JUDGMENT S.C. Jain, J.
1. The appellants, Jai Narain and 12 others, have filed this appeal challenging the judgment and order dated 7-3-1980 passed by V Addl. Sessions Judge, Aligarh in Sessions Trial No. 159 of 1978, whereby appellants, Jai Narain, Ram Prakash, Rishi Kumar, Munna, Bhagirath, Bankhandi, Gomti and Viro alias Virendra were convicted under Section 302, read with Section 149, I.P.C., 148, 324 read with Section 149 and Section 323 read with Section 149 I.P.C. and were sentenced to undergo life imprisonment, one year rigorous imprisonment, one year rigorous imprisonment and six months rigorous imprisonment under the said counts respectively, while appellants, Murari Lal, Ram Kumar, Sri Narain, Radha Raman and Ram Moorti were convicted and sentenced for life imprisonment under Section 302 read with Section 149, I.P.C., rigorous imprisonment for nine months under Section 147, I.P.C. rigorous imprisonment for one year under Section 324 read with Section 149, I.P.C. and rigorous imprisonment for six months under Section ; 323, read with Section 149, I.P.C. However, all the sentences were ordered to run concurrently.
2. As per the prosecution case proceedings under Section 107/116, Cr. PC were pending between the appellants and complainant's party of Mool Chand, injured, in the Court of Sub Divisional Magistrate, Hathras, district Aligarh regarding construction of Chabutara by the appellants on the passage leading to the house of the complainant's party. 7th October, 1977 was the date fixed in those proceedings. The complaintant, Mool Chand, and some members of his party assembled at his house in village Chamarua, hamlet of Korna, police station Mursan district. Aligarh for going to Court at Hathras to attend those proceedings At about 7.30 a.m. the appellants armed with guns, spears, pharasas and lathis assembled in front of the house of Mool Chand on the passage and threatened the complainant, Mool Chand, and the members of his party not to go to the Court for taking part in the proceedings. In order to deter them they abused Mool Chand. and his family members. Mool Chand and other members of his family were inside the house. In the meantime, Sri Gopal, brother of Mool Chand, came from out side and when he saw the accused persons in such a condition of absuing Mool Chand and other family members he objected to their behaviour. Thereupon, Munna, Ram Moorti and others began to assault Sri Gopal with spears and lathis and when Sri Gopal raised alarm and fell down on the ground Mool Chand, Ram Babu, brother of Mool Chand, Girish, cousin of Mool Chand, Lokman, father of Mool Chand and other members of his family came out of the house and tried to save Sri Gopal. They were unarmed and were not prepared to face the appellants who were armed with deadly weapons. The appellants gave beatings to all these persons by spears, and pharas and the appellants who were armed with guns also asked their companions to give assault to Mool Chand and his party men. As a result of the acts of these appellants Mool Chand, Girish, Ram Dulari, Sri Gopal, Lokman and Ram Babu received injuries. The injuries of Mool Chand, Girishchand, Ram Dulari, Sri Gopal and Lokman were found simple in nature whereas Ram Babu received four injuries and injuries Nos. 1 and 3 which were on his head wore kept under observation and after about seven days he succumbed on account of his head injuries.
3. The incident in question was of 7-10-1977 and he died on 14-10-1977. The postmortem examination was conducted on the same day and according to the opinion of the doctor death took place due to brain injuries.
4. The main thrust of the arguments of the learned counsel for the appellants is that if the evidence on record is to be taken as correct, even then it is not a case of murder under Section 302, I.P.C. read with Section 149, I.P.C. According to him even the learned trial Court while discussing the pros and cons of the case came to the conclusion that the accused persons had no intention or common object to commit the murder of Ram Babu. The common object at the most was to show force or at the most to assault them, so that they might not go to attend the Court proceedings at Hathras on that day. The conviction of the appellants, according to the learned counsel for the appellants, under Section 302 read with Section 149, I.P.C. is bad in law. At the most it is a case under Section 304, Part II, I.P.C.
5. The next submission made by the learned counsel for the appellants is that almost all the major members of the family of the appellants have been implicated in this case. Some of the members were shown to have been armed with guns, some of them have been alleged to be armed with spears and pharasa and others were armed with lathis. According to the learned counsel neither there is any gun shot injury nor any such injury which could be deliberately caused with Pharsa and spear. The injuries were found simple in nature and at the most those injuries could have been inflicted with lathis. According to him, those members who have been assigned the role of having guns, spears and pharsas have been named on account of enmity, though they were not present at the time of the said incident.
6. The next submission of the learned counsel for the appellants is that as far as the presence of Murari Lal and Viro alias Virendra is concerned, the case of prosecution is belied by the statements of DW 1, Ghure Lal Pachori, Amin of Tahsl Hathras, and DW 2 Raj Bahadur Sharma, clerk of Higher Secondary School Lodhpur. According to the learned counsel Murari Lal was present on that date in Tehsil in connection with sale of a property in village Papri. Virendra, appellant, was present in Higher Secondary School, Lodhppur. According to D.W. 2, Raj Bahadur Sharma, the appellant, Virendra, used to take extra class and he proved the entries showing that he signed the attendance register at 7.27 a.m.. The learned counsel stated that the findings of the learned trial Court disbelieving the statements of these two witnesses in support of the plea of alibi taken by these appellants are illegal and agafnst the evidence.
7. The further submission of the learned counsel for the appellants is that the complainant's party did not receive injuries at the hands of appellants rather they received injuries in scuffle amongst the members of their own family on the question of execution of will. The learned counsel draw our attention to the statements of DW 3, Dori Lal and according to him on the night of the occurrence there was a Panchayat at the house of Lokman at village Chamarua and he attended that Panchayat which continued up to 3 or 4 a.m. but no decision could be taken therein and thereafter there was exchange of words between the two parties and probably there was a free fight amongst those persons and in that fight RamBabu and some other members of the family of Mool Chand received injuries. The appellants have been falsely implicated in this case due to enmity
8. The prosecution version has been proved by the eye witnesses, Mool Chand PW 1, Girish Chand PW 3, Om Prakash PW 5 and Sri Gopal, PW 6 Daryao Singh, PW 2, did not support the prosecution version in his examination-in-chief, though in cross examination he supported the prosecution version. The trial Court did not place any reliance on the statement of Daryao Singh, PW 2. Relying upon, the statements of these remaining eye witnesses, namely, Mool Chand P.W. 1, Girish Chand PW 3, Om Prakash PW 5 and Sri Gopal PW 6, and the statements of Doctor and the Investigating Officer the trial Court believed the prosecution version,. We have gone through the statements of these witnesses and found that there is nothing in their statements to doubt their testimony. The plea of the learned counsel for the appellants that all these witnesses are related to each other and proceedings under Sections 107/117, Cr. P.C. were going on and, therefore, their testimony should be discarded is not tenable in the present circumstances of the case. It is settled law that evidence of related witnesses should not be thrown away only on that account. They are as much reliable witnesses as other can be, but their evidence is to be scrutinised with care and caution. These witnesses have been subjected to lengthy cross-examination but nothing has come out of it to discredit them. They are corroborative on each and every material point and there is no reason to disbelieve them only because they are related to each other. The reason for not examining other witnesses of the mohalla has been given, which the trial Court has considered in a right way. The occurrence took place at about 7.30 A.M. and at that time most of the villagers were in their fields. The persons who were available and were injured are the best persons who could depose about this incident which has been done in this case. As per the record it is admitted fact that there was some dispute between the parties regarding construction of Chabutara and proceedings on that account were going on in the Court at Hathras. It being the reason, the occurrence as alleged by the prosecution could have taken place.
9. The trial Court has rightly rejected the defence version that the complainant's party received injuries on account of the scuffle going on the question of execution of a will. The statement of DW 3, Dori Lal, Pradhan, has been rightly rejected by the trial Court. The trial Court has-also rightly rejected the statement of defence witnesses, DW 1 Ghure Lal, and DW 2 Raj Bahadur, Clerk of Higher Secondary School, Lodhpur, while rejecting the plea of alibi taken by the accused, Murari Lal and Virendra. We find no ground to interfere in the findings of learned trial Court. From the evidence on record it is proved beyond doubt that all these appellants were present at the time of this incident.
10. The Only point which requires consideration in this case is whether conviction under Section 302 read with Section 149,I.P.C. is maintainable in view of the facts and circumstances of the present case. The learned trial Court in its judgment has come to a definite conclusion that these appellants had no common intention or common object to commit the murder of Babu Lal. We find from the evidence on record that these appellants had no intention to commit the murder of Ram Babu. On the date of occurrence they reached the house of Mool Chand with a common object of threatening the members of the party, of Mool Chand. In order to prove the case within clause (3) of Section 300, I.P.C. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death or that the injury found to be present was the injury that was intended to be inflicted. In this case though some of the accused were armed with fire arms and pharasas but no injury was caused with fire arm or with pharas. Most of the injuries were of lathis or spear. The intention was not to cause death but to show force or to assault the injured party.
11. Having regard to the totality of the circumstances, i.e. the findings of the learned trial Court that accused had no intention to commit the murder of Ram Babu and on the date of occurrence they reached the house of Mool Chand with common object of threatening the party men of Mool Chand, some of the accused were armed with fire arm but they did not use any fire arm at that time and death of injured, Ram Babu took place after seven days, it cannot be said that the accused intended to cause that particular injury which was sufficient to cause the death of Ram Babu. In these circumstances, the appellants have been shown to have committed an offence under Section 304, Part-II, I.P.C. On this account, the judgment as well as the order of the learned trial Court passed on 7-3-1980 in Sessions Trial No. 159 of 1978 deserves to be modified and the appeal deserves to be allowed in part.
12. We, therefore, partly allow the appeal and order that the appellants are guilty for the offence punishable under Sections 148, 304 II read with Section 149, 324 read with Section 149 and 323 read with Section 149, I.P.C. As far as the conviction under Section 304-II read with Section 149, I.P.C. is concerned the appellants are ordered to undergo rigorous imprisonment for five years and other sentences awarded under Section 147, 148, 324 read with Section 149 and 323 read with Section 149, I.P.C. shall remain the same. However, the sentences of the appellants shall run concurrently.
13. During pendency of appeal one of the appellants, namely, Shri Narain son of Chiranji lal died and the appeal filed by him stands abated. The remaining 12 appellants, i. e. Jai Narina, Ram Prakash, Rishi Kumar, Munna, Bhagirath, Bankhandi, Gomti Prasad, Viro alias Virendra, Murari Lal, Ram Kumar, Radha Raman and Ram Moorti, who are on bail, be taken into custody forthwith for undergoing the sentences awarded to them.