: 22.01.1986
Appellants: Kamal alias Kamlesh and Anr.
Vs.
Respondent: State of Rajasthan
Hon'ble Judges/Coram:
G.M. Lodha and P.C. Jain, JJ.
Case Note:
Penal Code - Sections 302 & 326--No specific injury responsible for causing
death--No intention can be attributed to accused--Held, accused can be
convicted under Section 326 and not under Section 302.
From the evidence on record, it cannot be said that the specific injury which was
responsible for causing the death of the deceased persons was caused by these two
appellants From the appreciation of the evidence, it is difficult to say that the
accused-appellants intended to cause that very injury which was found to be fatal.
It cannot be said that the appellants have committed an offence Under Section 302
IPC. It can certainly be said that the accused-appellants have committed an offence
Under Section 326, IPC.
Appeal Partly Allowed
JUDGMENT
P.C. Jain, J.
1. These two D.B. Criminal Appeals arise out of the judgment passed by the learned
Addl. Sessions Judge Gangapur City, dated 20th December, 1977, in Sessions Case
No. 68 of 1979. State v. Kamal and 15 Ors. convicting and sentencing the appellants
Namai and Kasali under Section 302, IPC to imprisonment for life and a fine of Rs.
500/- and in default of payment of fine to further undergo 2 month's simple
imprisonment.
2 . Kamal is appellant in D.B. Cr. Appeal No. 34 of 1978 and Kasali is appellant in
D.B. Cr. Appeal No. 134 of 1978
3. Briefly stated, the prosecution story unfolded in the evidence is that Smt. Kalyani
and her son Angad were living in the house of her father as the legal heir since
Pagadi ceremoney was performed in favour of Angad, on account of which her
parental relatives were not pleased with them and they wanted to grab her father's
property after ousting them from the same. Kalyani (PW 4) reported orally to
Sukhrojpal, Head Constable, Police-post Bamanwas that on 26th July, 1978, in the
morning the accused persons, except appellants came to her field with their cattle
and laid them off for grazing her field. When she asked them not to do so, they

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 abused her and pushed her. In the mean time, her or other Mishriya and son Angad
came to her rescue. Both of them were given beating by Lathies and Kulharies by the
said accused persons. All of them ran to their houses for shelter. As they entered
their houses, the assailants Ram Singh, Amar Singh, Kasali, Ganga Sahai,
Ghanshyam, Mohan Singh, Babu, Bachu Gopi Sahai, Parmal etc. came from the field
together and entered the house to kill them. When Angad and Mishria fled out of the
house to the field for saving their lives they were followed and were caught in the
field of Gauri Lal. Their hands were tied and were thereafter dragged to Bamanwas.
The accused were pushing them by Kulharies and Lathis. When the crowd reached the
field of Ganga Vishan, Kamal armed with sword came running from the side of the
field and asked the accused to kill these two persons and started giving blows with
the sword. Others were beating them with Dandas and Axes. Kasali gave blows with
Kulhari. Both Angad and Mishriya died in the field of Ganga Vishan. In the same
occurrence, a member of the party of the accused Bhambhu was also murdered. A
case under Sections 302, 147, 148, 149, 452, 323 and 324, IPC was registered
against all the 16 accused. A cross-case was also registered for the murder of
Bhambhu. The police challaned both the parties and the persons of the complainant
party for the murder of Bhambhu and the persons of the party of the accused for the
murder of Mishariya and Angad. Both the cases were committed to the Court of Addl.
Sessions Judge, Gangapur City. In the cross-case, for the murder of Bhambhu, three
members of the party of complainant were convicted for the murder under Section
302 read with Sections 148 and 149 IPC. Two persons of the complainant party
Angad and Mishriya also died. The learned Addl. Sessions Judge vide his judgment
dated 20th December, 1977, acquitted 14 of the accused persons and convicted the
appellants, Kamal and 'Kasali', under Section 302, IPC and sentenced them for
imprisonment for life and a fine of Rs. 500/- each and in default of payment of fine
to further undergo rigorous imprisonment for two months.
4 . The prosecution has examined nine witnesses to prove the charge against the
appellant and produced 47 documents, which are Ex. P1 to Ex. P/47, while the
accused have produced four documents, which are Ex. D1 to Ex. D/4. The witnesses
examined are PW 1 Gauri Lal, PW2 Babu Lal, PW 3 Bajrang Singh, PW 4 Kalyani, PW
5 Dr. Ghanshyam Prasad, PW6 Kanchan, PW 7 Sukhrajpal, PW 8 Ram Kishan Singh
and PW/9 Badan Singh. PW 1 Guari Lai was declared hostile. PW 4 Babu Lal is a
witness to prove seizure memo of the dead body of the deceased, Angad and
Mishriya. He also proves the Panchnama-lash Ex. P 4. He also proved site-memo Ex.
P5 and the seizure memos Ex. P6 and Ex. P7 of certain articles. PW 3 Bajrang Singh
is a witness to whom the parcha-bayan Ex P8 of Smt. Kalyani was given by
constable, on which he registered a case vide FIR Ex. P9 Smt. Kalyani is an eye-
witness to the occurrence. She is mother of Angad and sister of Mishriya. PW5
Ghanshyam Prasad Gupta is the Doctor who conducted post-mortem and prepared
post-mortem reports Ex. P 10 of deceased Mishriya and Ex. P11 of deceased Angad.
PW 6 Kanchan is the daughter of Smt. Kalyani. Sukhraj Pal is PW 7. He has deposed
that he recorded the statement of Smt. Kalyani and sent the same to Thana
Garhmora. He also prepared Panchnama-lash Ex. P4. He also prepared Ex. P6. PW 8
Ram Kishan Singh took seven sealed pockets from Thana Bamanwas to Jaipur for
chemical examination. PW 9 Badan Singh has stated to have received FIR Ex P 9 and
the case file from PW 7 Sukhrajpal. He investigated the case. He prepared site memo
Ex P5. On the information given-by the accused recoveries were made Ex P33 to Ex P
45. On the information given by the accused, Kamal, on 9-8-1976 the sword Article 2
was recovered which was stained with blood. Recovery memo Ex. P4 was prepared by
this witness. On the information given by the appellant, Kasali Ex. P4, a Kulhari
Article 1 was recovered. The recovery memo is Ex 42.

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 5. The statements of the accused were recorded. They denied the allegations levelled
against them. No witness was examined in defence. They produced Ex. D1 to Ex D4.
Ex. D1 is the statement of Kanchan; Ex. D2 is the post-mortem report of Bhambhu;
Ex. D3 is the FIR and Ex. D4 is the charge-sheet.
6 . The learned Sessions Judge after appreciating the entire evidence led by the
prosecution ignored the testimony of Gauri Lal PW 1 and Kanchan PW 6 as they were
declared hostile and based conviction on the testimony of a single witness, Smt.
Kalyani PW 4. The learned Sessions Judge convicted both the accused-appellants
under Section 302, IPC and sentenced them to imprisonment for life and a fine of Rs.
500/-. Both the accused have preferred these appeals before this Court challenging
their conviction Mr. A.K. Sharma learned Counsel for Kamal and Shri H.C. Rastogi
and Shri J.P. Goyal learned Counsel for Kasali submitted almost common arguments.
Their submissions are as follows:
(a) That the testimony of Smt. Kalyani PW 4 on the basis of which the
appellants have been convicted should not be believed as she is most
interested witness and on material points she has been disbelieved and, thus,
her testimony should be held to be unbelievable. It was also submitted that
the statement of Smt. Kalyani is full of contradictions in material particulars.
(b) That the medical evidence does not support the prosecution story as
disclosed by Smt. Kalyani. The trial Court has also disbelieved the version of
Smt. Kalyani PW 4 that the two deceased persons were given numerous
blows by lathis which is not corroborated by the medical report. The
appellants have been charged under Section 302/149, IPC along with all the
accused persons, except Kamal, who has been charged under Section 302
IPC. All the 14 of her accused persons have been acquitted of the offence
under Section 302/149, IPC and the case of Kasali is not distinguishable with
those of the accused persons who have been acquitted.
(c) That, it is alleged by the prosecution that accused Kamal who was coming
from the side of the village with a sword in his hand gave blows with sword
on the deceased persons and Kasali, another appellant is alleged to have
given blows with Kulhari. The medical evidence shows that except injuries
No. 2, 4 and 8, the rest were caused by blunt weapon on the body of
Mishriya and with blunt object on the body of Angad.
7 . Dr. Ghanshyam Prasad Gupta (PW 6) in his statement has reposed about the
injuries on the dead body of Mishriya. As per his statement injuries 2, 4 and 8 could
have been caused by sword Article 2, but the possibility is remote. After examining
the dead body of Angad, he has stated that injuries No. 1 to 6 could have been
caused by Kulhari Article 1. The submission of the learned Counsel is that Kamal had
sword in his hand and he caused injuries to the deceased Angad and Mishriya. But,
as per the statement of the Doctor the injuries that were found on the bodies of
deceased Mishriya and Angad could not be attributed to have been caused by sword.
It has also been submitted by the learned Counsel for the accused appellants that
injury No. 6 was sufficient in the ordinary course of nature to cause death but such
an injury could neither be caused by sword or by Kulhari as injury No. 6 described by
Dr. Gupta (PW 5) is depressed contusion. The learned counsel, thus, submits that
such injury cannot be attributed to either Kamal or Kasali.
8 . As regards the injuries on the body of Angad, it was pointed out that from the

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 statement of Doctor that all the injuries, except injury No. 7, were caused by shard
weapon. It was also pointed out that all the injuries cumulatively were sufficient in
the ordinary course of nature of cause death. The learned Counsel submits that injury
No. 7 too could not have been caused either by sword or kulhari. Thus, the main
argument of the learned Counsel for the appellants is that the cause of death of the
deceased Mishriya was injury No. 6 and that of Angad was injury No. 7; but both
these injuries could not have been caused either by sword or kulhari and; thus, the
accused appellants are not the author of the said injuries and, as such, they cannot
be held responsible for causing death of the deceased. To appreciate the contention
of the learned Counsel for the appellants, it would b; proper to reproduce the injuries
of Angad as given in post-mortem report Ex. P 11 and also of Mishriya Ex. P10. The
injuries found on the body of Mishriya are as under:
(1) Lacerated wound 4" × 2-1/2" × bone deep with fractures of both
bones of right leg 3" above the ankle wounds transverse in direction front
and outer aspect with blood and adherent blood clots in deep tissue;
(2) Incised wound 3" × 1-1/2" × 1-1/4 on lateral aspect of right thigh
transverse 5" above right knee;
(3) Lacerated wound 1" × 1/2" × bone deep on right leg medially 4"
below knee transverse in direction;
(4) Incised wound 2-1/2" × 1" × bone deep oblique in direction in left
parietal region of scalp 3" above left ear downward and outward;
(5) Depressed contusion 4" × 3" on right chest, below right ear with
fracture of ramus of mandible right side with blood and adherent blood clots
in deeper tissue colour red;
(6) Depressed contusion 2" × 1-3/4" on left occipital region 2" behind left
ear with fracture of underlying occipital bone 1-1/2" × 1/2", the fractured
piece entering into the brain matter;
(7) Swelling of back of the neck 4-1/2" × 3-1/4";
(5) Incised wound spindle shaped 3-1/4" × l-l/2" × bone deep on back of
left upper arm 2" above elbow transverse, oblique downward and inward
with fracture of underlying humerus bone with adherent blood clots in deeper
tissue;
(9) In the opinion of the Doctor, the cause of death was shock resulting from
multiple injuries, multiple fractures and injury to the brain;
10. The injuries found on the dead body of the deceased Arigad are as follows:
(1) Incised wound two in number;
(2) 1/3-4" × 1/2" × bone deep, 1/1-2" × 1/2" × bone deep on
occipital region of scalp transverse to mid-place in line with each other at a
distance of 1-1/4" to each other 3" above posterior head line. Sub-staneous
haemorrhage corresponding to injury No. 7. Depressed fracture of right
temporal bone 2" × 1" with sub-dural, sub-archnoid and intracerebral
haemorrhage with laceration of brain;

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 (3) Incised wound 3/4" × 1/2" × 1/2" on left region middle part 1" away
from mid place oblique in dimension down and outward;
(4) Punctured wound 1/4" × 1/4" × 1/2" on right upper arm posteriorly
middle thigh;
(5) Incised wound 4-3/4" × 1-1/2" muscle deep oblique vertical on back of
right fore arm upper 1/2;
(6) Incised wound 3" × 1-1/4" × 1/2" on dorsum of right foot transverse
oblique on upper and outer asped;
(7) Contusion (faint-red) 3-1/4" × 2" on right temporal region 1-1/2" away
and anterior to right ear (tragus) parallel to mid-place of scalp.
1 1 . In the opinion of the Doctor, the cause of death was multiple injuries and
fracture of right temporal bone and injury to the brain leading to shock and sudden
death.
12. Thus, from the post-mortem report of the deceased Mishriya, it is evident that
the cause of death was shock resulting from multiple fractures and injury to brain.
1 3 . It is true that Kalyani's statement has not been fully believed by the learned
Sessions Judge. It is also true that she has exaggerated the story and tried to put
Kanchan as eye-witness. But despite these infirmities in the statement, her statement
cannot be entirely ignored It cannot be said that she was not an eye-witness from the
Parcha bayan Ex. P9 and her statement given in the Court. It is clear that she has
witnessed the entire occurrence. Her statement regarding causing injuries by Kamal
and Kasali to Angad and Mishriya cannot be disbelieved. Her statement is
corroborated by the postmortem reports Ex. P10 and Ex. P11. We fully agree with the
finding given by !he learned Sessions Judge that accused Kasali caused injuries by
Kulhari and accused Kamal inflicted sword blows to Angad and Mishriya. The
statement of Smt. Kalyani also gets support from the information given by the
accused-appellant, on the basis of which Articles 1 and 2 were recovered. Thus, there
remains the only question as to whether the accused-appellants are responsible for
causing a particular injury which is attributable to the cause of death of deceased
Angad and Mishriya. Let us examine the injuries which are responsible for causing
death of Mishriya and Angad? Dr. Gupta (PW 5) in his statement has deposed, after
basing his opinion on the postmortem report that injuries No. 2, 4 and 8 on the
person of Mishriya were caused by sharp weapon and injuries No. 1, 3, 5, 6 and 7
were caused by blunt weapon. He has also deposed that injury No. 6 which is said to
have been caused by blunt weapon, was sufficient in the ordinary course of nature to
cause death. He has also deposed that injuries No. 2, 4 and 8 could be caused by
sharp weapon, but there is least possibility of such injuries being caused by sword.
1 4 . As regards the injuries found on the dead body of Angad, the Doctor has
deposed that injury No. 7 alone and the other injuries taken together were sufficient
in the ordinary course of nature to cause death. Injuries Nos. 1 to 6 could be caused
by Kulhari and also by sword. Dr. Gupta has further deposed that he is not definite if
injury No. 7 is excluded. Angad could have died on account of the injuries or not? He
has also deposed that even after receiving injury No. 7 Angad could have walked.
Thus, Dr. Gupta is not every definite, about injury No. 7, as to whether it was
sufficient in the ordinary course of nature to cause death or not. Thus, from the
appreciation of the medical evidence and the statement of Smt. Kalyani, it is evident

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 that some injuries were caused by Kasali and Kamal on Mishriya and Angad. From the
evidence on record, it cannot be said that the specific injury which was responsible
for causing the death of the deceased persons was caused by these two appellants.
From the appreciation of the evidence, it is difficult to say that the accused-
appellants intended to cause that very injury which was found to be fatal.
15. In Shri Narain and Anr. v. State of Rajasthan MANU/RH/0105/1979 a Division
Bench of this Court converted the conviction under Section 302, IPC to Section 325
IPC on the ground that individual injuries inflicted on the deceased were not
sufficient in the ordinary course of nature to cause death. The weapon used in that
case was a blunt weapon and, as such, the conviction of the accused from Section
302, IPC was converted to Section 325 IPC. In Mahinder Singh v. State of Delhi
MANU/SC/0165/1975 : 1975CriL J1320 , their Lordship of the Supreme Court held
that the injuries caused by the accused 'M' were not such as to cause the death of the
deceased and that the accused 'M' could only be held guilty under Section 325, IPC.
16. In view of the findings arrived at above, regarding the injuries caused by the
appellant and having regard to the circumstances of the case, it cannot be said that
the appellants have committed an offence under Section 302, IPC. It can certainly be
said that the accused-appellants have committed an offence under Section 326, IPC.
Accordingly, the conviction of the accused-appellants under Section 302, IPC cannot
be upheld and the same is set aside. The appellants are convicted under Section 326,
IPC. A sentence of five years rigorous imprisonment would be an adequate sentence.
17. Accordingly, the appeals are partly allowed. The conviction of Kasali and Kamal
under section 302. IPC and sentence of imprisonment for life and a fine of Rs 500/-
and the sentence in default of payment of fine are set aside and instead they are
convicted under section 326 IPC and sentenced to suffer rigorous imprisonment for
five years and to pay a fine of Rs. 500/- and in default of payment of fine to further
suffer simple imprisonment for six months. The appellants are on bail. They would
surrender to their bail bounds to serve out the sentence awarded to them. However,
they would be entitled to the benefits of Section 428, Cr.PC.

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