S.S. Sandhawalia, J. - (1.) THE question of law formulated for the decision of the Bench is in the following terms: Is an appellate Court whilst entertaining an appeal against conviction under Section 423(1)(b) of the Code of Criminal Procedure entitled to apply the provisions of Section 34, Indian Penal Code, where the trial Court has expressly held otherwise (though the accused person. was charged with a substantive offence read with Section 34, Indian Penal Code) and the State has not moved by way of appeal against such a finding. It would suffice to advert to the facts relevant to the above -said legal question only. Manphool Appellant and his son Birbal Appellant were charged under Section 302 read with Section 34, Indian Penal Code, before the Court of Session at Hissar. The learned Additional Sessions Judge acquitted both of them on the above -said charge but convicted them individually of the minor offence under Section 304, Part I, Indian Penal Code, and sentenced each of them to five years rigorous imprisonment and a fine of Rs. 500. The learned trial Court expressly found on facts that Section 34, Indian Penal Code, was not attracted in the case.
(2.) RAM Sarup deceased along with one Smt. Naraini had tenanted a piece of agricultural land from one Basti Ram of their village. Subsequently, however, they inducted Birbal Appellant as a partner in cultivation in order to have the use of his farm animals. It was agreed between the parties that Birbal Appellant would transport the agricultural produce of gram and fodder to the house of Ram Sarup deceased after the same had been harvested and it would be divided between them according to the agreed shares. On the 2nd of May, 1968, Ram Sarup deceased, Smt. Naraini and Birbal Appellant duly shared the gram crop between them and removed the same to their respective houses. The remaining fodder therefrom, however, continued to lie in the field and was to be divided subsequently. However, on the 3rd of May, 1968, Birbal Appellant removed the entire fodder lying in the fields to his house. On the learning of the same, Ram Sarup deceased along with his wife P.W. Sharbati at about evening time went to the house of Birbal Appellant and remonstrated with him for removing the entire fodder which, according to him, included the undivided shares of the deceased and Smt. Naraini. Manphool Appellant was also present in the house when the protest above -said was made and an altercation between the two Appellants on one side and the deceased and his wife on the other, ensued. Bhagwana and Sheo Karan P.Ws. who were passing in the street adjoining the court -yard were attracted by the commotion and in their presence Birbal Appellant obviously infuriated delivered a lathi blow on the head of Ram Sarup deceased on receipt of which he forthwith fell unconscious to the ground. Thereafter both the Appellants inflicted four or five more injuries on the deceased. P.Ws. Sheo Karan and Bhagwana interceded and rescued the deceased from further injury but he succumbed to those already inflicted after about one hour of the occurrence. The case against the Appellant was registered soon thereafter on the statement of P.W. Sharbati. The prosecution case as laid stands accepted almost in its entirety as is apparent from the detailed referring order recorded by me. The issue, however, which has necessitated the reference to the Division Bench is the nature of the offence committed by Manphool Appellant. On behalf of this Appellant it was contended that his conviction under Section 304, Part I cannot be sustained and reliance for this argument was first placed on the medical testimony, which would hence merit notice in some detail. Dr. Sangwan on the 4th of May, 1968, performed the autopsy on the body of Ram Sarup and had found the following injuries on his person: (1) Contused wound 1 1/2" Ã - 1 1/2" deep up to bone on right side of occipital bone region of scalp; (2) Contused wound 2" Ã - 1/2" deep up to bone on the left side occipital region of scalp parallel to injury No. 1. (3) Contusion 4" Ã - 2" on back of right wrist; (4) Contusion 4" Ã - 3" on front of right shoulder; (5) Contusion 4" Ã - 22" on left iliac region; (6) Contusion 5" Ã - 3" on outer side of left forearm; (7) Contusion 6" Ã - 2" on left side of back. This witness opined that the death of the deceased was the result of the multiple injuries as a result of shock and haemorrhage and all these injuries were stated to be sufficient to cause death in the ordinary course of nature. The witness also opined that injuries Nos. 1 and 2 on the head of the deceased were collectively sufficient in the ordinary course of nature to cause death.
(3.) ON the basis of the above -said medical evidence it was plausibly argued that out of the seven injuries on the person of the deceased only two on the head were of a dangerous character which could possibly have resulted in the death whilst the other five were merely contusions on the non -vital parts of the body. Coupled with this is the fact that the prosecution evidence was wholly unspecific regarding the injury inflicted by Manphool Appellant. Whilst the first dang blow on the head was categorically attributed to Birbal Appellant the prosecution evidence thereafter showed that both the Appellants inflicted the rest of the injuries on the body of the deceased without attributing any specific injury to Manphool Appellant. There is thus no conclusive evidence that the second injury on the head of the deceased was the result of any blow by this Appellant and the finding recorded by the trial Court is also to the same effect and is in these terms: According to the medical evidence injuries Nos. 1 and 2 were collectively sufficient in the ordinary course of nature to cause death. It is not clear on the record as to who out of the two accused caused the second injury on the head of the deceased. Relying heavily on the medical testimony and the above -said finding which was not assailed on behalf of the prosecution it was argued that in this context when Section 34, Indian Penal Code, has been specifically held to be inapplicable and as any specific head injury has not been attributed to the Appellant, he therefore, cannot be convicted of the substantive offence under Section 304, Part I, Indian Penal Code.;