MEHROODA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal by the three accused-appellants Mehrooda, Juharu and Mst. Malli is directed against their conviction and sentence awarded by the learned Additional Sessions Judge No. 2, Alwar, in the following manner : I. Mehrooda (i) under section 302/34 I. P. C. Life Imprisonment and fine of Rs. 100/- or in default of payment of fine three month's rigorous imprisonment. (ii) under section 325/34 I. P. C. 3 year's rigorous imprisonment and a fine of Rs. 100/- or in default of payment of fine, further three months rigorous imprisonment. (iii) under section 447 I. P. C. Three months' rigorous imprisonment. (iv) under section 3/25 of the Indian Arms Act. Six months' rigorous imprisonment. II. Juharu (i) under section 302/34 I. P. C. Life imprisonment and a fine of Rs. 100/- or in default of payment of fine rigorous imprisonment for three months. (ii) under section 325/34 I. P. C. Three years' rigorous imprisonment and fine of Rs. 100/- or in default of payment of fine. (iii) under section 447 I. P. C. Three months' rigorous imprisonment. III Mst. Malli (i) under section 302/34 I. P. C. Life imprisonment and a fine of Rs. 100/- or in default of payment of fine rigorous imprisonment for three months. (ii) under section 325 I. P. C. Rigorous imprisonment for three years and a fine of Rs. 100/- or in default of payment of fine, further rigorous imprisonment of three months. (iii) under section 447 I. P. C. Rigorous imprisonment for three months. (iv) under section 323 I. P. C. Rigorous imprisonment for three months.

(2.) THE prosecution case in brief is that on October 15, 1978 at 3. 15 p. m. one Bagdal (PW. 3) lodged a First Information Report at Police Station Sadar, Alwar, that on the same day Jangi and Rehmat sons of Udaibhan had come on their field for sowing gram crop, At that time Mehrooda, Juharu, Nijar Khan, Mst. Malli, wife of Mehrooda, Ishan daughter of Mehrooda and Mst. Banno wife of Nijar Khan were ploughing their field. Mehrooda reprimanded Jangi and Rehmat as to why they had dismantled the boundary wall of their field. THEre was an altercation of words between them and thereafter Mehrooda, who was carrying a gun fired a shot at Jangi but it did not hit him. On hearing the noise the informant Bagdal and his son came running on the spot. THEreafter, Mst. Malli inflicted an axe blow on the head of Jangi and Nijar Khan gave a lathi blow on the head of Rehmat. Juharu also inflicted lathi blow on the hands of Rehmat. Mehrooda who was holding the wooden part of the gun inflicted injuries on the head of Jangi from the side of the barrel part of the gun. Bagdal also received certain injuries on his fingers. It is further, alleged that Juharu inflicted a lathi blow on the head of Bagdal while Nijar Khan, Mst. Ishan and Mst. Banno assaulted the informant's son Jormal with Lathis, Jangi and Rehmat became unconscious and fell down on the ground. On hearing the cries, Rehmat son of Chandmal and Chhotalli mevs came on the spot. On seeing these persons the assailants ran away. THEre after other persons also arrived on the spot. On the aforesaid report the police registered a case under section 307, 147, 148 and 149 I. P. C. Jangi subsequently succumbed to his injuries in the evening of the same day and as such the case was converted into section 302 I. P. C. THE post-mortem of the dead body of Jangi was conducted by Dr. Prahlad Swaroop Agrawal, Medical Jurist, General Hospital, Alwar on October 16,1978. In the opinion of the Doctor the death of Jangi was due to head injury and fracture skull compression of brain and haemorrhage. All the injuries were found to be ante-mortem in nature.

(3.) WE have given our careful consideration to the arguments advanced by the learned counsel for both the parties and have also gone through the record of the case. According to the evidence of PW. 11 Dr. P. S. Agrawal there are five external injuries found on the body of the deceased. It has been admitted by this witness that injuries Nos. 2 and 3 were of simple nature. It is only one injury i. e. injury No. 1 which was sufficient in the ordinary course of nature to cause death. It has also been admitted by this witness that injuries Nos. 2 to 5 were not sufficient in the ordinary course of nature to cause death of Jangi. On a thorough perusal of the prosecution evidence, the learned Additi-onl Sessions Judge arrived at the conclusion that it was not proved by the prosecution as to who inflicted the injury No. 1 which proved to be fatal. WE have also perused the prosecution evidence and we are of opinion that the prosecution has failed to prove as to which of the accused persons is responsible to cause the fatal blow i. e. injury No. 1 from the prosecution evidence it is proved that the accused Mehrooda did not fire the second gun shot after the first gun shot had escaped Jangi. Even, Mst. Malli who was carrying an axe with her did not use the weapon from its sharp side but inflicted the blow only from its blunt side. This goes to prove beyond any manner of doubt that the accused persons had no intention to kill Jangi and the incident took place at the spur of the moment. As the prosecution has failed to prove that which of the accused persons was responsible for inflicting the fatal injury, the accused persons can only be convicted under section 325/34 I. P. C. In this regard we find support from the decision of their Lordships of the Supreme Court in Ramlal v. Delhi Administration (1 ).