JUDGMENT Y.R. Tripathi, J.
1. This appeal has been directed against the judgment and order dated 10th February, 1981 passed by Sri N. S. Shamshery, the then Vth Additional Sessions Judge, Varanasi convicting thereby Shiv Murat Upadhaya, Ram Dhani Upadhaya and Dashmi under Section 304, Part I of I.P.C. read with Section 34, I.P.C. sentencing each of them to undergo imprisonment for life.
2. The facts leading to this appeal are that the deceased Hardeo was resident of village Vishunpura Khurd which lies within police circle Dhanapur of District Varanasi. He and some ladies of his family including his wife Barethi, daughter Dharmawati, Smt. Lakhaniya and Smt. Ramraji respectively, wives of his two real brothers Charan Deo and Indra Deo, and Smt. Parvati daughter-in-law of Indra Deo, used to do plantation of paddy seedling known as Ropani during the period, the incident took place. It is said that on the evening of 22-8-1978, a day prior to the incident when Hardeo along with aforesaid women of his family was returning home from village Kamharia, appellant Sheo Murat of village Tambagarh met him on the way and asked him to do Ropani in his field on the next day. Hardeo told him that he had already accepted advance wages from one Vikarma Singh of Village Kamharia for doing his Ropani and that he would do his Ropani after the Ropani of said Vikrama Singh. It is alleged that on 23-8-1978 around 7.00 a.m. when Hardeo along with 4-5 aforesaid inmates of his family was going to village Kamharia to do Ropani of Vikrama Singh, the appellants out of whom Sheo Murat Upadhyaya and Ram Murat Upadhaya are inter se real brothers and Dashami was then their ploughman, intercepted him near the peepal tree situated by the side of the field of one Gajadhar Tell of village Pipardaha and insisted them for doing their Ropani, but Hardeo refused to oblige them whereupon all the three appellants fell upon Hardeo and started belabouring him by means of lathis with which they were then armed saying that they would not leave him fit to do the Ropani. On the alarm of Hardeo, Ram Charan P.W.-2 and Ram Naresh P.W.-3 who were going to village Pipardaha to do the Ropani of one Sunder Singh of that village and were a few paces behind him, rushed to his rescue. The women accompanying Hardeo also started weeping and crying whereupon the appellants took to their heels. Hardeo after sustaining injuries had fallen down on the ground. After the incident, Dharmawati, the daughter of Hardeo, went to her village Vishunpura and informed her uncle Dharamdeo and others of the incident whereupon Dharamdeo and others came to the scene of the incident. On enquiry made by P.W.-l Dharamdeo, Hardeo narrated to him the entire incident. Dharamdeo thereupon with the help of other persons took his injured brother on a cot to his village and from thereafter scribing a report Ext. Ka-1 on the dictation of Hardeo went to P.S. Dhanapur which lies at a distance of about 12 kms. to the West of his village and made over the written report there to constable Kawal Deep Singh (not produced) who on the basis of that report drew the F.I.R. Ex. Ka-3 and registered a case vide G. D. Ext.-3 at 2.30 p.m. on that very day. The police of P. S. Dhanapur referred Hardeo to P.H.C. Dhanapur where Dr. L. S. Yadav P.W. 5, then posted as Medical Officer conducted his medical examination at 4.15 p.m. on the same day. Dr. Yadav found the following injuries on the person of Hardeo :--
1. Contusion with swelling 16 cm x 13 cm on Lt. side of back 20 cm below from Lt shoulder joint.
2. Contusion 18 cm x 3 cm on the back oblique both side from mid line 27 cm below from 7 cervical vertebra.
3. Contusion with swelling -- 8 cm x 2 1/2 cm on the lateral side elbow joint of Lt. hand.
4. Fracture of Lt. fore arm about 5 cm above from wrist joint (Lt.) (under observation)
5. Contusion with swelling -- 10 cm x 2 cm on the lateral side of thigh (Lt) 21 cm above from knee joint (Lt)
6. Contusion 6 cm x 3 cm on the lateral side of the leg 10 cm below from knew joint (Lt)
7. Laceration -- 1 1/2 x 1/4 cm x skin deep, 1 cm forward from Ear (Rt).
8. Contusion with swelling -- 8 cm x 2 cm. on Rt arm (lateral side) just above the Elbow joint (Rt.)
9. Contusion with swelling 9 cm. x 3 1/2 cm dorsal surface of the fore arm (Rt.) just below the Elbow joint (Rt.)
10. Contusion with swelling 6 cm x 3 cm on the palm of the Rt hand.
11. Contusion with swelling -- 8 cm x 2 cm on the antero-medial side of thigh -- 8 cm above from knee joint (Rt.)
12. Contusion with swelling -- 15 cm x 3 cm on the lateral side of the thigh (Rt.) middle part.
13. Compound fracture of Rt. leg 4 cm above from Rt ankle joint, outside opening 3 cm x 1 1/2 cm x not correct measurable deep on the medial side of the leg 4 cm above from ankle joint (Rt.) under observation.
3. According to Dr. Yadav, all the injuries of Hardeo had been caused by blunt object and his injury Nos. 4 to 13 were of grievous nature. Dr. Yadav referred Hardeo to S.S.P.C., Varanasi for his treatment and X-ray but as it appears for non-availability of conveyance Hardeo could not be rushed to Varanasi and around 6.00 P.M. on that very day succumbed to his injuries out side the PHC, Dhanapur while waiting for a Roadways bus. The information of his death was passed on at the police station Dhanapur where the case already registered was altered. S.I. Rama Shankar Mishra, P.W.-6 on 24-8-1978 took the inquest of the dead body and prepared, photo nash, Challan nash and other papers' and after sealing the dead body handed it over to constables Zafar All P.W.-7 and Virendra Singh (not produced) for its being taken to the mortuary. The aforesaid constables in their turn took the dead body to mortuary at Varanasi where on their identification of the dead body, Dr. B. V. Subrahmanyam then ' posted in Forensic Department of Medical Science in B.H.U., conducted the postmortem examination at 2.30 p.m. on 25-7-1978. According to Dr. B. V. Subrahmanyam the deceased was about 35 years of age and had died 30-36 hours before. He found that rigor mortis had passed off and post-mortem blisters peeled off at places, present. He noticed the following ante mortem injuries
1. Lacerated wound 1.5 cm. x 2.00 cm in front of right ear.
2. Abrasion 8 cm. x 2 cm. Over right face margin prominence.
3. Contusion 8 cm. x 1 cm. outer aspect of right arm above the elbow.
4. Contusion 9 cm. x 3.5 cm. on back of right fore-arm upper 1/3.
5. Contusion 6 cm. x 3 cm. right palm and dorsum of hand.
6. Abraded contusion 6.00 cm. x 1.5 cm. Over outer aspect of right thigh 6.00 cm. below right iliac crest.
7. Lacerated wound 3 cm. x 1.5 cm. x 2 cm. Inner aspect of lower 1/3 of right leg 5 cm. above the right ankle with compound commuted fracture of both bones of right leg underneath.
8. Contusion 35 cm. x 18 cm. over inner, outer and front aspect of left leg.
9. Contusion 10 cm. x 2 cm. outer aspect of left thigh at mid 1/3.
10. Contusion 8 cm. x 2.5 cm. on the outer aspect of left fore arm at its lower 1/3 with simple commuted fracture of both bones of left fore-arm underneath.
11. 0.1 cm diameter puncture wound with contusion 12.0 cm. x 10 cm. on the outer and back aspect of right fore arm upper 1/3 2.5 below elbow with underlying fracture of radius.
12. Contusion 18 cm. x 12 cm. outer and back aspect of left arm upper 1/3.
13. Contusion below the two shoulder blades in the middle of the back 25 cm. x 20 cm.
4. According to Dr. B.V. Subrahmanyam, the deceased had died due to haemorrhage and shock on account of multiple injuries.
5. It appears that after registration of the case at P.S. Dhanapur, the relevant papers were sent through constable Shiv Pujan Yadav to P.S. Sakaldeeha which had territorial jurisdiction over the place of the incident where on receipt of relevant papers Head Moharrir Bhagwan Singh, registered a case. S.I. Sri. Abdul Zabbar P.W. 8 then posted at P.S. Sakaldeeha took up the investigation and after completing the formalities presented a charge-sheet Ext. Ka.-11 which culminated into trial of the appellants.
6. The appellants pleaded their innocence and attributed their false implication to enmity with one Deonandan of the village of appellants.
7. The prosecution examined as many as nine witnesses. They include Dharamdeo P.W.-l, the informant, Ram Charan P.W.-2, Ram Naresh P.W.-3, Barethi P.W.-4, all witnesses of fact, Dr. L. S. Yadav P.W.-5, who while posted as Medical Officer at P.H.C. Dhanapur had medically examined Hardeo, the injured, S.I. Rama Shankar Mishra P.W. 6, who had taken the inquest and prepared other documents, Mohd. Zafar All P.W.-7, who along with constable Virendra Singh (not produced) had taken the dead body to mortuary for autopsy which was conducted by Dr. B.V. Subrahmanyam P.W. 9 and S. I. Abdul Zabbar P.W. 8, the investigating officer. The defence in support of its case examined Vikrama Singh as D.W.-1, Ram Deo as D.W.-2 and Sunder Singh as D.W.-3.
8. The learned trial Court after going through the evidence on record and after hearing the prosecution and the defence held the appellants guilty of the offence under Section 304, Part 1 of I.P.C. read with Section 34, I.P.C. and convicting them of the same sentenced each of them to undergo life imprisonment.
9. Being aggrieved from their aforesaid conviction and sentence the appellants have come up in this appeal.
10. Learned counsel for the appellants has assailed the conclusions of the trial Court mainly on the ground that the evidence led by the prosecution consists of interested and partisan witnesses and falls short of proving the involvement of the appellants beyond doubt. According to him out of four factual witnesses, Dharam Deo P.W.-
1 and Smt. Barethi P.W.-4 are closely related to the deceased and Ram Charan P.W.
2 and Ram Naresh P.W. 3 belong to Bind community to which the deceased belonged. He has also pointed out some inconsistencies here and there in the evidence of these factual witnesses, and has tried to show that their evidence does not inspire any confidence and the learned trial Court has committed an error in relying upon it and founding the conviction of the appellants thereon.
11. We have carefully scrutinised the evidence of Dharam Deo P.W.-l, Ram Charan P.W.-2, Ram Naresh P.W.-3 and Smt. Barethi P.W.-4. Dharam Deo P.W.-l is the real brother of the deceased and is not an eyewitness of the occurrence. He has stated to have arrived at the scene of the incident after some time on hearing about the incident from Dharmawati, the daughter of the deceased, who after the incident had gone to Village Vishunpura and had informed him of the incident. The evidence of Dharam Deo P.W.-l is to the effect that on his arrival to the spot, Hardeo, on his enquiry about the manner of the incident, had narrated the entire incident including the conversation which had taken place between him and one of the appellants Sheo Murat on the evening of the day preceding to the date of occurrence. Not only this Dharam Deo has also stated that he along with some other persons has taken his injured brother to his village where he had prepared a written report of the occurrence giving full details of the incident, on the dictation of Hardeo. It is this written report proved by Dharam Deo that forms the basis of the chick F.I.R. Ex. Ka-3 taken down at the Police Station at case Crime No. 171 of 1973. Dharani Deo thus, though not a witness of the fact has deposed about the facts which were told to him by Hardeo, the victim, immediately after the incident and his evidence is relevant under Section 6 of the Evidence Act as part of the same transaction. The evidence of Dharamdeo has been sought to be impeached on the ground that he does not appear to have scribed the written report on the dictation of Hardeo as he himself admits that Hardeo was an illiterate and the written report has been prepared in chaste Hindi. It is a matter of common parlance that the scribe converts the contents into his own language and we find no reason to hold that because of the fact that the written report is not scribed in local dialect, which Hardeo used to speak it was not prepared on his dictation. The written report, thus, prepared on the dictation of Hardeo containing the cause of his death is also admissible under Section 32(i) of the Evidence Act.
12. Then we are left with the evidence of Ram Charan P.W.-2, Ram Naresh P.W.-3 and Smt. Barethi P.W.-4, the wife of Hardeo. They all have consistently deposed about the incident and have corroborated each other on material particulars of the incident. Smt. Barethi was also present on the previous day when the appellants Sheo Murat had asked Hardeo to do Ropani in his field and Hardeo had declined to oblige him saying that he had already accepted advance wages from one Vikrama Singh of village Kamhariya and would do his Ropani only after the advance wages received by him from Vikrama Singh was adjusted. The two other witnesses Ram Charan and Ram Naresh too have given ocular account of the incident. They have stated that at the time of the incident, they were a few paces behind the victim and on seeing the appellant assaulting Hardeo had rushed to the place of the incident and intervened whereupon the appellanta had run away.
13. Taking us through the statements of Ram Charan and Ram Naresh learned counsel for the appellants has tried to show some discrepancies about the places from where they have stated to have seen the occurrence, keeping however, in view the fact that these witnesses are illiterate, the discrepancies pointed out in their statements do not appear fatal so as to dislodge them of their credibility and outweigh its evidentiary value. Contrary to it the presence of these witnesses on the spot, appears most natural, as they were going to Pipardaha to do Ropani of one Sunder Singh of that village. It would be found that there does not appear any habitation in close vicinity of the place of the occurrence and therefore, the presence of any other person at the time of occurrence which took place in the early hours cannot be said to be unnatural. The victim it would be found had been medically examined by Dr. L.S. Yadav P.W. 5 at 4.15 p.m. on 23-8-1978 who had found as many as 13 injuries on his person and had opined that those injuries could have been caused by blunt object about half a day before. The duration of the injuries of the victim as stated by Dr. L. S. Yadav, admits variation of a few hours on either side. His evidence therefore also goes to probabilises the time of the occurrence as alleged by the prosecution. Dr. L. S. Yadav has also stated that all the injuries of Hardeo could have been caused by blunt object. The medical evidence thus full supports the ocular account given by the prosecution witnesses.
14. Learned counsel for the appellants has also raised some small contentions but they hardly matter any consideration. It has been argued by him that though the victim is said to have fallen down in a nali which existed on the spot but no mud was found on his person or clothes by the doctor, eon-ducting his medical examination. A specific question was also put to Dr. L. S. Yadav P.W. 5 to this effect and Dr. Yadav has stated that no mention about there being mud on any of the injuries of the victim has been made in the injury memo. He has also stated that no such observation is made in the injury memo. Even assuming that some of the witnesses had seen mud on the person or clothes of the victim at the time of occurrence, it must have dried up by the time of his medical examination. Therefore, the absence of mud either on the person or clothes of the victim at the time of his medical examination does not go to the root of the prosecution case to belie the place of the incident.
15. The learned counsel for the appellant then referring to the evidence of Ram Deo D.W.-2 urged that the victim had been administered some injection and it appears that he died of its reaction. Dr. L. S. Yadav has denied having administered A.T.S. injection to the victim and Dr. Subrahmanyam, who conducted the autopsy on the dead body has also ruled out the death of the deceased having been caused by reaction of any medicine. This argument therefore also does not carry any weight.
16. Then taking us through the evidence led by the defence, it has also been argued that Sri Vikrama Sihgh D.W.-l has denied having ever engaged the deceased for doing his Ropani. In similar fashion another witness Sunder Singh of village Pipardaha too has denied having ever hired the services of Ram Charan and Ram Naresh witnesses for doing his Ropani. It is not improbable that these witnesses for one or the other consideration might have given their statements to save the appellants from the clutches of law. Their evidence to our mind does not outweigh the direct and positive evidence of factual witnesses Ram Charan, Ram Naresh and Barethi who have given an account of the incident which they had themselves seen.
17. Then our attention was also attracted to the statement of Ramdeo D.W.-2 wherein he states that Hardeo had been beaten up in his own village in the mid night, and that he had also gone to his house in the night itself to see him and had taken him to P.H.C. and Police Station on the following day. Despite the fact that the F.I.R. was lodged in his presence he has pleaded his ignorance about the accused named in the F.I.R. It is not digestible that the informant screening out the real assailants would have implicated the appellants falsely more so when there did not exist any apparent motive for his so doing. The accused have stated that they have been implicated on account of their enmity with one Deonandan of their village but no proximity has been shown between the said Deonandan and the prosecution witnesses which might have supplied any motive for false implication of the appellants. The appellants contrary to it are found to have community of interest in so far as Sheo Murat and Ramdhani are inter se real brothers and the other appellant Dashmi was at the relevant time their ploughman. Neither Hardeo nor prosecution witnesses are found to have had any animosity with any of the appellants to implicate them falsely in this case.
18. Thus on consideration of the entire evidence on record, we find that the prosecution by cogent and convincing evidence has succeeded to prove the factum, date and time of the occurrence as also the complicity of the appellants in the incident. The conclusions of the learned Court below on these points, thus, do not warrant any interference. So far as the offence proved to have been committed by the appellants is concerned we find that appellants did not intend to kill Hardeo. They simply wanted to chastise and incapacitate him from doing Ropani so as to give him a lesson. None of the injuries found on the victim was aimed at any vital part of the body. No doubt cumulatively the injuries caused to the victim were sufficient to cause his death, nevertheless, there appears to be absence of intention on the part of the appellants to cause the death of the victim.
19. This being the position, we are of the view that the appellants could only have been held guilty of the offence falling under second part of the Section 304 of the I.P.C. read with Section 34, I.P.C.
20. We, therefore, allow this appeal partly and modifying the conviction and sentences of the appellants, convict them of the offence under second part of Section 304, IPC read with Section 34, IPC and sentence each of them to undergo seven years rigorous imprisonment.
21. The C.J.M. Varanasi shall cause the appellants arrested and sent to jail to serve out the sentences passed against them by this Court. He shall also submit compliance report at the earliest.