G. K. SHARMA, J. - (1.) THIS appeal is directed against the judgment dated 21st May, '81, whereby, the appellants were found guilty u/s. 304-11, IPC and sentenced to 3 years' rigorous imprisonment and for offence u/s. 323/34, IPC, to 3 months, rigorous imprisonment.
(2.) ON 25th Dec, '80, at about 3 PM, Khilli had some quarrel with Bhajanlai, on a very trivial matter relating to cutting branches of a Neem-Tree. It is said that at about 4 PM,. complainant Prabhu, Khilli, Bhagwat, Sohanlal and Jhandu were sitting on the 'chabutri, in. front of their house. At that time. Bhajanial, Shyamlal and Madanlal arrived there armed with lathis, and then, ail the three gave lathi blows to Khilli and Bhagwat. Khilli was taken to hospital, where he succumbed to his injuries. ON this report, the police registered a case u/s. 307, 323 & 448/34, IPC. But, subsequently on the death of Khilli the case was converted into that u/s. 302 IPC. After completing usual investigation, a challan was submitted by the police against the appellants. The trial court framed charges against accused Madanlal u/s. 302, IPC, or in the alternative u/s. 302/34, and u/ss. 32 3/34 &. 448 IPC. Against the other accused-appellants, charges u/ss. 302/34, 323/34 & 448 IPC, were framed. All the appellants pleaded not guilty and claimed trial. The trial court/after discussing the entire evidence, and the relevant law on the point in question found that the appellants had no common intention of committing murder of Khilli, and so, all the appellants were acquitted of the charges u/s. 302 IPC or in the alternative u/s. 302/34. IPC. It. however, found that a case u/s. 304-II/34, IPC was made out against the appellants, and also that a case u/s. 323/34, IPC wag also established against them. It, therefore, convicted and sentenced each of the appellants as|above. The learned counsel for the appellants argued that from the judgment of the trial court, it reveals that the appellants had no common intention to commit the murder, and that was the reason that they were not found guilty u/s. 302, IPC. It was also argued that from the evidence, it has not been established beyond reasonable doubt as to who had inflicted the fatal blow to Khilli, which resulted in his death; and therefore, on account of this doubtful circumstance, the appellants are entitled to benefit of doubt and they deserve to be acquitted. In the alternative, it was argued that the appellants had no intention of committing the murder or they had no intention of causing such bodily injury intending to cause death, or even, it cannot be said that the appellants had any knowledge that the injuries that they were inflicting, were likely to cause death. Therefore, according to the learned counsel for the appellants, a case u/s. 304-II, IPC is also not made out in all these circumstances, and his argument was that at the most, a case that is made out against, the appellants is u/s. 325. IPC only. Reliance was placed by him on the cases of S. Pal vs. State of U. P. (1) and Shri Narain vs. State of Rajasthan (2 ). The learned Public Prosecutor argued that there is no error in the judgment of the trial court. His submission was that the fatal injury was inflicted on the head of the victim, and that head being a vital part of the body, the accused-appellants had the knowledge that the injuries which they were going to inflict were likely to cause death. Thus, according to him the knowledge of the appellants about the injury which were likely to cause death, cannot be ruled out. It was also argued that if the Court comes to the conclusion that the accused had no common intention of committing murder, then, it can be said that they had common intention of giving beating or assaulting the victim, and in such circumstances, it is not a case where the benefit of doubt is to be given to the accused persons. In this context, he placed reliance on the case of Shri Kishan Vs. State of UP (3 ). Considered the arguments advanced at length and also went through the entire judgment of the trial court. This argument was also raised before the trial court that the accused persons had no common intention of committing murder of Khilli. It was also argued that there is no evidence to establish as to who had inflicted the fatal injury on the head of Khilli. It was also argued that at the most, a case u/s. 325, IPC,is made out against the accused-appellants. The trial court, after discussing the entire evidence, observed that it cannot be definitely/held as to who had inflicted the fatal injury. It also held that it is not clear as to who had inflicted the other injuries on the body of the deceased; and a clear finding was given that the accused persons had no common intention to commit the murder. It was also observed therein that the doctor has not opined that the injuries which were on the person of the deceased, were sufficient in the ordinary course of nature to cause death. It was further observed by the trial court that the accused persons had no common intention to result in the death of the victim, and that their only intention was to give some beating to him. They had certainly inflicted injuries, but, they had, in no circumstance, any intention to commit the murder.
(3.) FOR an offence u/s. 304-II, IPC, it has to be established that the accused persons had acted, by which, the death was caused, and if the act has been done with the knowledge that it was likely to cause death, but, without any intention to cause death. So, knowledge is to be inferred from the act of the accused persons. In this case, the doctor has opined that the injury which was inflicted on the head of the victim, was not sufficient in the ordinary course of nature to cause death. In such circumstances, it cannot be inferred that the accused persons had any knowledge about the act that they were going to commit. Their common intention could be simply to give some beating, but, it cannot be said that they had the knowledge that the act which they were going to do, was likely to cause death. So, an offence u/s. 304-II, IPC, is not made out under these circumstances. In the case of Narain (supra), it was observed by a division bench of this Court: "the injuries were found by Dr. Radheyshyam to be grievous in nature. He further stated that these injuries were sufficient in the ordinary course of nature to cause death. He, however, did not explain if these injuries were individually sufficient in the ordinary course of nature to cause death. That being so, there is no alternative but to alter the conviction of the accused to S. 325, IPC". Similarly, in the case of Shri Kishan (supra), Hon'ble the Supreme Court, has observed as under: "where the accused, who had no previous enmity with the deceased belaboured him and his companion with lathis as protest against their interference in a scuffle over a trifle between the son of an accused and another boy, and the finding of the High Court as to common intention was that the accused had only intended to give a severe beating, merely because one of the accused exceeded the bound and gave a blow on the head of the deceased, which proved fatal, more out of fright and haemorrhage, all the accused cannot be held liable for the injury which proved fatal in the broad circumstances of the case, the accused can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. So, however, as there was no evidence on record as to who dealt the blow which proved fatal, each of the accused must be held to be guilty u/s, 325/34, IPC. " ;