- (1.) THESE are two jail appeals, one by Chhotia and the other by Sukha and Gobinda accused persons, who were convicted under sec. 302 read with sec. 34 I. P. C. by the Court of Sessions Judge, Jaipur District, on the 21st of December 1951. Chhotia was sentenced to death and the other two accused Sukha and Gobinda to transportation for life. The record of the case has also been received in this court for the confirmation of the death sentence. As all the three cases relate to the. same occurrence they are being disposed of by this judgment.
(2.) THE prosecution case is that there was some enmity between the deceased Isra and the three accused in connection with certain dispute about land. On the 2nd of June 1950 early in the morning before sunrise Chhitar asked his son Isra to go out and to bring some fire for his hukka. Chhitar accordingly went out. A little while later Chhitar heard some noise and went out. He saw Mst. Birdhi being beaten by all the three accused persons and when he went near them he was also assaulted by Chhotia. THE accused, then having left their instruments, with which they were beating, on the spot, ran away. He also saw his son Isra lying with injuries on his head and other parts of his body. THE occurrence of beating was witnessed by a girl Lalia, aged about 12 years, who is P. W. 3. She came out of her house at that time to make water and saw the three accused beating Isra in front of a Tibara. She immediately ran and informed Mst. Birdhi, wife of Isra, who came out to the spot and raised a hue and cry. Lalia then went to her house and informed her father about the beating of Isra at the hands of all the three accused. Lalia's father Gopal also came on the spot and saw all the three accused present there armed with mogri, jura and a juri. After he reached the spot the accused persons having left their weapons there, ran away. He found Isra wounded and lying unconscious. Ganesh, Chhotia and Panchia also came on the spot and saw Birdhi being beaten by all the three accused persons. Ganesh went to Thikana Achrol and got the first information report written by Chhitar-mal. THE first information report was however presented at the Police Station Chandwaji the next day at about noon. Isra was sent to the hospital and he died the next day. His post-mortem examination was performed by Dr. B. C. Chatterjee and it was found that there were in all nine injuries on his person. One injury on the head was fatal by which the right parietal bone had been smashed. Except three injuries which were caused by blunt weapons the rest of the injuries were caused by burning. THE cause of death was haemorrhage and shock. THE fatal injury was only one which was on the head of the deceased. THE other injuries were simple. THEre were also several injuries on the body of Birdhi which were all simple. Even though Lalia is of tender years, by questioning, the trial court found that the witness was intelligent and was capable of giving evidence. Her statement shows that she came out of the house at the time when the three accused persons were already beating Isra in front of the Tibara. She could not have seen how the fight started. Mst. Birdhi who came on the spot at the information of Lalia also saw the three accused causing hurts to Isra by fire while he was lying down on the ground. She was also beaten because she raised a hue and cry. The evidence of the other eye-witnesses Chhitar, Ganesh, Chhoti, and Panchia and Gopal does not relate to the beating of Isra, but as these persons reached the spot subsequently, except Gopal, they only saw Birdhi being beaten by the three accused persons. Unfortunately there is nothing on the record from which anything could be learnt about the beginning of the fight. All we know is that Isra started from his house early in the morning to bring fire and there is a gap in the prosecution evidence till we come to the fact of actual beating of Isra by the three accused which was witnessed by Lalia. The learned counsel of the accused contended that the prosecution witnesses, because they are all related to the deceased, should not be believed but under the circumstances of this case it does not appear that the statements of the eye-witnesses are in any way unreliable. The fact that a witness is related to one of the parties cannot by itself be considered sufficient to warrant discarding of his evidence in toto. It may however be that the evidence of such witnesses should be scrutinised carefully. In this case, from the very beginning, all the three accused persons Chhotia, Sukha and Gobinda were named. It cannot therefore be said that these witnesses falsely implicated any one of the accused. From the evidence of Lalia and Birdhi, the trial court held that all the three accused persons took part in beating Isra. The medical evidence of Dr. B. C. Chatterjee shows that one of the injuries on the head of Isra was fatal. The skull was smashed at the place where this injury was inflicted, and the brain was found clotted inside. There was profuse haemorrhage and this injury was responsible for causing the death of Isra. It is also evident that the three accused gave a beating to Birdhi, when she raised a hue and cry, but her injuries are all simple. The main question which arises in this case relates to the applicability of sec. 34 I. P. C. The learned trial judge inferred from the fact that all the three accused were seen beating Isra that they were motivated by the common intention of beating. As there is no evidence as regards how the fight started, we do not know whether all the three accused persons came out and assaulted Isra simultaneously or they came one by one and took part in beating him. The weapons which were used by the three accused in beating Isra are not such weapons as are ordinarily used for the purpose of beating. Chhotia used a mogri, Sukha a juri and Gobinda a jura. From the nature of these weapons it can safely be gathered that each one of the accused armed himself with such thing as he could lay his hands on at the spur of the moment. This is a very important circumstance from which it can be inferred that the accused persons must have suddenly armed themselves to take part in the beating. The fact that Isra went out to bring fire early in the morning and he was subsequently beaten shows that the quarrel must have begun all of a sudden and the accused persons ran with such of the weapons as they could find at the moment. These circumstances exclude the idea of a pre-meditaied plan or a common intention on the part of the three accused. It was however argued on behalf of the prosecution that as all the three accused were observed beating simultaneously their conduct should give rise to a presumption of common intention against them. Such a presumption would not be warranted in view of the fact that the quarrel appears to have started all of a sudden and the weapons used by the accused were instruments of agriculture which are not ordinarily used for the purpose of beating. Moreover, it is not safe to hold that the action of the three accused was in furtherance of their common intention in the present case. The learned lower court has referred to the decision in Mahbub Shah vs. Emperor (A. I. R. 1945 P. C. 118), in which it has been laid down by their Lordships of the Privy Council that "common intention within the meaning of sec. 34 implies a prearranged plan. To convict the accused of an offence applying sec. 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless, the distinction is real and substantial and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in sec. 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case. " The principle laid down in this decision is that from the circumstances of each case the existence of common intention may be inferred. In the present case, there is no other circumstance from which a common intention can be gathered, except that the three accused were seen beating Isra. While, as has been discussed above, there are circumstances from which absence of common intention can be inferred in favour of the accused, in Mahbub Shah's case the facts were that one man cried and two persons, who were brothers, and who were also related to him, came out in front of the complainant's party, and fired guns simultaneously injuring two persons. Ond died and the other one received a minor injury. On these facts their Lordships of the Privy Council held that common intention could not be inferred from the circumstances of the case. The same is the position here. The only circumstance is of simultaneous beating but the mere fact that the accused persons simultaneously acted in beating an individual cannot by itself lead to a conclusive presumption of common intention against them. The other case referred to in the judgment of the trial court is of State vs. Saidu Khan and another (A. I. R. 1951 All. 21) but that decision is of no assistance in the present case as the question formulated for the decision of the Full Bench related to the application of sec. 34 with sec. 304 part 2 I. P. C. and it was held that in certain circumstances even in a case under sec. 304 part 2 sec. 34 could be made applicable. No such question is involved in the present case. However, in the judgment of this case another case is referred to which is Bishuwanath and others vs. Emperor (A. I. R. 1946 All. 153), in which an inference of common intention was drawn from the fact of simultaneous assault. In the present case, as has already been discussed above, there is no evidence as to how the assault began and the decision in A. I. R. 1946 All. 153 is therefor of no avail. In Abdul Qadir and ethers vs. Emperor (A. I R. 1946 Cal. 452) it has been observed that "it is true that to convict any particular accused constructively under sec. 34 of an offence, say of murder, it is not necessary to find that he actuary struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of committing murder. " The result is that under the circumstances of this case there appears no circumstance from which an inference regarding existence of common intention can be inferred against the accused persons. Sec. 34 I. P. C. therefore cannot be applied against them. There is no evidence from which it can be ascertained as to which one of the accused inflicted the fatal blow. Lalia however has stated that Sukha gave a blow on the back of Isra and Gobinda and Chhotia inflicted blows on his head. From the medical evidence it appears that there was no mark of injury on the back of Isra. Her statement as regards the details of injuries cannot therefore be taken to be correct. She is of tender years and when there was insufficient light she could not have clearly observed the details of each individual blow. The evidence of Birdhi proves that all the three accused persons took part in beating Isra. No liability can be affixed on any one of the three accused persons for inflicting the fatal blow on the head of Isra. Consequently, they can only be convicted of an offence under sec. 324 I P. C. for voluntarily causing simple hurt by means of fire. There were six injuries on the person of Isra which were caused by fire and there is evidence of Birdhi that she saw all the three accused causing injuries to Isra by means of fire on different parts of his body. The appeals of the three accused are partially allowed and their con-victions are altered from sec, 302 read with sec. 34 to sec. 324 I P. C. The sentences of death and transportation for life passed against them are set aside. The accused Chhotia and Sukha are sentenced to undergo three years' rigorous imprisonment each and the accused Gobinda in view of his young age is sentenced to one year's rigorous imprisonment only. The reference for confirmation of the death sentence is consequently rejected. . ;