Shri Kishun & Ors. v. State of U.P.

- Khanna, J. Shri Kishun; Ram Bali, Jai Shri and J attan were convicted l:!y learned Sessions Jud_ge Ballia under section 302 read with section 34 Ii:idian Penal Code for causing the. death of Seru ( a_ged 45) and under seCl!ion 323 read with section 34 Indian Penal Code for causing injuries to Sadaphal (PW 2), u and were sentenced to undergo imprisonment for life en the former count and rigorous imprisomnent for a period of one year on the latter count. The sentences in the case of each accused were ordered to run concurrently. On appeal the High Court cf Allahabad affirmed the order of the trial court. The fou'r accused thereafter came •to this Court by special leave. The leave was, however, limited to the question whether the offence disclosed was murder or culpable homicide not· amountin~ to murder or some lesser offence. ·

Ram Bali and Jattan accused are brothers. Likewise, Shri Kishun and Jai Shri accused are brothers and are the nephew of Ram Bali and Jattan. The prosecution case is that on February 13, 1964 about half an hour before sunset Bhagwati (PW 3). who is aged about 11, and his sister's son Kolahal were playing guchhi (a game played with paisa) in the Khalihan of Shri Kishun accused. Nandlal, son of Shri Kishun, came there and protested against the playing of the game of guchhi in his Khali-han, Nandlal also threw away in a neighbouring field the paisa with which the game was being played. A scuffle then took place between Nandlal and Bhagwati. Seru deceased and Sacla-phal PW on coming to know of the aforesaid scuffle went to Shri Kishun's Khalihan and stopped ·the scuffle. Nandlal then began to weep and went to his hous.e. Seru, Sadaphal, Bhagwati and Kolahal made a search for the paisa which had been thrown away by Nandlal but could not find it. They then left for their houses. When they reacijed in front of the house of one Surai Mal, the four accused, who were armed with lathis, accost-ed them. The. ac~used protested against the beating given to Shri Kishun's son (Nandlal) and,at 1he same time, belaboured Seru and S11c!aphal. Seru on receipt of injuries fell down on th·~ ground and became unconscious. On alarm being raised. Sada Shiva (PW 4) and Bajaram (PW 5) reached there, whereupon the accused run away. Sadaphal PW carried Seru on a cot to police station Deoria. On the way Seru was put in a riksha. The party then went to police station Beoria where first informa-tion report was lodged by Sadaphal PW at 7 .05 p.m. the same evening. Seru and Sadaphal were rthen directed to go to the hospital for medical examination. Seru, however, died on 1he way. Post mortem examination on the dead body of Seru was perform~d by Dr. C. D. Agarwal on February 14, 1964. The following five injuries were found on the body of Seru :

"1. Contused wound l"X-!" bonli\ on top of head

with swelling on •the forehead.

¶2Contused wound i" X -!" bone, front of right

leg middle.

¶3Interrupted abraison 2" X i" front of right leg. 4. Ecchymosis on right upper and lower eye lid -!-"

¶5Swelling on-left temporal region 2!" X 2"

Death was due to sho.ck and haemorrhage as a result of the !read injury. Sadaphal PW on examination by Dr. Nagrath was found to have seven simple injuries caused wi'th blunt weapon like· lathi.

At the trial the plea of the appellants was that a she buffalo belonging to Seru had trespassed into the field of Shri Kishun accused. Jattan accused caught hold of the she buffalo and was talcing it to the cattle pond when Seru and Sadaphal made an effort to snatch the she buffalo. They also assaulted Jattan with lathis. On alarm having been raised by Jattan, Jai Shri reached there and both of them used their lathis in self-defence. Evidence was Jed in defence to show that J a1tan accused on being examined on February 18, 1964 was found to have two injuries on his person.

The High Court in maintaining the conviction of the accuxd appellants relied upon the evidence of four eye witnesses, Sada-phal (PW 2), Bhagwa1i (PW 3), Sada Shiva (PW 4) and Rajaram (PW 5). It was also observed iJy the High Court that the prosecutio11 evidence did not indicate as to which of the accused appellants had given the fatal blow to Seru. Although the High Court took note of the fact that there did not exist any previous enmity between, the accused on the one h~nd and Seru deceased on the other, the argument that ~. accused were not ~uilty of the offence under section 302 read wrth section 34 Indian Penal Code did nGt find favour with the High Court. In the result, the appeal was dismissed.

In this Court Mr. Datar on behalf of the accused-appellants has argued tha:t the case against the accused falls under section 325 read with section 34 Indian Penal Code and not under sec-tion 302 read with section 34 Indian Penal Code. As against that }.fr. Rana has supported the judgment of •the Hig)l Court. In our opinion, the submission made by Mr. Datar is well-founded.

There was no previous enmity betw~en the accused-appellants on the one hand and Seru deceased and Sadaphal PW on the other. The occurrence was the off-shoot of a rifling incident in the mlture of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. Thefour accused 1theteupon protested to Sero and Sadaphal for the beating given to Nandlal and· also be-laboured them with Iathis. Five injuries were caused to Seru. Apart from the one injury on the head, which proved fatal, the other injuries were not of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prose-cution evidence, as observed by the High Court, does not indicate as to which one of the accused-appellants inflicted the fat!ll blow on the head of Seru. As such, none of the accused can be-held to be personally liable for the fatal injury. The liability can only be vicarious under section 34 of the Ihdian Penal Code and, as sucq, we have to fi11d out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. In this context we find that the Hign Court has arrived at the following finding :

"There could, therefore, be no doubt that the com-mon intention of the appellants was to give a severe beating to Seru and Sadaphal."

The above finding as well as tl:e broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bou;,J and gave a fatal blo-.v on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common in-tention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused .gave the fataf blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offenc.e under section 325 read with section 34 Indian Penal Code. We accordingly alter the conviction of each of the accused-appellants from under sedtion 302 read with section 34 Indian Penal 'Code to that under s. 325 read with s. 34 Indian Penal Code. Each of them is sentenc.ed to undergo rigorous imprisonment for a period of five years on that count. The sentence of rigorous imprison· ment !or a period of or.e year awarded to each of the accused under section 323 read with section 34 Indian Penal Code would run concurrently with th·~ above sentence. The appeal is allowed to that extent.

CRIMINAL APPELATE JURISDICTION : Criminal A_ppeal No. 273 of 1968.

Appeal by special leave from the judgment and order dated December 15, 1967 of the Allahabad High Court in Criminal Appeal No. 478of 1965.

R. B. Datar, for •the appellants I l 0. P. Rana, for the respondent.