Point of Law: offence attributed to the accused would not be one punishable under Section 302 IPC, but rather that under Section 304 Part II IPC. In wake of the discussion made hereinabove, we are of the view that the conviction of the accused appellants deserves to be toned down from the offence punishable Section 302 IPC read with Section 149 IPC to one under Section 304 Part II IPC read with Section 149 IPC.

JUDGMENT :

MEHTA, J.

1. These four appeals have been preferred by the appellants herein for assailing the judgment dated 19.12.2014 passed by the learned Additional Sessions Judge No.5, Kota in Sessions Case No.03/2011, whereby each of the appellants has been convicted and sentenced as under:-

2. For the offence punishable under Section 147 IPC : To undergo simple imprisonment of one year alongwith a fine of Rs.2000/- and in default of payment of fine, to undergo additional simple imprisonment of one month.

3. For the offence punishable under Section 302 read with Section 149 IPC : To undergo life imprisonment alongwith a fine of Rs.5000/- and in default of payment of fine, to undergo additional simple imprisonment of three months.

4. The sentences were ordered to run concurrently.

5. The appellants have suffered the custodial period as follows :-

6. The appeals being connected are being decided together by this common judgment.

7. Briefly stated, facts relevant and essential for disposal of the appeal are noted hereinbelow :-

8. Pramod Gautam (P.W.6) lodged a written report (Ex.P/15) to the SHO, Police Station Mahaveer Naagar, Kota on 23.01.2009 at 05.10 p.m. alleging inter alia that on the same day between 02.30 p.m. and 03.00 p.m., he was standing at Samrat Cross Roads. His brother Pradeep Gautam, Sunny, Sonu and Deepak Gautam were having Kachoris at nearby Namkeen shop. They got into a quarrel with Kuldeep and Brijesh over a trivial matter. Brijesh slapped Sunny. After this incident, all went back to their respective homes. At about 04.00 p.m.-04.30 p.m., his brother Pradeep Gautam, Sonu and Deepak had gone to Samrat Cross Roads for a stroll. Deepak came running towards the informant and told him that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys by baseball bats and sticks etc. The informant immediately rushed to the place of incident and saw that Pradeep was being assaulted by Kuldeep, Brijesh, Hariram and 10-12 other boys with baseball bats in front of the Saras Booth. The informant, Deepak, Sonu and Sunny intervened in on attempt to save Pradeep from the assailants who escaped on their motorcycles. Deepak also received injuries in this incident. Pradeep became unconscious because of the grave injuries suffered in the incident and thus, 108 ambulance was called and he was rushed to Apollo Modi Hospital, where the doctors declared Pradeep to be dead. On the basis of this report, an FIR No.36/2009 came to be registered at the Police Station Mahaveer Nagar, Kota for the offences punishable under Sections 143, 148, 149 and 302 IPC and investigation was commenced. The appellants were arrested and the usual recoveries were effected from them. The dead body of Pradeep was subjected to autopsy at the hands of Dr. Ashok Moondra (P.W.2) at the MBS Hospital, Kota, who noticed the following injuries on the body of the deceased :-

1. Lacerated wound 2 cm x 1 cm x bone deep on the right parietal region.

2. Bruise 15 cm x 2 cm transverse on the chest.

3. Bruise 10 cm x 2 cm little below the injury No.2.

4. Bruise 10 cm x 2 cm on the chest below the injury No.3.

5. Bruise 10 cm x 3 on the right side of abdomen.

8. In addition thereto, two superficial abrasions were noticed on the right leg and on the right cheek.

9. On dissection of the skull, sub-dural haemorrhage was seen underneath the injury No.1, but no internal damage was noticed on the skull or the brain. When chest was opened haemorrhage was noticed; 4th right rib was fractured and blood was collected underneath the injury. The right lung was ruptured and 500 ml. of blood and blood clots were collected