Hinda and Another vs State

S.K. Dubey, J.—The two appellants, Hinda and Raddha, aggrieved of the judgment passed in S.T. No. 8 of 1986, decided on 29-2-1988, by Additional Sessions Judge, Ashoknagar, District Guna, whereby each of them was convicted u/s 302 read with Section 34, and Section 324 read with Section 34, Indian Penal Code, and respectively sentenced to imprisonment for life and two years'' rigorous imprisonment-bott sentences to run concurrently-have preferred this appeal from jail.

The prosecution case in brief is that on the morning of 16th March 1985 at about 6.00 a.m. in village Churali, Bhaniabai, the wife of deceased Nandu, was returning to her home after answering the call of nature; on the way accused Hinda caught her hand; on this she threatened him to beat with Chappal. Hinda hid himself near a tree. By this time deceased Nandu came and asked Hinda why did he catch the hand of Dhaniabai (P.W. 1). On it Hinda inflicted a blow with a ''pharsa" on the neck of Nandu. Daulatia (P.W. 12), the brother of deceased Nandu, gave a ''lathi'' blow on Hinda. Meanwhile, the brother of accused Raddha, armed with a ''Farsa'' came there and tried to inflict ''farsa'' blow. On it Nandu and Daulatia saved themselves and ran away towards Tala field; there Hinda and Raddha chased them. On the field, another accused Kunja reached on his bicycle, took his Lohangi from the bicycle and gave a ''Lohangi blow on Nandu. Hinda, Raddha, Kunja and Hariram, a juvenile, who was having a ''lathi'', gave a beat to Nandu by their weapons. Daulatia, who tried to save Nandu, was also beaten. After doing this ''marpit'' the accused persons ran away. Nandu and Daulatia were taken in a bullock-cart to the police station, but on the way Nandu died. First information report (Ext. P-18) was lodged by Daulatia (P.W. 12) at police Station Chanderi, which is about 10 Km. away from village Churali. On the lodging of the first information report the four accused persons were booked for offences under Sections 302 and 307 and Section 341, I.P.C. Autopsy on the dead body of Nandu was performed by Dr. H.S. Mudgal (P.W. 11), who found the following injuries:--

(i) Incised wound, 1 1/2" x 3/4" x bone deep, over occipital region, oblique in direction, ante-mortem in nature, caused by sharp cutting object.

(ii) Lacerated wound, 2 1/2" x 3/4" x bone deep, over left Parietal region, underneath muscles were lacerated and left side parietal bone was fractured and depressed, laceration of membrane, effusion of blood upon dura matter present due to middle menegeal artery torn, effusion of blood also present upon surface of brain. Injury is ante-mortem and caused by hard blunt object.

(iii) Contusion 2" x 1", over left upper arm middle and anterio-lateral region, injury is ante-mortem and caused by hard and blunt object.

The Doctor opined that the cause of death was coma due to compression of brain by effusion of blood upon dura matter from middle menengeal artery torn by piece of fractured parietal bone caused by injury over parietal region. The injuries were sufficient in the ordinary course of nature to cause death. The report is Ex. P. 17-A. After investigation only the present accused-appellants were charge-sheeted, as accused Kunja was absconding and against accused Hariram who was a juvenile, Challan was filed in the Juvenile Court. The accused were charged under Sections 202 and 307, IPC, and no specific charge either u/s 302-34 or Section 307-34, IPC, was framed. The trial Court after trial convicted and sentenced the two accused/appellants as aforesaid.

Shri B. R. Sharma and Shri K.K. Gupta, counsel for the appellants, and Shri V.G. Khot, Deputy Government Advocate, were heard.

After hearing counsel appearing for the appellants and the respondent and considering the entire evidence adduced by the prosecution, we are of the opinion that the conviction of the appellants u/s 302-34 and Section 324/34, IPC cannot be sustained, as the evidence is lacking for concluding that the appellants shared the common intention in causing the death of the deceased, and the accused would be responsible for their individual acts. Further, the circumstances also indicate that the accused who caused the injuries, have not intended to cause the death of the deceased so as to attract any of the clauses of Section 300, IPC as the accused did not have the knowledge that such injuries were likely to cause death.

The prosecution case, as put forth, and the evidence of the prosecution witnesses, viz., Dhaniabai (P.W. 1), Thlaram (PW. 2), Jalam (PW. 3) and Daulatia (PW. 12), clearly indicate that the quarrel arose between accused Hinda and deceased Nandu on catching hold of the hand of Dhaniabai (PW. 1) by accused Hinda. At that occasion no other persons were there. The intention of Hinda was only to do marpit, which is clearly borne out from the statement of Dhaniabai (PW. 1). In the marpit accused Hinda also received injuries, which are proved by Dr. H.S. Mudgal (PW. 11) vide Ext. D. 5.A. True, Nandu and Daulatia (PW. 12) on seeing Hinda and Raddha coming to attack them, to save themselves, ran towards Tals fields, and the two accused to teach them a lessor, chased them. Accused Kunja came there on a bicycle and, seeing the quarrel, took out his ''Lohangi'' and gave a blow on the head of Nandu, as would be evident from the statement of Daulatia (PW. 12), who also stated that thereafter Hinda gave a ''farsa'' blow and so also accused Raddha, and thereafter the accused persons ran away from the spot.

Without going into the question of absence of charge and its effect for holding the accused guilty u/s 302/34, IPC the prosecution must bring out from the evidence the precise sharing of the common intention to kill the deceased. If that is missing and is not proved by the prosecution, the accused who did not cause any fatal injury to the victim who is killed in the incident, cannot be held guilty u/s 302 read with Section 34, IPC. The seriatim of occurrence and the participation of the accused persons clearly indicate that neither there was any pre-concert to kill deceased Nandu nor there was any sharing of the common intention. Therefore, the conviction of the appellants u/s 302 read with Section 34, IPC, in our opinion, is liable to be set aside and is hereby set aside.

Individually also, the appellants'' conviction u/s 302, IPC, cannot be main-tamed. On an analysis of the injuries in the instant case. It could not be said that any of the appellants inflicted injuries with an intent to cause death or to cause such injury as is sufficient in the ordinary course of nature to cause death. Though the Doctor has stated that the injuries were sufficient in the ordinary course of nature to cause death, it is difficult to hold that the injuries cumulatively were sufficient in the ordinary course of nature to cause death. A look to the post-mortem report (Ext. P. 17-A) and the statement of the Doctor who performed the autopsy, clearly shows that it was injury No. (ii) which caused fracture of left parietal bone, laceration of membrane, effusion of blood upon dura matter due to tearing of middle menengeal artery. This injury was caused with a Lohangi by accused Kunja, who is absconding. Injury No. (1) was an incised wound, and injury No. (iii) was a contusion over left upper arm middle and anterio-lateral region. ''Farsa'' injuries were caused by appellants Hinda and kaddha. As we have found that there was no common intention, the appellants, on the story as put forth by the prosecution, cannot be convicted u/s 302, IPC, also, for the injuries caused by them. They can, at most, be convicted u/s 326, IPC As such, we alter the conviction of the appellants to one u/s 326, IPC convict them thereunder and sentence them to the period of sentence already undergone, which they are suffering from 1985.

We need not deal with the conviction of the appellants u/s 324/34, IPC as the appellants have already suffered the sentence imposed thereunder.

In the result, the appeal is partly allowed. The conviction of the appellants u/s 302/34, IPC and the sentence of imprisonment for life is set aside; instead, each of the appellants is convicted u/s 326, IPC, and sentenced to the period of imprisonment already undergone by each of them. The appellants shall be set at liberty forthwith, if not required in connection with any other offence.