Jokhu and others vs State of U.P.

Vinod Prasad, J.—Challenge in this appeal by the four appellants Jokhu, (A-1), Johan (A-2), Sukhai (A-3) and Soti (A-4) are to their convictions under Sections 304 (II)/34, 326/34, I.P.C. Soti (A-4) has further challenged his conviction u/s 323, I.P.C. For offence u/s 304 (II)/34, I.P.C. four years R.I. and u/s 326/34, I.P.C., three years R.I. and u/s 323, I.P.C., one year R.I. are the imposed sentences by IInd Additional Session''s Judge, Azamgarh in S.T. No. 242 of 1979, State v. Jokhu and others, vide impugned judgment and order dated 24.3.1981. Encapsulated underline facts were that deceased informant Subai was a resident of village Barohi Fatehpur, P. S. Maharajganj, district Azamgarh and was having an enmity with co villager Munni Bhar s/o Jeetu Bhar, regarding a piece of land lying eastward of his courtyard for which proceeding u/s 145, Cr. P.C. was already going on. Because of the aforesaid dispute and litigation, on 26.3.1979 in the noon, A-1 and A-2 both sons of Munni Bhar aforesaid with their associates A-3 and A-4 started digging a ditch for fixing a peg to erect a thatch after encroaching on the courtyard of the deceased informant. Informant deceased forbade them to desist from their such an attempt on which A-1 and A-2 armed ballam started assaulting informant deceased. A-1 pierced his ballam in the abdomen of the informant whereas A-2 assaulted him on his head. Informant fell down shrieking on which his brothers Munnar and Hansraj and Smt. Chanaoti wife of Hansraj rushed to save him. These intervenes were also assaulted by the accused from their respective weapons, as a result of which all the three sustained injuries. A-2 had pierced his ballam on the chest of injured Hansraj and A-3 had assaulted Smt. Chanaoti with ballam. To save their relatives, other womenfolk inmates of informant''s house resorted to brick bats. This incident was witnessed by Ghurahoo Singh, Balli, Surai and other co-villagers, who intervened in midst of the assault and saved the lives of the injured. Since the injuries of all the injured were dangerous, therefore, informant and others arranged for a vehicle and came to Azamgarh hospital and got themselves medically examined. Informant deceased Subai and his brother Hansraj were admitted in the hospital. Thereafter informant injured Subai dictated a F.I.R. Ext. Ka-1 to Rampher Singh P.W. 1, who thereafter carried it to the police station Maharajganj where it was registered at 8.20 p.m. same day under Sections 323, 324 and 307, I.P.C. by head moharir Shiv Dharshan Singh as Crime No. 81A of 1979 by preparing chik F.I.R. Ext. Ka-9.

Investigation into the crime was commenced by Dev Kumar Pandey P.W. 8, who copied the chik F.I.R., came to the spot and recorded interrogatory statement of witness Ghurai Singh and thereafter conducted spot inspection and prepared site plan Ext. Ka-10. Investigating Officer thereafter collected plain and blood stained earth from the spot and prepared its recovery memo Ext. Ka-3. Thereafter P.W. 8 was transferred and further investigation into the crime was undertaken by S. O. Narendra Bahadur Singh, P.W. 6, who recorded statements of witnesses Balli, Surali and thereafter on 10.4.1979 those of witnesses Munnar, Sant Ram, Smt. Chanaoti, Rampher Singh, Rameshwar Singh, Moti Yadav and Bhikhari Bhar. On 14.4.1979, P.W. 6 recorded the statements of accused, who meanwhile had surrendered and were in police lockup. On 28.4.1979, Investigating Officer recorded statement of Surya Bali and thereafter concluding investigation, he charge-sheeted the accused vide Ext. Ka-6.

Informant Subai expired in the hospital on 27.3.1979 at 10.05 p.m. regarding which an information was received to S.I. Siya Ram Mishra, P.W. 5 on 27.3.1979 at 11 p.m. from wardboy and, therefore, on 28.3.1979 at 11.45 a.m., P.W. 4 came to the hospital and conducted inquest on the cadaver of the deceased and prepared inquest report Ext. Ka-2 and simultaneously prepared other relevant papers Exts. Ka-4 to Ka-6. Sealing the dead body, the same was dispatched for autopsy purposes to the hospital.

Dr. R. R. Rai P.W. 7, Medical Officer, Azamgarh conducted post-mortem examination on the dead body of the deceased on 28.3.1979 at 4 p.m., which was brought to him by constable Ramendra Singh. On the corpse of the deceased following ante-mortem injuries were noted by the doctor :

(1) incised wound 2 cm. x 1 cm, on right side forehead 7 cm. above right eye.

(2) stitched wound 14 cm. x 1 cm. on abdomen middle-vertical.

(3) stitched wound with drainage tube on right side of abdomen lower part 2 cm. x 1 cm.

(4) stitched wound with drainage tube 2 cm. x 1 cm. on left side abdomen lower region.

According to further noting by the doctor, deceased was having an average built body. Abdomen valves was stitched layer by layer. Peritoneum was stitched under injury No. 1 and cut under injury Nos. 2 and 3. Clotted blood about one and half oz. was present in abdomen cavity. Ventricle vessels were cut. Mucus membranes of the stomach was normal with stitched wound on the stomach. In the estimation of the doctor, cause of death was shock and haemorrhage. P.W. 7 had proved his post-mortem examination report Ext. Ka-8. According to the doctor, injuries No. 2, 3 and 4, which were stitched were caused by ballam and injury No. 1 could have been caused by ballam.

Medical examination of the injured persons were done by Dr. Vinod Tripathi, M.O., District Hospital, Azamgarh P.W. 9 on 26.3.1979. Munnar was medically examined at 2 p.m. vide Ext. Ka-11, informant deceased Subai was examined at 2.30 p.m. vide Ext. Ka-12, injured Hansraj was examined at 2.35 p.m. Ext. Ka-13, Smt. Chanaoti was examined at 3 p.m. Ext. Ka-14. Medical examination reports of these injured persons are reproduced in seriatum below:

Ext. Ka-11

Examined Munnar aged about 38 years s/o Sri Algoo r/o Barohi Fatehpur, P. S. Maharajganj, Azamgarh at D.H. Azamgarh on 26.3.1979 at 2 p.m.

M.I. : Black mole is present on left side of face over the lip.

B.B. : Rampher Singh s/o D.D. Singh Barohi, Fatehpur Maharajganj, Azamgarh.

Injuries:

(1) Incised wound of 4 cms. x 2-1/2 cms. X bone deep is present on right side of scalp 7 cms. above the middle of right eyebrow associated with haematoma of 5 cms. x 4 cms. surrounding the wound associated with head injury.

(2) Abrasions of 3 cms. x 2 cms. are present on out surface of knee joints of both feet. The colour is red.

The patient is semi conscious.

REMARK.-Injury No. 2 is kept under observation. Inj. No. 2 is simple. Inj. No. 1 is caused by sharp cutting object. Inj. No. 2 is caused by blunt object.

Duration-Fresh.

Ext. Ka-12

Examined Subai aged 30 years s/o Sri Algoo r/o Barohi, Fatehpur, P.S. Maharajganj Azamgarh at D.H. Azamgarh on 26.3.79 at 2.30 p.m.

M.I. :

B.B. : Rampher Singh s/o D.D. Singh R/o same.

Injuries :

(1) Incised wound of 2 cms. x 1 cm. X skin deep is present on right side of skull longitudinally 7 cms. above the middle of right eyebrow.

(2) Incised wound of 4 cms. ? 1-1/2 cms. ? intra abdominal deep is present on abdomen transversally 4 cms. above umblicus.

REMARK.-Injury No. 1 is simple. Inj. No. 2 is simple. Inj. No. 2 is kept under observation. Final opinion will be given after X-ray report. Both injuries are caused by sharp cutting object.

Duration-Fresh.

Ext. Ka-13

Examined Hans Raj aged 28 years s/o Sri Algoo r/o Barohi, Fatehpur, P.S. Maharajganj Azamgarh at D.H. Azamgarh on 26.3.1979 at 2.35 p.m.

M.I. : Black mole is present over the middle of right clavicle.

B.B. : Rampher Singh s/o D.D. Singh r/o same place.

Injuries :

(1) Incised wound of 3 cms. x 1 cm. x skin depth is not decided is present on right side of chest transversely at the level of 10th rib 8 cms. below the nipple.

X-ray chest is advised to decide the depth.

Adv. X-ray chest P.A., view.

REMARK.-The inj. is caused by sharp cutting object. Final opinion will be given after X-ray report.

Duration-Fresh

Ext. Ka-14

Examined Munni Bhar s/o Sri Jeetu Bhar aged about 65 years, r/o village Barohi, Fatehpur, P. S. Maharajganj Azamgarh today-26.3.1979 at 6 p.m. and B/B Sri Tej Bahadur Singh C.P. No. 245 and following injuries were found on his person :

Injuries :

(1) Complaints of pain on lt. upper arm at a level 3 cms. below the lt. shoulder joint externally but no mark of injury.

(2) C/o pain in lt. elbow Jt. but no mark of injury.

(3) Red contusion 1/2" ? 2/10" on left index finger posteriorly in 1 inter phalangeal space. There is formation of crust.

(4) Complaints of pain in Rt. elbow Jt. but no mark of injury.

(5) C/o pain in the root of Rt. index finger but no mark of injury.

M.I. : A black mole on anterior abdominal wall at the level of epigastrium.

N.I. : Simple by blunt weapon. Duration about 1/2 day.

Accused persons were summoned and finding their case triable by Session''s Court, the same was committed to the court of Session''s for trial where it was registered as S.T. No. 242 of 1979, State v. Jokhu and others.

IInd Additional Session''s Judge, Azamgarh charged the appellants under Sections 302/34 and 307/34, I.P.C. A-2 and A-3 were additionally charged u/s 307, I.P.C. while A-4 was also charged u/s 323, I.P.C. All the accused denied their respective charges and claimed to be tried and hence, to establish their guilt, their prosecution commenced.

In it''s endeavour to bring home the charge against the accused, prosecution tendered oral evidences of nine of its witnesses out of whom scribe Rampher P.W. 1, Ghurahoo Singh P.W. 2, Smt. Chanaoti P.W. 3, Munnar P.W. 4 were fact witnesses. Siyaram Misra P.W. 5, N. B. Singh P.W. 6, Dr. R. R. Rai P.W. 7, Dev Kumar Pandey P.W. 8, Dr. Vinod Tripathi P.W. 9 were the formal witnesses. For eliciting the truth of the incident trial court examined doctor J. R. Tiwari as C.W.1, who had examined the three injured persons from the accused side.

In their statements u/s 313, Cr. P.C., A-1 took the defence that he had been falsely implicated in the case and infact, Algoo, Golai, Bhikari, Munnar, Hansraj, Sukhai, Surali, Asol and Purusottam armed with lathis and bricks had trespassed in his courtyard for installing hut by fixing a peg. 145, Cr. P.C. proceeding was going on between him and Algoo and Bhikhari in which he had won. A-1 detested the accused from fixing the peg on which, encroachers chased A-1 and his parents for being belaboured. A-1 and his parents ran and entered into their thatch but the miscreants after trespassing into it assaulted them. A-1 and his parents thereafter ran outside to save themselves but there also they were bet as a result of which all of them sustained blunt object and brick bat injuries. In self defence mother of A-1 had wielded lathi whereas his father had wielded gadasa causing injuries to Munnar, Sukhai and Hans Raj. While retreating from the spot A-1 and his parents were threatened as well. This incident was witnessed by Nikku and Surti. A-1 had also lodged a report regarding the said incident in which charge-sheet was submitted and the trial was pending before the same Court, IInd Additional Sessions Judge. A-2 and A-3 pleaded their alibi by stating that they were not present at the spot. A-4 took the defence that because he was a witness in the F.I.R. of A-1 that he had been falsely implicated.

Trial Judge after marshalling of facts and critically appreciating evidences and circumstances of the case, vide impugned judgment of conviction and sentence dated 24.3.1981 held that prosecution had established appellants guilt u/s 304, Part II/34, I.P.C. and u/s 326/34, I.P.C. and therefore, convicted all the four appellants for the aforesaid offences. It further convicted A-4 u/s 323, I.P.C. All the appellants were sentenced for four years R.I. on the first count, three years R.I. on the second count and A-4 was also sentenced for one year R.I. u/s 323, I.P.C. All the sentences were directed to run concurrently. Challenge in this appeal is to the aforesaid conviction and sentence by all the four appellants.

Pendente lite in this appeal A-3 expired and therefore, his appeal was abated vide order dated 16.11.2011. This now has left this Court to consider appeals of rest of the three surviving appellants A-1, A-2 and A-4.

On such background facts, I have heard Sri Arun Kumar Srivastava, learned amicus curiae since counsel for the appellant did not appear to argue the appeal regarding which a detailed order has already been passed on 24.11.2011, which is on the order sheet of this appeal. After hearing learned amicus curiae judgment was reserved, which is now being delivered by this judgment.

Learned amicus curiae castigating the impugned judgment of conviction and sentence submitted that prosecution version is untrue and witnesses had suppressed real genesis of the incident and had deposed false version. None of the prosecution witnesses are reliable and they had testified embellished and concocted story bereft of real truth. Their depositions do not inspire any confidence. They have not furnished any explaination for the injuries sustained by the appellants side, and consequently they had suppressed actual genesis of the incident. It was contended that the incident had occurred because prosecution side wanted to encroach upon the courtyard land of A-1 and it was they who had started the assault and since injuries to prosecution side were caused in exercise of right of private defence that, therefore, appellants are entitled to the said benefit and consequently their conviction cannot be sustained. Amicus curiae further submitted that conviction of all the appellants u/s 304, Part II/34, I.P.C. is not sustainable and so is the conviction u/s 326/34, I.P.C. as there was no common intention in furtherance of which incident occurred. It was lastly submitted that the incident had occurred more than three decades ago and therefore, if the appellants are not given clean acquittal, sentences awarded to them be reduced suitably, keeping their age and period spent between incident and today and also looking to the fact that none of the appellants had any criminal back ground and history and incident occurred because of thoughtful claim of right to property.

Learned A.G.A. conversely submitted that impugned judgment of conviction is well merited and does not require any interference by this Court. It was argued that all the fact witnesses are reliable and they have deposed consistent and confidence inspiring statements and, therefore, there is no reason for this Court to interfere with the impugned judgment.

I have considered the arguments raised by both the sides. It is a case where both the sides have stated their cross versions about the genesis and manner in which the incident occurred. Prosecution version is contained in F.I.R. Exhibit Ka-1 coupled with Chik F.I.R. Ext. Ka-9 dictated by informant deceased, whereas defence story was narrated u/s 313, Cr.P.C. by A-1.Comparative critical appreciation of both the rival stories indicates that some of the fact in issues are admitted to both the sides. They are date, time and place of the incident, presence of informant deceased Subai, injured Munnar and Hansraj alongwith witness Surali at the time of the incident alongwith A-1 from the side of the appellants.It is also admitted that there was enmity between both the sides regarding a piece of land and Section 145, Cr.P.C. proceeding had already taken place in between them. Thus, both the sides had got motive to assault each other. It is also not disputed that the incident occurred because of fixing of a peg for erecting a thatch in the courtyard. According to the prosecution version, it was the accused side, who had encroached upon the courtyard of the informant deceased and wanted to fix a peg and erect thatch whereas according to the defence case it was the prosecution side which had trespassed into the courtyard of A-1 and wanted to erect a thatch by fixing a peg. Thus, the immediate reason for the incident is also admitted to both the sides. In such a view what has to be adjudged is as to which party was the aggressor. At this juncture, it is relevant to point out that an aggressor has got no right of private defence and therefore, if the appellant side was the aggressor, they cannot claim right of private defence, which could be conferred on them only when, on preponderance of probability, they succeed in establishing that it was the prosecution side which was the aggressor and it was they who had started the assault. Natural corollary of such an argument is that it is to be adjudged that out of the two cross versions, which of the version is confidence inspiring and credible.

Before proceeding further it is noted that A-1 and his parents, according to defence case, had also sustained injuries in the same incident and they were medically examined by C.W. 1 Doctor J.R. Tiwari M.O. P.H.C., Maharajganj on 26.3.1979 and their injury reports have been exhibited as Exts. C.W. 1 to C.W. 3. Theses injury reports are noted below :

Smt. Dilraji received following injuries :

(1) Lacerated injury 1/2" 8 2/10" ? skin deep, right upper arm out side middle. Blood is oozing.

(2) Complaint of pain in right thigh.

(3) Scratch 1" 8 1/2" on the right side of thigh. Margin is deferred.

Injury may be casued by blunt weapon simple in nature.

Duration about half day."

Jokhu received following injuries :

(1). Complaints of pain in right leg and there was contusion 1/2"2/10" on posterior aspect of left ankle joint 2" above the left ankle joint. There is crust.

(2) Lacerated injury on right side of leg 1" ? 3/10" ? skin deep side 3/12" above the root of right ear.

(3) Lacerated injury on left side of head of 2/10" ? 2/10" into skin deep size 5" above the root of left ear.

Injury may be caused by blunt weapon, simple in nature.

Duration about half day.

Munni Bhar received following injuries :

(1) Complaint of pain on left upper arm at level 3 cm. below the left shoulder joint externally, but no mark of injury.

(2) Complains of pain in left elbow joint but no mark of injury.

(3) Red contusion 1/2" 8 2/10" on left index finger posterior in from under phalangeal space. There is formation of crust.

(4) Complains of pain in right elbow joint but no mark of injury.

(5) Complains of pain in right index finger but no mark of injury.

Nature of all the injuries were simple and it were caused by blunt weapon and it''s duration were about half a day.

To adjudge as to who was/could be the aggressor scanning of depositions of four fact witnesses coupled with medical evidence leave no room for doubt that all the fact witnesses had corroborated the prosecution version in its entirety without deviating from the main substantum of the prosecution story. They are fully corroborated by F.I.R. Ext. Ka-1 which, because of the death of the maker of it is also admissible, u/s 32 (1) of the Evidence Act, as a dying declaration, as it relates to the cause of Subai''s (informant) death made soon after the incident. It was recorded without delay and there was no chance of any embellishment and tutoring creeping therein. P.W. 1 who had scribed the said F.I.R., Ext. Ka-1, had testified in this respect and was cross-examined at great length by the defence counsel but P.W. 1 did not budge at all and stood firm during cross-examination. Although prosecution endeavoured to project him as a patent witness in all the incident but that does not diminish authenticity of his testimonies as the scriber of the F.I.R. at the dictation of deceased informant Subai. This witness had categorically stated that all the four injured persons were brought to Bheemwer Bazar and from there they were brought to District Hospital, Azamgarh in a taxi. Ten or Fifteen minutes after arriving at the hospital that the injured were medically examined. At quarter to five p.m. F.I.R. was scribed by him sitting besides Subai''s bed in the hospital at the dictation of Subai. At the time when informant Subai dictated F.I.R., glucose saline was being administered to him and other injured were also present. During dictation informant was not in much pain and simultaneously with dictation that P.W. 1 was scribing the contents of the F.I.R. P.W. 1 categorically deposed that he had not scribed a single word on his own and entire F.I.R. was dictated by Subai, who was educated and had stayed in Calcutta. Subai was lying on the bed and had pain in his abdomen and therefore, he did not sign on the written F.I.R. but had put his thumb impression. He had an injury on his head also. Aforesaid testimony of P.W. 1, in spite of best efforts by the defence could not be dislodged and therefore, deposition of P.W. 1 is worthy of credence and there is no difficulty in accepting his testimony and conclude that F.I.R., Ext. Ka-1, was dictated by the deceased informant, which was scribed and proved by P.W. 1 as Ext. Ka-1. Evidence of P.W. 1 is incredible and confidence inspiring on which intrinsic reliance can be placed. Ext. Ka-1 was dictated soon after the incident and during trial no evidence surfaced which could diminish it''s authenticity or genuiness. There was no chance of it''s concoction and embellishment. Substantum of the prosecution story mentioned therein has been accepted by the accused appellants by statement of A-1 u/s 313, Cr. P.C. as a defence version and therefore, F.I.R., Ext. Ka1, lend credence to the prosecution case and inspires confidence. It is not only a reliable corroborative piece of evidence but, as a dying declaration, is admissible and by itself is sufficient to hold appellants guilty.

Coming to the evidences of other fact witnesses, Ghurahoo Singh P.W. 2, Smt. Chanaoti P.W. 3 and Munnar P.W. 4, have supported the prosecution version on all material aspects of the matter. P.W. 3 herself is injured alongwith her husband Hansraj and, therefore, had no reason to exonerate the real assailants and falsely implicate unknown and unconcerned accused. P.W. 4, being sibling brother of the deceased also had no reason to cook up a false story against the appellants. Both these witnesses were cross-examined searchingly but defence failed to elicit any damaging evidence from them. P.W. 3 is clear in her deposition that she had witnessed that informant Subai had snatched away kudal from the hands of A-1 and had thrown it away on which he was given two ballam blows by A-1 and A-2. She further disclosed that when she and her husband Hansraj and Munnar intervened to save Subai, they were also assaulted. A-1 had assaulted with ballam while A-4 had assaulted them with lathi. She was assaulted with ballam by A-3, as a result which she had sustained incised wound. She also stated that in their defence, other women inmates of her house namely Dulari and Kalawati had pelted terracotta roof tiles on the accused persons, as a result of which they had sustained injuries. She was subjected to lengthy and tiring cross-examination but no damaging evidence could be elicited from her. There are some insignificant omissions in her statement u/s 161, Cr.P.C. but that does not take out his deposition from being a truthful narration of correct facts.P.W. 4 another injured also supported her on all important aspects of the incident. He has categorically stated that A-1 assaulted him with ballam and A-4 by lathi. He was also subjected to lengthy cross-examination but the defence failed to dislodge his testimony as well. The evidence of the two doctors P.W. 7 and 9 who had conducted the autopsy and had examined the injured had deposed convincingly that the injuries sustained by the injured could have caused by ballam and they were struck at or about the time of the incident and that injuries 2, 3 and 4 sustained by the informant deceased Subai were caused by ballam whereas injury No. 1 could have been caused by it. Defence had failed to discredit their expert opinion. In such a view, the entire prosecution witnesses have deposed a well-knit confidence inspiring and infallible story, which commends itself and there is no material on record to doubt the correctness of their depositions.

Contrary to it, the defence of the appellants does not inspire any confidence. As stated herein above, the injury sustained by the three injured persons were simple in nature and were insignificant. Defence had not examined the doctor to establish their injuries and, therefore, the trial Judge, being oblivious of his responsibility to separate the grain from chaff, had examined him as C.W. 1. The aforesaid doctor had clearly deposed that the injuries sustained by the three injured persons were simple in nature and could be caused by bricks. He had proved the injury reports from the side of the appellants as Exts. C.W. 1 to C.W. 3. Defence has not cross-examined the said doctor at all whereas the prosecutor had got it elicited from him that the injuries from the side of the appellants could have been manufactured or could be caused by bricks and stones. In such a view, appellants failed to establish, even on preponderance of probabilities that prosecution side was the aggressor and they acted in exercise of right of private defence. It is not difficult to conclude that it is they who were the aggressors and in this respect, trial Judge committed no error in holding them as such. Conviction of the appellants, therefore, was rightly recorded by the trial court.

Now turning towards an important issue involved in the case, which escaped the notice of the trial Judge, and that is as to what offences have been committed by these appellants? In this respect, findings recorded by the trial Judge are not supported by the evidences and material on record coupled with the depositions of the doctors. Whether Section 34, I.P.C. will apply or not has completely escaped the notice of the trial Judge. It failed to take note of the fact that consistent prosecution case from the very beginning, as was stated in the F.I.R., was that only two of the accused A-1 and A-2 had assaulted the informant deceased. No other accused persons had even ventured to assault him. This allegation remained consistent throughout the trial. In such a view, so far as rest of the two accused A-3 and A-4 were concerned, they could not have been saddled with that very common intention as was possessed by A-1 and A-2. Incident had occurred all of sudden without any premeditation. The crime was not orchestrated in a preplanned manner. It occurred all of sudden at the spur of the moment when from the side of the prosecution only Subai informant was present at the spot alongwith accused persons. The incident started with informant and A-1 and A-2. Other two accused A-3 and A-4 did not participate in the incident at all. They only jumped into the arena of the assault only when the witnesses appeared at the seen of the assault to save the informant. On such evidences, it is very difficult to conclude that A-3 and A-4 also had the same common intention as that of A-1 and A-2. Their conspicuous non-participation into the assault on Subai, supports this view and, therefore, I am of the opinion that so far as Section 34, I.P.C. is concerned, all the appellants could not have been convicted with it''s aid and in this respect, conviction of A-3 and A-4 by the trial Judge with the aid of Section 34, I.P.C. is unsustainable.

Above conclusion is further strengthened by the fact that the informant deceased sustained only two injuries regarding which specific allegations by the prosecution is that they were caused by A-1 and A-2 only. Each of them, therefore, gave a single blow with their ballam without repetition of another blow and this will not indicate that all the accused shared common intention to annihilate the deceased. This conclusion is further cemented by the fact that at least A-2 never had any intention to commit murder of the deceased or to cause him grievous injury, as the force applied by him while wielding his ballam only once, whose injury was dependent upon force applied in making the assault, was only skin deep. He never repeated the blow nor used it in a piercing manner. At the spur of the moment only one blow causing simple injury skin deep is not indicative of the fact that A-2 also had common intention as that of A-1. Otherwise also from the prosecution allegations and testimonies of fact witnesses, it does not indicate that any common intention to commit murder or culpable homicide not amounting to murder was present prior to the incident or developed at the spur of the moment. Incident started all of a sudden and two of the accused did not share it and hence what can be safely concluded is that there was absence of any common intention to commit murder or culpable homicide not amounting to commit murder. Each accused was, therefore, liable for his individual act. Trial Judge fell in error on this aspect of the matter and, therefore, it''s conclusions that common intention was present cannot be sustained. It is because of aforesaid reason that he had convicted the accused with the aid of Section 34, I.P.C. for all the substantive offences. Result of the discussion is that conviction of all the appellants u/s 304, Part II/34, I.P.C. cannot be sustained and has to be set aside. Since Section 34 has no application on the facts of the appeal each accused is liable for his individual act. On this aspect support can be had from various Apex Court decisions. In Sripathi and Others Vs. Stae of Karnataka, , it has been held by the Apex Court as under :

Coming to the plea regarding the applicability of Section 34, I.P.C., we find that the evidence is not very specific as regards the role played by A-1, A-2 and A-3. It is the prosecution version that A-4 had the knife in his pocket which he suddenly brought out and stabbed the deceased.

Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab, , the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

The section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted u/s 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy and Others Vs. State of Andhra Pradesh, , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

The conviction of the appellant Nos. 1, 2 and 3 by application of Section 34, I.P.C. does not appear to be in order. However, the conviction as recorded so far as A-4 is concerned, is well founded and no interference is called for. In the result, the appeal filed by A-1, A-2 and A-3 (Sripathi, Mallikarjun, Sanjaya) stands allowed while that of Pandit (A-4) stands dismissed. A-4, who is on bail pursuant to the order dated 22.3.2002, shall surrender to custody forthwith to serve the remainder of sentence, if any. The bail bonds in respect of the other appellants shall stand discharged because of their acquittal by the present order.

In Arun v. State by Inspector of Police, Tamil Nadu, AIR 2009 SC 1256, it has been held by the Apex Court as under :

On consideration of the evidence and the material available on record and in the light of the legal principles referred to hereinabove, it is clear that the accusations made against the appellant making him constructively liable for the criminal act of murder committed by A-4 with the aid of Section 34, I.P.C. were not established. So far as the present appellant is concerned, there is no evidence whatsoever available on record to show sharing of any common intention.

In Suresh and Another Vs. State of U.P., , it has been held by the Apex Court as under :

It is difficult to conclude that a person, merely because he was present at or near the scene without doing anything more, without even carrying a weapon and without even marching alongwith the other assailants, could also be convicted with the aid of Section 34, I.P.C. for the offence committed by the other accused." In the present case, the F.I.R. shows that at about 9.15 p.m. the appellant and A-4 entered the house and stood there; on seeing them, the deceased got up from his chair and moved towards them "asking them who are they" whereupon A-4 shot the deceased causing bleeding injury due to which deceased fell down, the appellant and A-4 ran away towards the street. The contents of the F.I.R. and the evidence of P.W. 1 and P.W. 2 read together make it clear that the appellant was not armed as erroneously held by the High Court. In the circumstances, it would be impossible to draw any inference that A-4 committed murder in furtherance of common intention shared by the appellant. In fact, neither there is any charge nor any evidence even as against A-4 that he shared common intention alongwith the appellant to commit murder of the deceased. There must be more than one person to share common intention to commit criminal act for attracting the applicability of Section 34, I.P.C. It is clear from the evidence that A-4 did not act conjointly with the appellant in committing the murder. If he did not act conjointly with the appellant, the appellant could not have acted conjointly with A-4.

Opining thus that Section 34 does not apply on the facts and circumstances of the appeal, conviction of the appellants u/s 326/34, I.P.C. also becomes unsustainable and has to be set aside. There is another reason for not upholding said conviction and that is that none of the injured sustained any grievous injury. For recording a conviction u/s 326, I.P.C. causing of grievous hurt is sine qua non. Doctor, P.W. 9, who had examined all the injured nowhere stated that but for deceased informant any other injured had sustained any grievous hurt. There is no X-ray or supplementary reports existing on the record culling out causing of grievous hurt. There is another apparent error in the opinion of the trial Judge in this respect and that is that A-4 was not armed with any sharp edged weapon. He was alleged to have been armed with a blunt object, which he is alleged to have wielded on the injured and not on the deceased. He, therefore, could not have been convicted u/s 326, I.P.C. Both A-3 and 4 played no role in assaulting informant deceased and were only passive spectators of the two blows hurled on him all of a sudden without prior concert and hence holding them guilty with the aid of Section 34, when common intention did not pervade all the accused is illegal and to this extent also impugned judgment of the trial court cannot be affirmed and has to be set aside. As held earlier the irresistible conclusion, which can be drawn from the facts, circumstances and evidences stated during trial can be that each of the accused was liable for his individual act and no comity of purpose existed. Impugned judgment to this extent is fallacious and has to be rectified.

Residue of the above discussion is that conviction of all the appellants under Sections 304, Part II/34 and 326/34, I.P.C. are unsustainable and are, therefore, set aside. A-1 is held guilty under Sections 304, Part II and 324, I.P.C. for committing culpable homicide not amounting to murder of informant deceased with sudden impulse by piercing his ballam in his abdomen only once because of wrongful claim of right to property and for causing simple hurt to rest of the injured. A-2 is held guilty u/s 324, I.P.C. for causing one simple skin deep injury to the deceased and simple hurt to rest of the injured. Appeal of A-3 stands abated as he is dead. A-4 is held guilty u/s 323, I.P.C. for causing simple hurt to the injured only. All these three appellants (A-1,A-2,A-4) are, therefore, convicted accordingly.

On the question of sentence it is found that the incident occurred in 1979. More than three decades have gone by during intervening period. Prosecution has not brought on record that these appellants had any criminal back ground or that they were earlier convicts. Incident occurred because they were claiming, although wrongly, ownership over land in dispute regarding which they were litigating u/s 145, Cr. P.C. with the informant. Incident occurred at the spur of the moment without any orchestrated plan. Deceased was given single blows by each of the two appellants A-1 and 2 and no other accused assaulted him. Appellants have now become very old and from their physical appearance, as they were present before me, they have become fragile and weak having grey hair and beard. All of them are farmers and A-1 is a septuagenarian, whereas A-2 and A-4 are 65 and 60 years of age. Therefore, looking to the entire facts and circumstances in my humble opinion they deserve leniency and compassionate approach in matters of sentence.

For committing offence u/s 304, Part II appellant Jokhu, A-1, is hereby sentenced to one year R.I. For committing offence u/s 324, I.P.C. both A-1 (Jokhu) and A-2 (Johan) are hereby sentenced to the period of imprisonment already under gone by them with fine of R 20,000 on each of them. Appellant Soti (A-4) is hereby sentenced to period of imprisonment already under gone by him with fine of R 1,000 u/s 323, I.P.C. Appellant Jokhu A-1 shall be accorded benefit of set off by including period of imprisonment already undergone by him while calculating his entire period of imprisonment.

Appellants are allowed one month time to deposit entire amount of fine, failing which trial Judge is directed to realise it as arrears of land revenue from them within one month thereafter. After fine is deposited or it is realised as aforesaid, trial Judge will notice Munnar, Hansraj and Smt. Chanaoti all injured and shall hand over compensation of R 10,000 to each of them.

Appellant Jokhu (A-1) is on bail. He is directed to surrender forthwith to serve out remaining part of his sentence imposed hereinabove. Rest of the two appellants A-2 and 4 are on bail. They need not surrender. There sureties shall be discharged only after they have deposited the fine or it has been realised from them as directed herein above.

This appeal is partly allowed as above. Let a copy of this judgment be certified to the trial court for it''s intimation and follow up action at it''s end.