SHARMA, J. - (1.) THE two appellants faced trial in Sessions Case No. 259/2001 before the learned Additional Sessions Judge (Fast Track No. 2) Jhalawar (for short `trial judge') who vide Judgment dated April 26, 2002 convicted both the appellants under Section 302 read with 34 IPC and sentenced each of them to suffer life imprisonment and fine of Rs. 1000/-, in default to further suffer six months simple imprisonment.
(2.) AS per prosecution story on May 13, 1999, Sultan Khan, SHO Police Station Raipur (District Jhalawar) (PW. 19) reached to the Hospital Raipur and recorded parcha bayan of Smt. Badam Bai (PW. 17) whose husband Purilal and son Shyam were admitted to the hospital in an unconscious state. In the Parcha Baryan (Ex. P. 8) Badam Bai stated that Hazari illegality cut `khejri tree' from their land and when her husband protected Hazari hurled abuses at him. Around 12. 30 PM on the said day when her husband had gone to the market Hazari and Motilal (appellants) belaboured her husband and inflicted lathi blow on his head. On hearing the cries of her husband she and her son Shyam rushed to the spot. Appellants Hazari and Motilal then gave blows on the person of Shyam with axe and lathi Purilal and Shyam were immediately removed to the Hospital Raipur. On the basis of the statement of Badam Bai a case under Sections 341, 323, 325 and 34 IPC was registered and investigation commenced. Purilal and Shyam succumbed to their injuries on May 16, 1999 and Section 302 IPC was added Autopsy on the dead bodies was performed, appellants were arrested necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track No. 2) Jhalawar, Charges under Section 302 alternatively 302, 34 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr. P. C. , the accused claimed innocence and stated that have been implicated falsely. Motilal stated that Purilal and Shyamlal came armed with weapons at his house and beat him due to which his left hand fractured and there were other fractures also on his leg. Hajari took the plea of alibi. However, no evidence in defence was adduced. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Death of Ghanshyam and Puri Lal was undeniably homicidal in nature. As per post mortem report (Ex. P. 35) following ante mortem injuries were sustained by Ghanshyam:- (1) stitched would 27 cm long on (L) fronto parieto temporal region with dark clotted blood. (2) stitched would 3cm long (L) parietal region associated with the abrasion soft scars reddish. (3) Abrasion 3 x 1cm on (L) parietal region Reddish brown scab. The cause of death was coma brought about as a result of antemortem injuries to skull and brain. As per post mortem report (Ex. P. 36) following ante mortem injuries were sustained by Poori Lal:- (1) Diffuse swelling on (L) fronto tempo parietal region extending into (R) tempo parietal region. The cause of death was coma brought about as a result of antemortem injuries to skull and brain. The prosecution case rests on the testimony of Badam Bai (PW. 17) and Sumitra Bai (PW. 1) Supporting the parcha bayan Badam Bai in her deposition stated that because her husband made protest after the khejri tree was cut, he was given beating by Motilal and his son Hazari. Motilal was armed with axe, whereas Hazari had a lathi. Sumitra Bai (PW. 1) who is daughter of Purilal, deposed that on the day of incident when Purilal proceeded to well Motilal and Hazari belaboured him at that time Hazari and Motilal were armed with axe and lathi. Hazari inflicted lathi blow on the head of Purilal. On seeing the incident when she and mother raised hue and cry, her brother Shyam came over there but he was also beaten up by Motilal who gave axe blow on the head of Shyam, whereas Hazari inflicted with lathi on his hand. Dr. Rajesh Kumar Verma (PW. 19), who performed autopsy on the dead bodies, categorically deposed that injuries sustained by both the deceased were sufficient in the ordinary course of nature to cause death. Sultan Khan, Investigating Officer, (PW. 9) recovered axe at the instance of Motilal vide memo (Ex. P. 16 ). Recovery of lathi was also affected at the instance of Hazari vide memo (Ex. P-19 ). It is contended on behalf of the appellants that appellant Motilal also lodged FIR No. 68/99 against Purilal and Shyam. Motilal sustained injuries on his hand and on being x-rayed his ulna bone was found fractured. After Motilal was admitted to the hospital vide Ex. D-4, he got operated and operation notes were existed as Ex. D-6. Dr. Gauri Shankar Chauhan (PW. 16) was examined to establish that in the course of incident Motilal sustained injuries. It is also contended that the incident had taken place in front of the house of appellants and the deceased came armed with weapons at the residence of appellants and gave beating to appellant Motilal. As per the learned counsel since the injury sustained by Motilal have not been explained by the prosecution, the appellant deserve to be acquitted. It is alternatively urged that in the facts and circumstances of the case the offence against the appellants does not travel beyond Section 304 Part II IPC as the incident occurred all of sudden in front of the appellants house and the appellants did not intend to cause death.
(3.) PER contra, learned Public Prosecutor supported the impugned judgment and canvassed that the appellants inflicted injuries with sufficient force and caused death of two persons. As the appellants had shared common intention, they have been rightly convicted under Section 302 read with 34 IPC. Reliance is placed on Virsa Singh vs. State of Punjab (AIR 1958 SC 465 ). We have pondered over the rival submissions and scanned the material on record. Before we proceed further we deem it appropriate to consider the elements required to establish the charge under Section 302 IPC. In Virsa Singh vs. State of Punjab (supra) it was indicated by Supreme Court that the prosecution must prove following facts before it can bring a case under Section 300 "thirdly. ":- " First, it must establish quite objectively that a bodily injury is present. Secondly, the nature of the injury must be proved; these are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution the offence is murder under Section 300 thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that there was no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. " ;