SHARMA, J. - (1.) SUKH Chand and Mangi Lal, the appellants herein, were tried before the learned Additional Sessions Judge (Fast Track) Bandikui District Dausa in Sessions case No. 37/2001. Learned Judge vide judgment dated December 19, 2002 convicted and sentenced them as under:- SUKH Chand: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. Mangi Lal: U/s. 302/34 IPC: To suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. U/s. 323 IPC: To suffer simple imprisonment for one year. The substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that in the intervening night of June 27 and 28, 1999 around 2 AM While Ghamandi (since deceased) and his family members were sleeping in the open chowk of their house, appellants Sukh Chand and Mangi Lal came over there. Sukh Chand dealt with a blow with axe on the head whereas Mangi Lal inflicted Lathi blow on the back of Ghamandi. Hearing hue and cry when Parsadi and Shrawan Lal intervened, they were also beaten up. Informant Kalu Ram (Pw. 6) reported the matter to Police Station Bandikui. On that report a case under sections 307, 451, 323, 324 and 34 IPC was registered and investigation commenced. 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) Bandikui District Dausa. Charges under sections 302, 323 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 14 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Three witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. Prior to his death the injuries sustained by Ghamandi were examined vide injury report (Ex. P-1) which are as under:- 1. Incised wound 6cm x 1cm x scalp tissue deep on left side of scalp. 2. Lacerated wound 1cm x 1/2cm x subcutaneous tissue deep on base on Rt. hand middle finger back side. 3. Abrasion 2cm x 1 1/2 cm above & medial side of Rt. knee. 4.Bruise 6cm x 1cm at mid of left thigh 5. Abrasion 1cm x 1cm at middle phalynx of Rt. hand ring finger. On x-ray vide X-ray report (Ex. P-4) fracture of metacorpal bone was found. On his death Ghamandi was subjected to autopsy and as per postmortem report (Ex. P-6) following antemortem injuries were found on the dead body:- 1. Lacerated wound 1cm x 1/4cm x muscle deep 2. Bruise 3cm x 1 1/2 cm yellowish green in colour placed on dorsum of Lt. forearm middle 1/3 3. Stitched wound 16cm long vertically placed on middle abdomen. 4. stitched wound U shaped 17cm long placed Lt. Fronto parietal area to going on mid parietal region 5. Stitched wound irregular in shape of size 8cm extending from Lt. Temporal to Lt. Parietal region to scalp. 6. Abrasion 1/2 x 1/2 Lt. elbow. In the opinion of Dr. Ashok Mathur (Pw. 4) the cause of death was coma as a result of injury to skull and brain with cumulative effect of abdominal injury with secondary infection, sufficient to cause death in the ordinary course of nature. Shrawan (Pw. 7) vide injury report (Ex. P-2) received one bruise 2cm x 1cm on medial side of left knee joint. Similarly Parsadi Lal (Pw. 8) vide injury report (Ex. P-3) received one bruise 3cm x 1cm on back of left hand (palm) and C/o pain on left side of head. In the same incident accused party also sustained injuries which are as under:- Mangi Lal vide injury report (Ex. D-1a) received following injuries:- 1. Lacerated wound 1cm x 2cm x 1cm back of proxymal phalynx of left hand middle finger 2. Abrasion 2cm x 2cm on upper 3rd of Rt. Forearm back 3. Bruise 2cm x 1cm on lateral aspect of upper 3rd of rt. Upper arm 4. Bruise 4cm x 3cm on lower 3rd of back of left leg. Smt. Dhanni vide injury report (Ex. D-2a) received following injuries:- 1. Lacerated wound 1/2 cm x 1/2 x subcutaneous tissue deep at middle phalynx of Rt. hand middle finger 2. Bruise 2cm x 1cm on lateral mateolus of Rt. foot. 3. Abrasion 1/2 cm x 1/2cm in part of Rt. hand middle finger at proxymal phalynx. Nathya vide injury report (Ex. D-3a) received one bruise 3cm x 2cm on back of left shoulder joint. Ramroop vide injury report (Ex. D-4a) received one lacerated wound 1cm x 1/4 cm x 1/4 cm on mid of anterior of Rt. leg and one bruise 1cm x 1cm on back of Rt. leg ankle joint. Johan Lal vide injury report (Ex. D-5a) received one bruise 4cm x 2cm on back of lower 3rd of left forearm and other bruise 3cm x 1/2 cm at mid of left side of abdomen. 1. Swelling 6cm x 3cm on left fronto parietal region of head. 2. C/o pain right shoulder region no visible injury seen. 3. Red bruise 6cm x 2cm on back lumber region lower part Rt. side 4. C/o pain right thigh no visible injury seen. 5. C/o Pain right leg lower part no visible injury seen. The prosecution case is founded on the testimony of informant Kalu Ram (Pw. 6), Shrawan (Pw. 7) and Parsadi (Pw. 8 ). Supporting the contents of first information report Kalu ram deposed that while he, Ghamandi, Parsadi and other family members were sleeping in the open chowk he suddenly got up on hearing barking of dogs and found Sukh Chand and Mangi Lal standing near the cot of Ghamandi. Sukh Chand then inflicted axe-blow on the head of Ghamandi and Mangi Lal gave blows with lathi on the abdomen, hands and his legs. When Parsadi and Shrawan intervened they were also beaten up. Statements of Kalu Ram gets corroboration from the testimony of Shrawan and Parsadi.
(3.) ON behalf of appellant Sukh Chand plea of alibi was raised and in support of the plea Dr. Hari Singh Bhandari (Dw. 1) and Male Nurse Arvind Kumar (Dw. 3) were examined who deposed that Sukh Chand was admitted in Mahaveer hospital from June 24, 1999 till July 30, 1999. Learned counsel for the appellant urged that cross case was registered against the complainant party and in fact the complainant party was the aggressor. It is also contended that origin and genesis of the occurrence has been with held and the prosecution witnesses have not explained the injuries sustained by the accused party. Having carefully scanned the material on record following factual situation emerged:- (i) FIR No. 405/99 under sections 147, 447 and 323 IPC was registered at Police Bandikui on June 28, 1999 at 8. 20 AM on the basis of written report submitted by appellant Mangi Lal against Ghamandi, Kalu, Parsadi, Ramesh, Shrawan, Mukesh, Chiranji and Gulla. (ii) Members of accused party namely appellant Mangi Lal, Dhanni, Nathya, Ramroop and Johan Lal have sustained injuries and those were not explained by the prosecution witnesses. (iii) At 2. 30 AM on June 28, 1999 Police Station Bandikui received telephonic message that two groups of Meenas picked up quarrel. This information was incorporated in Daily Rojnamcha (Ex. P-70 ). (iv) Parsadi (Pw. 8) in his cross examination stated that relations between the complainant party and accused party were cordial and they had no prior enmity. (v) Informant Kalu Ram (Pw. 6) in his cross examination stated that he himself did not go to police station but police arrived in the village and inquired about the incident. On being asked by the police he submitted the report at the hospital. (vi) The incident occurred in the intervening night of June 27 & 28, 1999 and Ghamandi died on July 8, 1999 i. e. , after 10 days. With this backdrop of factual scenario we have to adjudge whether the appellants shared common intention in committing the crime. In Mahbub Shah vs. Emperor, AIR 1945 Privy Council 118, it was laid down that section 34 IPC enacted a principle of joint liability in the doing of a criminal act and essence of that liability was to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention and to invoke the aid of Section 34 successfully it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. On that principle it was held that common intention within the meaning of the section implied a pre arranged plan and to convict the accused of an offence, it should be proved that the criminal act was done in concert pursuant to the pre arranged plan. In the instant case the prosecution has failed to establish that the criminal act was done by the appellants in concert pursuant to the pre arranged plan. Thus section 34 is not attracted and appellant Mangi Lal could not have been convicted with the aid of Section 34 IPC. ;