- (1.) THIS is an appeal by two accused, Deputy and Madho, who have been convicted by the Additional Sessions Judge, Dholpur, on the 12th May 1930 under sec. 304 (part 1)I. P. C. , and sentenced each to undergo seven years' rigorous imprisonment and a fine of Rs. 200/- or six months' further rigorous imprisonment in default of its payment.
(2.) THE facts of this case are that several accused were challaned by the police in the court of the Magistrate, First Class, Dholpur. It was alleged against them that on account of a previous enmity with Gotai Gushain resident of village Nadoli, they formed themselves into an unlawful assembly, reached his house on the 25th October 1949, dragged him out of it on the road and four of them, namely, the two appellants Deputy and Madho, Birsingh and Motia beat him with lathis, while the rest, who were 19 in number, remained standing nearby. THEreafter Gotai Gushain was wrapped up in a khol, taken to the chopal of Mahipal Thakur and left there. Two villagers Bhola and Mansa lodged a report of this occurrence at the police station Rajkhera the same day. Two constables Zaminulhasan and Sujan-singh took him to the police station at Rajkhera and from there he was removed to the hospital the same day. It is said that he was alive by the time he reached the hospital but he died there the next morning at about 2 A. M. THE dead body was then sent to the hospital at Dholpur where its post-mortem examination was held on the 27th October 1949. THE Magistrate, who conducted the preliminary enquiry, committed the accused Deputy and Madho and Motia under sections 147 and 302 read with section 34 I. P. C. and 11 other accused under sections 147 and 302 read with sec. 149 I. P. C. to stand their trial-in the court of the Additional Sessions Judge, Dholpur. THE fourth person Birsingh, who was also alleged to have taken part in beating Gotai Gushain, was reported to be absconding. THE Additional Sessions Judge acquitted all the accused, except the two appellants, who have come before us. The appellants' learned advocate has raised two objections in this court, first, that the prosecution evidence against the appellants was insufficient and unreliable and secondly that even if it be believed that they had taken part in the alleged occurrence it was not clearly established as to which injury was caused by them and, therefore, their conviction under sec. 304 (part I) cannot be maintained. It has been argued that at the most they can be convicted under sec. 323 I. P. C. So far as the first objection goes, P. W. 2 Bhunna, P. W. 4 Chokharia, P. W. 5 Badly, P. W. 7 Ramnarain and P. W. 11 Chunni Chamar have clearly stated that when they reached the scene of occurence, four persons including both the appellants were beating him with lathis while others were standing by. We have gone through their evidence carefully and we do not see any reason to differ with the finding of the learned Additional Sessions Judge so far as the appellants' participation in the assault is concerned. The first contention is therefore not tenable. As regards the second objection, it is true that the said witnesses have not been able to say as to which injury was caused by the appellants. They have given a bit exaggerated account of the number of lathis which are said to have fallen on the deceased. For instance, P. W. 11 Chunni Chamar has stated the he (the deceased) was given 10 or 12 lathi blows. The postmortem report and the statement of Dr. Dindayal, P. W. 16, however show that he had in all found only five injuries on the person of the deceased. Of them two were only abrasions, the first being 1" X3/4" on the right arm and the other of the same dimensions on the backside of the right shoulder. The remaining three injuries were contusions. The first one was 3" x 2" about the right temple, the second was of the same size on the right side of the head just behind the right ear and the third was 2-1/2"x 1" above the right iliac crest. On internal examination it was found that there was a fracture of the right temporal bone and the parietal bones and in the opinion of the witness, death of the deceased was due to direct injuries to the head causing fracture of the skull bones resulting in haemorrhage and compression of the brain. The witness is definite in his statement that it was only due to the two injuries received on the head by the deceased that his death was caused and that the remaining three injuries could be accused by a fall, and they could not cause his death in any case. From the evidence of the prosecution witnesses mentioned above, it cannot be said with any degree of certainty that any of the two appellants were responsible for the two head injuries mentioned above. According to them four persons were beating him, of them Birsingh is still absconding and Motia has been acquitted by the learned Additional Sessions Judge by giving him the benefit of doubt. The question to be decided therefore is as to what offence the appellants can be held guilty of under the circumstances. Now, so far as the offence under sec. 304 part I is concerned, the learned Additional Sessions Judge has given no reason in his judgment how in his opinion the appellants could be convicted under this section. The application of sec. 304 part I comes into play only if it is established that the actwould have amounted to under that section but for its falling within one of the exceptions to section 300 I. P. C. The conviction of the appellants under sec. 304 is therefore obviously wrong and cannot be maintained. The Assistant Government Advocate thinks that the proper section, under which their conviction should be altered is 325 while the appellants' advocate contends that at the most they can be convicted under sec. 323 I. P. C. In our opinion, the appellants' advocate is correct, because the prosecution has not been able to prove if any of the two grivious injuries received by the deceased were caused by any of the present appellants. As observed by their Lordships of the Allahabad High Court in A. I. R. 1947 All. 408 a person voluntarily causes grievous hurt who intends to cause grievous hurt or knows it likely that he would cause grievous hurt and actually causes grievous hurt. This case was followed in A. I. R. 1949 All. 191 and it was further observed that this principle was applicable only when sec. 34 I. P. C. does not apply, In the present case, the learned Sessions Judge has not believed the prosecution story that a number of persons had formed an unlawful assembly and went to the deceased's house with the common intention of beating him. The learned Additional Sessions Judge has not applied sec. 34 in the case of the appellants and when that section has not been found to be applicable and it is not established that any of them was responsible for any particular grievous injury they can be convicted only under sec. 323 I. P. C. The appeal is therefore partly allowed and the appellants' conviction is altered from one under sec. 304 part I to sec. 323 I. P. C. and each one of them is sentenced to one year's rigorous imprisonment and a fine of Rs. 100/ -. In default of payment of the fine each one of them would further undergo imprisonment for three months. . ;