Mohar Singh and Narain Singh vs State of Rajasthan

Guman Mal Lodha, J.—This appeal is directed against the judgment of the trial court whereby the appellants, namely, Mohar Singh and Narain Singh, were convicted and sentenced as under:

Narainsingh & u/s 304, Part II, IPC, 5 year''s R.I. Moharsingh under 323, IPC 3 month''s R.I.

A short point has been argued by Sri B.K. Pathak, the learned Counsel for the appellants, but with great nicety that the offence cannot travel beyond Section 325, IPC on the assumption that the finding of the trial court regarding appellants joining at the house of Kishansingh and coming out together with lathi and heading the deceased, are correct.

Developing his submission, Shri Pathak pointed out that fatal injury has been caused by Kishansingh who is not appellant in this appeal and has already been convicted by separate trial earlier. These appellants of this appeal are said to be authors of the injuries which are simple in nature.

An important feature of this case is that the present two appellants, Narainsingh and Moharsingh are not related to Kishansingh nor live in the same house and nearby, and the prosecution has not shown as to how they came in the house of Kishansingh and what was was the motive of joining Kishansingh accused.

Shri Pathak then argued that as a matter of fact only simple injuries were caused by the present appellants and, therefore, they are liable for the offence u/s 325, IPC.

Shri S.B. Mathur, the learned Public Prosecutor has opposed the appeal and according to him, all are responsible for the act of Kishansingh accused and as they came together and with common object, they, by virtue of Section 34, IPC, are liable for the injuries on the person of the deceased inflicted by Kishansingh accused, which resulted in the death of Sukha (deceased).

I have carefully considered the rival contentions of the learned Counsel for the parties. It would be pertinent to refer to the judgment in Ghariby v. State AIR 1953 All 421 wherein the observations of Full Bench decision in State v. Saidu Khan AIR 1951 Raj. 21 were extracted and those observations were of the then Justice wanchoo who ultimately adorned to the office of the, Chief Justice of India. Para 9 reads as under:

If we now turn to Section 304, Penal Code, we find that before a person can be convicted under the latter part of that section, the court must record a finding that the act which caused death was done with the knowledge that it was likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Accordingly if four persons attack another with lathis, with the common intention of beating him, we have an illustration of a criminal act done by several persons in furtherance. of the common intention of all. If death is caused as a result of one of the injuries inflicted by some one of these persons, they would all be surely guilty u/s 325, Penal Code, in view of the provisions of Section 34. The question may arise, if they can be held gulity of the graver offence u/s 304, Penal Code. It will be seen that a particular knowledge is an essential ingredient of the offence u/s 304, latter part. Unless a court can record a finding that an accused person had the knowledge that the act done by him and his companion was likely to cause death, the accused cannot be rightly held guilty u/s 304, Second part. This was the view taken by a Full Bench of our court in State v. Saidu Khan AIR 1951 Raj. 21(A). At page 43 of the report Wanchoo, J. observed as follows:

I am, therefore, of opinion that it is possible to,convict an accused person of an offence u/s 304, Part II, read with Section 34, Penal Code, provided the court is of the opinion that each person taking part in committing the crime in furtherance of the common intention of all had knowledge that their act was likely to cause death. This is my answer to the first question.

The first question referred to the Full Bench was, "Whether it is possible to convict an accused person of an offence u/s 304, Part II, read with Section 34, Penal Code.

In the light of the above observations, let me examine ingredients and import of Section 34, IPC which read as under:

Acts done by several persons in furtherance of common intention : When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

In the treatise, ''Indian Penal Code'' by All India Reporter Ltd. Nagpur (Vol. 1) (W.W. Chitaley & V.E. Bakhale 3rd Edn.) at page 161, thp authors have discussed the import of Section 34, IPC, as under:

Suppose, on the evidence, the court comes to the conclusion that A, B and C only planned to do such acts as could be expected to cause grievous hurt. In such a case, although death is actually caused as a result of the attack on D, this section will not apply and the assailants will not be liable for the death. The reason is that the doing of an act causing the death of D was not within the scope of their design. If the court finds that any one of the assailants was responsible for the death, he alone will be liable for the death; and the others will be liable only for causing grievous hurt. Thus the same criminal act may give rise to two offences (1) grievous hurt and (2) culpable homicide.

This shows that the expressions "criminal act" and "offence" do not mean the same thing for the purpose of this section. When it is said that several persons do "a criminal act" in furtherance of their common intention, the meaning is not that they commit an "offence" in furtherance of their common intention. It is not an offence that they plan or carry out. But it is an act or series of acts that they plan and carry out. The offence or "offences" are committed in the course of their carrying out their criminal design.

When determining the question whether this section applies to a case, what has to be seen is whether a "criminal act" as explained above was planned and whether the act which constituted the offence which has been actually committed fell within the purview of that plan. In other words, the questions are (a) what was the kind of act planned, (b) what was the act actually done and (c) whether such act was of the kind planned. If the act done is of the same kind that was planned, then this section will apply and every member of the group will be liable for whatever offences is constituted by the act done in the same manner and to the same extent as the actual doer of such act.

Three questions posed were, (a) what was the kind of act planned, (b) what was the act actually done and, (c) whether such act was of the kind planned. Thereafter, their answers were given as noted above.

Shri S.B. Mathur, on the contrary, placed reliance upon the decision of the Apex Court in Mer Dhana Sida Vs. State of Gujarat, where in while dealing with import of Section 304, Part 2, IPC, their Lordships of the Apex Court observed that inference regarding common intention to cause injuries which were likely to cause death, inference can be drawn from the number of injuries caused, the circumstances in which they came to be caused and the ferocity of the attack on the deceased; that, all persons participating in such attack would be imputed with the knowledge that they were likely to cause injuries which were likely to cause death; and factual and medical evidence in that case, their Lordships held that the accused must be convicted u/s 304, Part II read with Section 34, IPC.

In the present case, it has not come on record that the accused party (all appellants along with Kishansingh) planned to commit the murder of Sukha. That can easily be inferred because the trial court has not convicted this accused Kishansingh for the offence u/s 302 but convicted them u/s 304, Part II, IPC. Section 304 Part II, IPC reads as under:

Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or...with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause such death but without any intention to cause death or to cause such bodily injury as is likely to cause death.

Now since there was no intention to cause death the plan of the accused being not there, only question to be considered is what was the act done. Obviously the act done by Kishansingh accused causing fatal injuries was not according to the common plan of all the accused. Kishnsingh accused can be attributed knowledge of causing such injuries which would result in causing death ordinarily but that knowledge cannot be extended by any legal fiction to the present appellants, because Section 34, IPC, contemplates common intention. In view of the above, the conviction of these appellants cannot be sustained u/s 304 Part II, IPC. These accused appellants can be attributed intention to cause grievous injuries which were caused by Kishansingh accused, and therefore, for that they can be held guilty u/s 325, IPC. The appellants have been convicted and sentenced by the trial court for 5 year''s R.I. Their conviction and sentence are altered from Section 304 Part (II), IPC, to Section 325, IPC.

In the result, this appeal is partly allowed to the extent that while maintaining the conviction and sentence of the accused-appellants u/s 323, IPC, their conviction is altered from Section 304, Part II IPC to Section 325, IPC, they are sentenced to undergo 2 years R.I. and to pay a fine of Rs. 1000/-each. The appellants would be entitled to the benefit of Section 428 Cr. PC. The appellants are on bail. They shall surrender to their bail bonds. The trial court is directed to execute the sentence upon the appellants according to law.