- (1.) THE four appellants, namely, (1) Jeewan, (2) Rekha, (3) Risal and (4) Smt. Chandra, are members of the same family. THE appellant No. 2 Rekha is nephew of the appellant No. 1 Jeewan. THE appellant No. 3 Risal is his son and Smt. Chanda is his wife. THEy have all been convicted of an offence under sec. 304 read with sec. 34, Indian Penal Code, for causing death of Bhura, a real brother of the appellant No. 1 Jeewan. THE three appellants, Jeewan, Rekha and Rasal have been sentenced to five years rigorous imprisonment while the appellant No. 4 Mst. Chanda has been awarded a sentence of two years simple imprisonment. All the four appellants have also been convicted for causing simple injuries to Mst. Jeevani widow of Bhuraram. THE first three appellants have been sentenced to one month's rigorous imprisonment while the fourth appellant Mst. Chanda has been awarded a sentence of fine of Rs. 100/- and in default, one month's simple imprisonment. THEy have filed this joint appeal.
(2.) THE prosecution case briefly stated is as follows : THE deceased Bhuraram was resident of village Samaspur and the appellants are also residents of that village. During the relevant period they lived in the same "gowari", their residential portions having been demarcated by a partition wall. THE relations between the parties were not cordial and the prosecution case is that the accused had instituted civil and criminal cases in various courts against the deceased and his sons. On 22nd December, 1962, a day before the incident which has given rise to the prosecution of the appellants, Gokul son of Bhuraram deceased cut a 'janti' tree which was standing on the boundary between the fields of the accused and the deceased. THE appellants Jeewan and Mst. Chanda are alleged to have abused Bhuraram on that very day while standing in their house. It may be mentioned that the deceased Bhuraram brought the log of the 'janti' tree on the day of the incident. THE prosecution case is that on 23rd December, 1962 at about 7-30 A. M. when Bhuraram was standing in his Gowari the four appellants armed with lathies entered the house of Bhuraram by crossing over the wall standing in between their houses and the house of Bhuraram. THEy assaulted Bhuraram and inflicted a number of injuries. Mst. Jeevani wife of Bhuraram and Bhuraram's son Rameshwar raised cries which attracted Bhuraram to the place of occurrence. Mst. Jeevani also intervened to save Bhuraram but she too was given a lathi blow on her right hand by the accused Jeewan. Mst. Jeevani was also given two lathi blows by Rekha and Mst. Chanda also gave a lathi blow on the left jaw of Mst. Jeevani. When Dhurarm tried to rescue Bhuraram the accused Risal caught his hand and put him aside. Vidhyadhar son of Begraj of the same village who was standing on the roof of his house and witnessing the incident forbade the accused from beating Bhuraram lest he might die. THE accused, however, continued beating Bhuraram and thereafter they crossed over the wall and went away to their houses. Rameshwar son of Bhuraram who was then aged 12 or 13 years, was sent by Mst. Jeevani to the field to call her son Gokul. Gokul having been informed of the incident returned from the field to his house, and saw his father Bhuraram lying dead in the Gowari with injuries on his body. Gokul after getting information from his mother set out for police station, Jhunjhunu and lodged information in writing in the Police Station Jhunjhunu at about 11. 30 A. M. In this report he named all the four accused persons as the assailants of Bhuraram. He also mentioned in the report that there was previous litigation between his father and the accused regarding the land. Manak Chand, Station House Officer, Police Station, Jhunjhunu, registered a case under Sec. 302, Indian Penal Code, against all the four appellants, and proceeded to the scene of occurrence. On the site, he recovered one Angocha, one lathi piece and some pieces of lakh bangles. He took them into his possession vide recovery memo Ex. P. 9. He also prepared a Panchayatnama Ex. P. 8 of the dead body of Bhuraram and despatched the dead body for post mortem examination to the hospital at Jhunjhunu. Doctor, J. C. Jain, Medical Officer Incharge of the Government Hospital, Jhunjhunu, conducted the post mortem examination of the dead body of Bhuraram. He noticed the following ten external injuries on the person of Bhuraram : (1) Bruise 4"xl" on back of chest left side lower part. (2) Bruise 2"xl" on back of chest left side lower part. (3) Bruise 3"xl" back of chest right side upper part. (4) Bruise 2"xl" back of chest right side lower half. (5) Bruise l"xl" over right shoulder blade. (6) Lacerated wound l"x 1/4" x 1/4" right parietal region. (7) Lacerated wound 1/2" x 1/4"x 1/8" mid parietal region. (8) Bruise 2-1/2" x l" back of right forearm middle i". (9) Bruise 2"x l" back of left forearm upper 1/3". (10) Abrasion 1/2" x 1/2" front of left leg upper 1/3". On opening the dead body he detected the following internal injuries : (1) Comminuted fractures of the 10th and 11th left ribs about 2" from their posterior ends. (2) Left pleura was torn over the fracture side about 30 oz. of fluid blood was present in the left pleural cavity. (3) THE left lung was collapsed. THE posterior surface of the lower lobe was bruised all over. THEre was a laceration 1/2" x 1/4" corresponding to the fracture side. In the opinion of the Doctor, the internal injuries were the result of the external injuries Nos. 1, 2 and 3. THE injuries were all ante-mortem. According to the Doctor, the cause of death was - shock and haemorrhage due to multiple injuries mainly due to the injuries to the left side of the chest. As to the question whether these injuries were sufficient in the ordinary course of nature to cause death, the Doctor's statement is not consistent. In examination in chief the Doctor generally stated that the injuries were sufficient to cause death to a human being in the ordinary course of nature but when in re-examination he was specifically questioned as to whether the injuries were likely to cause death, he gave the following reply : "if likely means possibility of causing death, then I say that those injuries could possibly cause death. " He added that there was also the possibility of Bhuraram's surviving after receiving those injuries. In answer to a question by the Court the Doctor further added that as Bhuraram did not receive prompt medical aid he died. If Bhuraram could have received medical aid within an hour he could have survived. Mst. Jeevani was also examined by Dr. J. C. Jain and following injuries were noticed on her person : 1. Bruise 1-1/2" x 1/2" on back of right forearm lower half. 2. Bruise 2" x 1" on back of chest left side. 3. Bruise 1" x 1" on back of chest right side. Bruise 1" x 1" on left half of chin. After usual investigation the accused excepting Rekha were challaned in the court of Civil Judge cum First Class Magistrate Jhunjhunu, for offences under secs. 449, 302 read with sec. 34 and sec. 323, Indian Penal Code. The accused Rekha was abscon-ding at the time when these three persons were challaned but later on he surrendered and a charge sheet against him was also put up in the same court on 7. 3. 63. The Magistrate after enquiry committed all the four appellants for trial to the court of Sessions Judge, Jhunjhunu for offences under sec. 302 read with sec. 34 and secs. 449 and 323, Indian Penal Code. 4. The prosecution examined ten witnesses and produced 24 documents in support of their case. The accused pleaded not guilty. The accused Jeewan came forward with a counter version. His case was that on the date of the incident he was preparing a rope in his gowari when he was attacked by Bhuraram and his wife Mst. Jeevani. Bhuraram dealt a lathi blow on his back and the other on his hand. To save himself, he took up a danda and struck Bhuraram who leaped over the Doli' (Wall) and from there fell (down. Then Beenjaram and Netram Jat, residents of Samaspur, caught him. He alleged enmity with Dhuraram and Vidhyadhar and half of the village people. The other three accused pleaded alibi and keeping in view the trend of arguments, I consider it unnecessary to give in detail the pleas of the three appellants. The Sessions Judge first took up the question as to the venue of the occurrence and considered the rival versions of the parties and eventually concluded that it was convincingly proved that the occurrence took place in the house of Bhuraram as deposed by the prosecution witnesses and not in the house of Jeewan or near the 'doli' as stated by the defence witnesses and the accused Jeewan. He then took up the question whether the three appellants besides Jeewan were present on the spot and participated in the assault and decided this question in favour of the prosecution and rejected the alibi evidence led by the defence. Then scrutinising the prosecution evidence, the learned Session Judge considered the four eye witnesses, namely, Mst. Jeevani PW/2, Rameshwar PW/3, Dhuraram PW/3 and Vidhyadhar PW/4 and accepted them reliable. The learned Judge also found corroboration of the prosecution case in the medical evidence and held it proved beyond all shadow of doubt that the accused persons entered the house of Bhura and injured him in his gowar. In arriving at these conclusions the learned Sessions Judge considered the various arguments of the defence built on the delay in the first information report and the omission on the part of the prosecution to explain the injuries on the person of Mst. Jeevani and recorded a conclusion that there was no delay in lodging informa-tion and that absence of explanation on the part of the prosecution did not exonerate the accused of their liability. The learned Sessions Judge then proceeded to consider as to what offences were made out against the accused and after referring to the iujuries inflicted on the person of the deceased Bhuraram and the opinion of the Doctor, the learned Judge made the following observations: - "except the previous enmity regarding litigation and the immediate fact of cutting the wood log standing in the boundary of the fields of the deceased and the accused persons, there is nothing which could suggest that the accused persons intended to cause the death of Bhura ram. The litigation pending between the parties cannot be a safe ground to impute intention of murder to the accused persons as that litigation was going on from a sufficiently long time. " To support his conclusion, the learned Sessions Judge further observed that no grievous injury was caused to Bhuraram on any vital part of the body, though simple injuries were caused on the head of Bhuraram,and according to the medical evidence the two lacerated wounds on the parietal region of Bhuraram were simple. It was also held that the accused cannot be said to have the knowledge that the act of causing injury to Bljiuraram was so imminently dangerous that it must in all probability cause his death. In this view of the matter, the accused were not held guilty for an Offence under sec. 302, Indian Penal Code. The trial Judge, however, held that the fact that Bhuraram had died instantaneously coupled with the "magnanimity" of the injuries on the 10th and 1lth ribs of Bhuraram established that the accused persons could not have the knowledge for the act of giving beating to Bhuraram was likely to cause the death. According to him the act of the accused fell within sec. 304 Part II, Indian Penal Code. The trial Judge noticed in this case various cases cited before him on behalf of the defence and observed that those cases were distinguishable on facts from the present case inasmuch as in none of the cases the death of the injured took place instantaneously on account of injuries sustained by the deceased. Examining the question of applicability of sec. 34, the Sessions Judge enumerated the following circumstances, namely, (1) that all the accused persons came with lathies from their houses in the gowari of Bhuraram by crossing over the wall standing in between their houses : (2) they all began dealing lathi blows to Bhuraram ; (3) When Mst. Jeevani tried to intervene, Jeevan, Risal and Mst. Chandi dealt blows to her; and. (4) When Dhuraram tried to intervene accused Risal caught his hand and made him aside : and observed that these facts show that all the accused persons had the common in tention to beat Bhuraram. The learned Judge could not find out as to who dealt the fatal blow to Bhuraram but felt inclined to hold that the knowledge that the acts of accused persons were likely to cause the death of Bhuraram, could be safely imputed to all the accused. In support of this conclusion, he relied upon : State Vs. Saidu Khan (1), Adamali Taluqdar Vs. King Emperor (2), Sukhlal Vs. The State (3 ). On these conclusions, he convicted all the appellants under sec. 304 Part II read with sec. 34, Indian Penal Code, in respect of the death of Bhuraram and under sec. 323, Indian Penal Code, in respect of injuries inflicted on the person of Mst. Jeevani. Mr. Chatterji appeared in support of the appeal and the learned Assistant Government Advocate addressed me on behalf of the State. The learned counsel for the defence at the out set frankly stated that he could not dispute the finding of the trial court as to the presence of all the appellants on the scene of occurrence. He also did not challenge the finding as to the participation of the three male appellants in the assault. As regards female appellant, he, however, joined a controversy and contended that her participation in the assault upon Bhuraram is not free from doubt. The main controversy joined by him is as to the nature of offence made out against the appellants. In this connection he advanced a number of alternative arguments. In the first instance, it was submitted that the parties were living in the same gowari, and, therefore, a reasonable possibility of a sudden quarrel and fight having ensued between the parties cannot be eliminated. The assault on Bhuraram must have been sudden and the various appellants could only have same or similar intention but not any common intention; secondly even if it be found that the members of the appella-nts'party had common intention still it could not be positively held that the female appellant could have shared any common intention with the male appellants. In this connection it was emphasised that according to conditions prevailing in this part of the country the female appellant could not be expected to have associated with the male appellants in the pre-concert assault upon the male relation of her husband. Thirdly, it was urged that the common intention, if any, between the parties could be only to cause simple hurt and consequently the accused appellants can be held guilty only under sec. 323 read with sec. 34, Indian Penal Code. The learned Assistant Government Advocate supported the judgment of the trial Judge. It was urged by him that that question whether the appellants had any common intention is a question of fact which has to be determined on a consideration of all the facts and the circumstances of the case. He pointed out that the fact of the appellants having entered into the gowari of deceased Bhuraram after crossing the partition wall and the simultaneous assault and infliction of a number of injuries are compatible only with one conclusion that they had the common intention to assault Bhuraram. He also contended that once the appellants are held to have common intention it is unnecessary to as certain further whether the common intention was to cause death or to cause grievous hurt or simple hurt. According to him, on proof of the facts that the injuries were inflicted in furtherance of the common intention all the accused should be held guilty under sec. 304 Part II, Indian Penal Code, irrespective of the question whether the common intention was or was not to commit any act likely to cause death. In support of this proposition he relied upon the observations of this court in Ganat Vs. The State (4), Bashir Vs. State (5) and Tillu Ahir Vs. Rex (6 ). In his submission the conviction of the male appellants under sec. 304 Part II read with sec. 34, Indian Penal Code, is perfectly justified on the materials on record. As regards the female appellant, the learned Assistant Government Advocate conceded that there is some room for distinguishing her case in view of the conditions prevailing in this part of the country. On the arguments enumerated above, the first question which I propose to examine is whether the appellant had a common intention in assaulting Bhuraram and inflicting injuries upon him. I may at this stage refer to the cases relied upon by the defence counsel to establish that a finding as to common intention should not be arrived at on the facts of the present case. The first case relied upon is Mahbub Shah Vs. Emperor (7 ). In that case their Lordships of the Privy Council laid down the law in the following terms : - "the inference of (common intention within the meaning of the term in Sec. 34 should never be reached unless it is a necessary inference deductible from the circumstances of the case. " Reference was also made to Pandurang Vs. State of Hyderabad (8 ). In this contention their Lordships considered at great length the question as to the propriety of drawing an inference as to common intention and made very significant observations. They held in the first instance, that common intention presupposes prior concert. It requires a pre-arranged plan. But it was added that the plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly. It was also pointed out that prior-concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. Then, their Lordships quoted the observations of the Privy Council extracted above and further observed as follows : - "but to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of cases. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". It is clear that a finding as to common intention can be arrived at by the plan of the campaign as also by running away together from the place of the occurrence or by subsequently meeting. It can also be arrived at by their simultaneous arrival. I may also refer in this connection a decision of this Court in the State vs. Fazal (9 ). In that case their Lordships considered the case of attack of two or more persons and observed, "that the cases, if there is want of evidence as to any declaration of intention by the assailants just before the attack, may be broadly divided into two categories. In the first category come cases where the assailants do not have an opportunity at all of having a pre-arranged plan. In the second category come those cases where there is opportunity for the assailants to have pre-concert. The principle with regard to second category was laid down by their Lordships as under. : - "in all cases therefore, where there is an opportunity for the assailants to arrive at a prearranged plan, and their conduct is only consistent with the existence of a common intention between them, the inference must be that they were acting in pursuance of their common intention. " The present case certainly falls within the second category of the cases according to the test indicated in that case. In the light of the principles laid down in the above case, I have no hesitation in coming to the conclusion that the finding arrived at by the trial judge as to the common intention of the three male appellants is perfectly correct on the materials on record. The various facts, namely, (1) the existence of enmity between the parties; (2) the simultaneous arrival of the male appellants by crossing the partition wall; (3) the simultaneous assault leading to as many as ten injuries and (4) the simultaneous running away of the three male appellants ; unmistakably point out towards the formation of the common intention and the inference as to common intention is a necessary one from the facts and the circumstances of the case in terms of the observations of the Privy Council in Mahbub Shah vs. Emperor (7 ). As regards Chanda the fourth appellant I think there is some room for distinguishing her case as submitted by the Assistant Government Advocate. On the whole I am inclined to give her the benefit of doubt as regards her sharing common intention with the three male appellants.
(3.) THIS brings me to the main controversial question as to what is the liability of each of the appellants for the criminal act committed in furtherance of the common intention which resulted in the death of Bhuraram. The learned counsel for the appellants contends that in order to convict all the appellants for any specific offence the common intention must be to commit that very offence. In support of this contention, he relied upon the following cases. The first case relied upon is Kripal Vs. State of Uttar Pradesh (l0 ). The finding on evidence in that case was that the three appellants Bhopal, Shivraj and Kripal were working the well Milkawala when they saw two labourers Mansingh and Shersingh going somewhat ahead of Jiraj. When they passed by the side of the Milkawala well they were accosted by the appellants as to where they were going and on being told that they were going to work for Jiraj in his field, the appellants abused them and told them not to go there. When Mansingh and Shersingh had gone about 30 or 40 paces. , the three appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in the hand of Shivraj. On this evidence their lordships expressed their inability to uphold the view taken by the High Court that any common intention could be attributed to the three appellants. It was further observed that the only common intention that could be attributed to all the three appellants in so far as the assault on Jiraj was concerned was the common intention to beat Jiraj also with the weapons in their hands, which were likely to produce grievous injuries. In this view, therefore, all the three would be guilty in respect of their assault on Jiraj for an offence under Sec. 326 I. P. C. while Bhopal alone would be guilty in respect of the offence under Sec. 302 I. P. C. " The second case relied upon by Mr. Chatterji is Oswal Danji Tejsi Vs. State (11 ). The facts in this case were that three persons assaulted jointly the deceased with sticks, one of which was with shod with iron-rings. The total number of injuries inflicted to the deceased was 21 some of them being on vital parts of the body. Only two injuries proved fatal. Their Lordships held "that having regard to the paucity of the number of fatal injuries, it would not be proper to say that the three accused persons were necessary actuated with an intention of causing the death of the deceased. But having regard to the fact that three ribs of the deceased were broken and a parietal bone was fractured and an iron-ringed stick was used, it would not also be proper to draw an inference that the common intention was only to cause simple hurt. The proper and only inference to be drawn was that the common intention of the three was to cause grievous hurt to the deceased and grievous hurt was actually caused by one of the three brothers in furtherance of common intention. The offence committed by all the three was one under Sec. 326 read with Sec. 34. " The third case relied upon is Public Prosecutor, Andhra Pradesh Vs. Muttiah (12 ). In that case the two accused A-l and A-2 beat the deceased with a stick on her buttocks and thighs. The Doctor pointed out that the injuries on the buttocks, at the level of lower ribs and on the left shoulder were not on any vital part of the body. The weapon used was a stick. On these facts the High Court held that the idea of the accused in beating the deceased was only to chastise her and there was no intention to kill her and she had also taken her meals 2 or 3 hours before her death. It was further held that having regard to the injuries found on the person of the deceased and the circumstances justifying the chastisement, sec. 302 I. P. C. or sec. 304 I. P. C. would not be applicable, because there is neither the intention nor could there be any apprehension of death in the minds of the accused. The accused were held guilty only under Sec. 323, I. P. C. The learned counsel also relied upon Charan Singh Vs. State (13) but that case is not directly applicable to the present case as the observations in that case have been made in connection with the interpretation of sec. 149. ;