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Judgment
Sangeet Lodha,J.
These two appeals (Appeal No.199/05 & 932/03) arise out of the judgment and order dated 18.1.05 passed by the Sessions Judge, Sri Ganganagar
in Sessions Case No.69/03 and judgment and order dated 3.7.03 passed by the Additional Sessions Judge (Fast Track), Sri Ganganagar in Sessions
Case No.67/02. By judgment and order dated 3.7.03, the appellants Mahaveer Prasad has been convicted for offences under Sections 302/149, 148,
449, 364, 323, 324, 342 IPC and Sheoprakash has been convicted for offences under Sections 302/149, 148, 449, 364, 323, 324, 342 & 341 IPC,
whereas, vide judgment and order dated 18.1.05 passed by the Sessions Judge, Sri Ganganagar in Session Case No.69/03, the appellants Shivnarayan
and Dilaver Singh have been convicted for offences under Sections 302/149 and 148 IPC.
The appellants have been sentenced as under:
MAHAVEER PRASAD AND SHEOPRAKASH
Section 302/149 IPC
Life imprisonment with fine Rs.1,000/-; in default of payment of fine one year simple imprisonment.
 Section 148 IPC
One year’s rigorous imprisonment.
Section 449 IPC
Ten years rigorous imprisonment with fine of Rs.500/-; in default of payment of fine to further undergo six months’ simple imprisonment.
Section 364 IPC
Seven years rigorous imprisonment with fine of Rs.500/-; in default of payment of fine to further undergo six months’ simple imprisonment.
Section 323 IPC
One year’s rigorous imprisonment.
Section 324 IPC
Three years rigorous imprisonment with fine of Rs.200/-; in default of payment of fine to further undergo three months’ simple imprisonment.
Section 342 IPC
One year’s rigorous imprisonment.
That apart, Sheoprakash has been sentenced for conviction for offence under Section 341 IPC for one month’s simple imprisonment.
SHIVNARAYAN @ SHYONARAYAN AND DILAVER SINGH
Section 302/149 IPC
Imprisonment for life with fine of Rs.1000/-; in default of payment of fine to further undergo one year simple imprisonment.
Section 148 IPC
One year rigorous imprisonment.
The sentences have been directed to run concurrently.
The prosecution story may be summarised thus:
On 10.5.02 at 10.25 P.M., the complainant Ramlal’s son Shyamlal and Rajiram Suthar both were doing wood work in the house of Jagdish
Kasaniya s/o Sheokaran Kasaniya. In the evening around 6.45 P.M., Rajiram Suthar rushed inside the house of the complainant Ramlal, while he was
sitting in the courtyard. He told to the complainant to rescue him as Shyoprakash and Mahaveer were belabouring him. In the meantime, Shyoprakash
and Mahaveer Prasad while chasing Rajiram entered the house of the complainant Ramlal and took away Rajiram to the open area (bakhal) in the
house of Jagdish. The complainant followed them to the house of Jagdish. Shyoprakash was armed with axe, Mahaveer, Pawan, Chhindra, Shiv
Narayan s/o Shyokaran, Dilaver were armed with sticks. All of them while sharing the common object started belabouring Rajiram with sticks and
axe. The complainant Ramlal raised alarm and tried to rescue Rajiram. Rajiram’s wife, Kaluram Suthar, Shyamlal Suthar and many others also
reached on the spot. All of them tried to rescue Rajiram but the accused persons didn’t spare Rajiram and continued to beat him by sticks.
Whenever Rajiram became unconscious, the accused persons poured water over him and on his regaining the consciousness, continued to beat him. In
the meantime, there was noise that police has arrived, then all the accused persons fled away leaving Rajiram behind. Rajiram was unconscious and
the blood was oozing out from the injuries suffered, who was admitted to the hospital with the police help. During treatment in the Government
Hospital, Rajiram succumbed to the injuries.
Narrating the incident as aforesaid, complainant Ramlal submitted a written report (Ex.P/5) to the SHO, Police Station, Chunawad at 10.25 P.M., at
the Government Hospital, Sri Ganganagar. On the basis of the written report, the police registered the FIR No.53/02 (Ex.P/40) and the investigation
commenced.
During the investigation, after inquest proceedings, the dead body of Rajiram was subjected to autopsy by Medical Jurist Dr. Alok Bhati. Necessary
memos were drawn. Accused persons were arrested. At the instance of accused Sheoprakash, blood stained axe and at the instance of accused
Dilaver Singh and Mahaveer, blood stained sticks were recovered. At the instance of juvenile Pawan Kumar and Kuldeep Singh @ Chhinda, blood
stained sticks were recovered. Pawan Kumar, Kuldeep Singh @ Chhinda and Dilaver Singh were found to be juvenile and accordingly, forwarded to
the Juvenile Justice Board, Bikaner. The blood stained articles were sent for examination to the Forensic Science Laboratory (FSL) and report was
obtained. After completion of the investigation, the police filed charge sheet against accused Sheoprakash, Mahaveer Prasad and Shiv Narayan for
offences under Section 449, 341, 342, 302/149, 147, 148, 364 IPC before the Judicial Magistrate No.2, Sri Ganganagar. Accused Shiv Narayan
absconded and therefore, the charge sheet was filed against him under Section 299 Cr.P.C. The matter was committed to the Sessions Judge, Sri
Ganganagar for trial, which was later transferred to the court of Additional Sessions Judge (Fast Track), Sri Ganganagar, which was registered as
Sessions Case No.67/02.
The charges were framed against the accused Mahaveer Prasad and Sheoprakash for offence under Section 148, 449, 341, 364, 342, 302 in
alternative 302/149 and Section 323, 324 in the alternative 323/149, 324/149 IPC. Both the accused denied the charges and claimed trial.
During the trial, on behalf of the prosecution as many as 14 witnesses (P.W.1 to P.W.14) were examined and documentary evidence was exhibited
as Ex.P/1 to P/64A. Accused Sheoprakash and Mahaveer Prasad were examined under Section 313 Cr.P.C. Sheoprakash stated that he and Rajiram
were at Shyamlal’s house. Rajiram with an intention to kill him, attacked by saw (aari) and on his raising the hand, his palm was got injured. When
he shouted, Rajiram ran away. When he was going to lodge the report, on the way he met the police personnel and apprised about the incident. The
police came to the village and during this time Rajiram was beaten by the villagers. The police did not take the report and on Rajiram dying, he was
falsely implicated. Mahaveer Prasad took the stand that he did not indulge in beating, he has been falsely implicated. In defence, D.W.1-Radheyshyam
was examined and documentary evidence was exhibited as Ex.D/1 to D/7.
After due consideration of the rival submissions and the evidence on record, by the judgment under appeal dated 3.7.03, the accused Sheoprakash
and Mahaveer Prasad were convicted and sentenced as indicated above.
Accused Pawan Kumar, Kuldeep Singh @ Chhinda and Dilaver Singh were produced before the Juvenile Justice Board, Bikaner. After due
inquiry, Juvenile Justice Board vide order dated 9.9.02 held that as on the date of commission of the crime Dilaver Singh had already attained the age
of majority and therefore, he cannot be considered to be a juvenile in conflict with law. Aggrieved thereby, accused Dilaver Singh preferred an appeal
which was decided by the Additional Sessions Judge No.2, Bikaner vide order dated 2.12.02, whereby the matter was remitted to the Juvenile Justice
Board to pass an appropriate order afresh after due inquiry. The Juvenile Justice Board vide order dated 7.7.03 again held that accused Dilaver Singh
does not fall within the category of ‘juvenile in conflict of law’ and the matter was directed to be placed before the criminal court of
competent jurisdiction for trial. Accordingly, the supplementary charge sheet was filed against Dilaver Singh before the Judicial Magistrate No.2, Sri
Ganganagar for offences under Sections 147, 148, 342, 302/149 IPC.
Accused Shivnarayan, who was absconding surrendered before the court of Judicial Magistrate No.2, Sri Ganganagar on 2.9.03. On the request of
the prosecution, accused Shivnarayan was sent to police custody for further investigation.During the investigation, at the instance of accused
Shivnarayan, a stick was recovered. After completion of the investigation, the police filed supplementary charge sheet against accused Shivnarayan @
Sheo Narayan for offences under Sections 147, 148, 341, 342, 323, 449, 364, 302/149 IPC before the Judicial Magistrate No.2, Sri Ganganagar on
29.9.03. On the basis of the charge sheet filed, the learned Judicial Magistrate while taking cognizance against the accused Dilaver Singh and
Shivnarayan, committed the matter to the court of Sessions Judge, Sri Ganganagar for trial. The matter was later transferred for trial to the Additional
Sessions Judge (Fast Track), Sri Ganganagar, however, after abolition of the Fast Track court, the matter again stood transferred to Sessions Judge,
Sri Ganganagar.
The learned trial Judge framed the charges against the accused appellants Shivnarayan and Dilaver Singh for offences under Sections 148, 302 in
the alternative 302/149 IPC. The appellants denied the charges and claimed trial.
During the trial, the prosecution in support of its case, got examined 12 witnesses (P.W.1 to P.W.2) and the documentary evidence was exhibited
as Ex.P/1 to P/55A. The appellants were examined under Section 313 Cr.P.C, wherein they had taken the stand that Rajiram had caused injuries to
Sheoprakash by saw, thereupon, villagers belaboured Rajiram, who died and thus, being brother and nephew of co-accused Sheoprakash, they have
been falsely implicated in the case. In defence, D.W.1-Krishnalal was examined as witness and the documentary evidence was exhibited as Ex.D/1 to
D/4.
After due consideration of the rival submissions and the evidence on record, vide judgment under appeal dated 18.1.05, the appellants Sheoprakash
and Dilaver Singh have been convicted for offences under Section 302/149 and 148 IPC and sentenced as indicated above.
Hence, these appeals.
At the outset, learned counsels appearing for the appellants submitted that the appellants do not want to press their challenge to the impugned
judgment to the extent of conclusion arrived at by the learned trial Judge regarding their involvement in the act of belabouring the deceased. But the
accused persons had no intention to kill Rajiram and they had no knowledge that the injuries inflicted by them is likely to cause death and thus, for
causing grievous hurt to the deceased, their conviction for offence cannot travel beyond the provisions of Section 325 IPC. Learned counsel submitted
that even if it is found proved that the act by which the death is caused, was done by the accused persons with the knowledge that it is likely to
cause death, their conviction cannot travel beyond the provisions of Section 304 Part II, IPC.
Mr. Pradeep Shah, learned counsel appearing for the appellants submitted that co-accused Pawan Kumar and Kuldeep Singh, who were juvenile
have already been acquitted by Juvenile Justice Board, Sri Ganganagar vide order dated 29.6.09 passed in Criminal Case No.143/07, giving benefit of
doubt. As per the finding record by the Juvenile Justice Board, they were not considered to be the member of unlawful assembly involved in
belabouring Rajiram and the said order has since attained finality, the appellants cannot be held guilty for commission of the offence with the aid of
Section 149 IPC considering them to be the members of unlawful assembly involved in belabouring the deceased Rajiram. Learned counsel submitted
that as per post mortem report (Ex.P/1), as many as 47 injuries were found on the person of the deceased, out of which, except the head injury i.e. a
lacerated wound on the frontal region of skull, none of the injury was found fatal. Learned counsel submitted that if the evidence on record is
examined in correct perspective, it does not reflect that the accused persons had intention to cause death or to cause such bodily injuries as likely to
cause death rather, the evidence on record clearly indicates that the deceased was belaboured under grave and sudden provocation with no intention
to cause death or cause such bodily injury, which is likely to cause death. It is submitted that as per the prosecution the accused persons were armed
with axes and sticks and thus, had there been an intention on their part to kill Rajiram, nothing prevented them from causing injuries on the vital part of
the bodies by use of the weapons. Learned counsel would submit that as a matter of fact, the accused had no such intention and therefore, they
consciously inflicted the injuries on non vital part of the bodies. Drawing the attention of the court to the post mortem report, learned counsel submitted
that most of the injuries which are bruises and abrasions, were caused on non vital part of the body and only injury caused on head which is found
fatal, is not attributed to the accused Mahaveer Prasad and Dilaver Singh and thus, their conviction for causing grievous hurts cannot travel beyond
provisions of Section 325 IPC. Accordingly, it is submitted that the conviction of the appellants deserves to be altered from offence under Sections 148
and 302/149 IPC to Section 325 IPC.
Mr. Kalu Ram Bhati, learned counsel submitted that as per the prosecution, Sheoprakash caused injuries on the person of the deceased by sharp
edged weapon. Drawing the attention of the court to the post mortem report (Ex.P/1), learned counsel submitted that Rajiram received various injuries
by sharp edged weapon but none of the injury was caused on vital part of the body, most of the injuries caused by sharp edged weapon were found on
the legs and thus, the head injury which is found fatal, cannot be attributed to the appellant Sheoprakash. Learned counsel submitted that as per the
FSL report, there was no blood found on the axe recovered rather, the human blood was found on its broken wooden handle. Learned counsel would
submit that as a matter of fact, deceased Rajiram after entering into verbal heated altercation with the appellant Sheoprakash, made an attempt to hit
his head and when appellant Sheoprakash resisted the blow, he received injury on his hands, which is not in dispute and thus, on the facts and in the
circumstances of the case, where the appellant and other co-accused have inflicted injuries in defence, they cannot be convicted for offence under
Section 302 IPC. Learned counsel submitted that in absence of any evidence showing that the appellant had intention to cause death of Rajiram or to
cause such bodily injuries which is likely to cause death, on account of the injuries caused, his conviction cannot travel beyond the provisions of
Section 304 Part II IPC. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in the matter of ‘State of
Rajasthan Vs. Poona Ram and Others’ AIR 2017 SC (Criminal) 144.
Mr. R.S.Gill, learned counsel appearing for appellant Shiv Narayan contended that no specific overt act has been assigned by the eye witnesses to
the appellant Shiv Narayan. Learned counsel while adopting the arguments advanced by learned counsels Mr. Pradeep Shah and Mr. K.R.Bhati
appearing for the co-convicts, submitted that for involvement of the appellant Shiv Narayan in belabouring the deceased Rajiram, without there being
an intention to cause death or cause such bodily injuries likely to cause death, his conviction cannot travel beyond the provisions of Section 304 Part II
IPC.
On the other hand, learned Public Prosecutor submitted that all the accused persons in furtherance of the common intention to kill Rajiram caused
as many as 47 injuries by axe and sticks. Learned Public Prosecutor submitted that it has come on record that the accused persons were beating
Rajiram again and again, when he fell unconscious, they poured water on him and on his regaining consciousness, he was again belaboured and thus,
apparently, the appellants have acted in cruel manner and caused death of Rajiram and thus, their conviction for offence under Section 302 IPC
cannot be faulted with. Learned Public Prosecutor would submit that looking at the act of accused persons in continuously beating the deceased
Rajiram in cruel manner, even if it is assumed that the accused persons assaulted the deceased under grave and sudden provocation, the provisions of
Exception 4 to Section 300 IPC are not attracted in the matter so as to bring the offence committed by the accused appellants within the ambit of
provisions of Section 304 IPC.
We have considered the submissions of the learned counsels appearing for the appellants and the learned Public Prosecutor and carefully scanned
the evidence on record.
The autopsy of dead body of deceased Rajiram was conducted by Dr. Alok Bhati (PW 1). As per the post mortem report (Ex.P/1), 47 injuries
were found on the person of the deceased, which may be summarised as under:
“1. Incised wound 2 cm x 0.5 cm x bone deep left shin anterior        surface upper linear to lower border of left knee.
Incised wound 1.5 cm x 0.5 cm x muscle deep on left shin 4Â Â Â Â Â Â Â Â cm below and inner to injury no.1.
Lacerated wound 1.5 cm x 0.5 cm x bone deep left shin        anteriorly middle part of 5 cm below injury no.1.
Lacerated wound 2 cm x 0.3 cm x muscle deep left shin         anterior surface 4 cm below injury 3.
Bruise in Area 10 cm x 3 cm below and medial part of left        knee.
Bruising in almost whole of lower lower leg anteriorly and        both sides borders.
Bruise 12 cm x 1.5 cm medial to medial malleolar of left leg.
Bruise 6 cm x 3 cm medial border left foot.
Incised wound 4 cm x 0.5 cm x bone deep 6 cm above        medial malleolus right leg.
Incised wound 2 cm x 0.3 cm x muscle deep 7 cm above        injury 9.
Incised wound 1.5 cm x 0.3 cm x muscle deep 3 cm above        injury 10.
Incised wound 1 cm x 0.3 cm x muscle deep 1 cm above        injury 11.
Incised wound 2.5 cm x 0.3 cm x muscle deep 8 cm above        ankle joint crease right side leg.
Incised wound 2 cm x 0.3 cm x bone deep 3 cm above        injury 13.
Incised wound 1.5 cm x 0.3 cm x bone deep 0.5 cm medial        and slightly above injury no.14.
Incised wound 2 cm x 0.5 cm x bone deep x 1 cm above        injury 14.
Incised wound 1 cm x 0.1 cm x muscle deep 4 cm above
       ankle joint crease slightly lateral to midline on right side leg. 18. Bruise 1 cm x 1 cm above 10 cm about 10 cm above
ankle        joint crease anterior surface of right leg.
Bruise 1.5 cm x 0.5 cm ; 9 cm below knee joint lower border        on anterior surface lateral part of right shin bone.
Bruise 6.5 cm x 2 cm x above medial maelleolus right leg. 21. Extensive bruising in almost whole of right leg anterior       Â
surface and both side border.
Extensive Bruising in area 30 cm x 9 cm x medial surface of        right thigh and upper part of knee joint medially.
Bruise 15 cm x 1.5 cm medial surface middle part of left        thigh.
Diffuse swelling left hand dorsal aspect with extensive        bruising.
Extensive bruising in area 30 cm x whole of back of left        forearm and lower part of left arm including elbow joint. 26.
Incised wound 2 cm x 0.5 cm x bone deep 4 cm above and        lateral to elbow crease on posterior part of left arm.
Incised wound 1 cm x 0.5 cm x bone deep back of left elbow. 28. Incised wound 2 cm x 0.5 cm x bone deep posterior surface      Â
middle part 3 cm below elbow crease with broken end of         ulna bone seen covering out of wound on 1 forearm.
Shortening and deformity of left forearm with fracture of        both bones radius and ulna upper 1/3 part.
Abrasion 1.5 cm x 0.5 cm back of left shoulder upper part.
Abrasion 8 cm x 1 cm on right clavicle medial part.
Multiple abrasions 1.5 cm x 0.5 cm to 1 cm x 0.5 cm in area        5 cm x 2 cm above injury no.31 right side neck lower part.
Multiple abrasions 1.5 cm x 0.5 cm to 1 cm x 0.5 cm in area        9 cm x 4 cm on upper outer part of right side neck.
Abrasion 3 cm x 1 cm below right ear pinnae on right angle        of mandible.
Abrasion 5 cm x 0.5 cm on right cheek in between right        angle of mouth and mandible.
Abrasion 4 cm x 1 cm on right cheek in front of right ear        pinnae middle part.
Bruise 3 5. cm x 1.5 cm on right cheek outer to right alau       nasail.
Diffuse swelling with bruising on entire surface of nose with        fracture of nasal bone middle part.
Diffuse swelling of left side cheek below left eye at middle       part level of nose.
Multiple abrasions 1 cm x 0.5 cm to 0.5 cm x 0.5 cm in area        7 cm x 5 cm left lateral border upper part of neck.
Bruise 4 cm x 1 cm below left ear pinnae at angle of        mandible .
Bruise 5 cm x 2 cm anterior surface right shoulder.
Bruise 4 cm x 2 cm right side forehead above outer part of        eye brow.
Abrasion 0.5 cm x 0.5 cm left side forehead above middle        part of eye brow.
Multiple abrasions 1.5 cm x 0.5 cm to 0.5 cm x 0.5 cm        middle of neck in midline upper part.
Lacerated wound 6 cm x 1 cm x bone deep left side frontal        region of skull.
Swelling whole of the upper lip.â€
Following ante mortem fractures were found:
Fracture of both leg bones tibia and fibula upper half on left        side.
Fracture of both fore arm bones radius and ulna upper 1/3Â Â Â Â Â Â Â Â part.
Fracture of nasal bone.
The cause of death was opined to be head injury i.e. injury no.46.
Indisputably, the injuries were inflicted on the person of the deceased by axe and sticks by the appellants herein. P.W.1-Dr. Alok Bhati in his
deposition has confirmed the injuries sustained by the victim as also the cause of death. Thus, the death of Rajiram was concededly homicidal in
nature.
The only question which comes for consideration of this court in the present appeals is whether on the facts and in the circumstances of the case
wherein the incident has occurred, the injuries caused by the accused appellants on the person of the deceased Rajiram leading to his death, can be
said to be an act of the accused appellants constituting culpable homicide not amounting to murder and the conviction of appellants by the trial court
under Section 302/149 & 148 IPC deserves to be altered to Section 304 Part-I or Part II or 304 Part-I or Part II/34 IPC or they deserve to be held
guilty only for voluntarily causing grievous hurt to the deceased.
Indubitably, the prosecution story rests on deposition of eye witnesses Shyamlal, Hira Devi, Nathuram and Ramlal, who were examined during the
separate trials of the accused persons Mahaveer Prasad & Sheoprakash in Sessions Case No.67/02 and Shiv Narayan and Dilaver Singh in Sessions
Case No.69/03. There is no substantial variance in deposition of the said eye witnesses examined in two separate trials and therefore, the depositions
of the witnesses during the trial in Sessions Case No.69/03 are taken into consideration.
As per the prosecution, on the fateful day, P.W.3-Shyamlal and deceased Rajiram were engaged in wood work at the residence of Jagdish
Kasaniya. As per deposition of P.W.3Shyamlal, around 6-6.30 P.M. when they were still at work, Sheoprakash, the younger brother of Jagdish
Kasaniya, who was under intoxication of liquor, came there and indulged in altercations with Rajiram and slapped him. He (Shyamlal) complained to
Jagdish, regarding the treatment meted out to them at his residence, Jagdish got Sheoprakash out from his house. When Rajiram came out of
Jagdish’s house with his saw and hammer, Sheoprakash caught hold of his neck and started belabouring him. In the meantime, Mahaveer Kumhar
also reached there. Sheoprakash attempted to snatch Rajiram’s saw, got hold of its sharp edged side and for this reason, his hand was injured.
Rajiram while leaving saw and hammer behind rushed towards his house. Sheoprakash and Mahaveer chased Rajiram. He (Shyamlal) went to
Jagdish’s house but he was not at home. When he was returning from Jagdish’s house, Shiv Narayan was standing in front of
Nathuram’s house. Sheoprakash and Mahaveer brought Jagdish in front of Nathuram’s house. Thereafter, Sheoprakash, Mahaveer and Shiv
Narayan started belabouring Rajiram. On hue and cry being raised, Nathuram, Kaluram and Rajiram’s wife also reached there. When
Rajiram’s wife attempted to rescue Rajiram, Sheoprakash inflicted stick blow on the head of Rajiram’s wife and Shiv Narayan hit her by fist
blow on stomach. She became unconscious and fell down. He, Kaluram and Nathuram requested accused persons not to beat Rajiram but to no avail.
Rajiram was taken to open area (bakhal) of Jagdish’s house. Kuldeep @ Chindra, Pawan and Dilaver also reached there. Sheoprakash was
armed with axe, Mahaveer, Pawan, Chindra, Shiv Narayan and Dilaver were armed with sticks. All the six persons belaboured Rajiram with axe and
sticks for 1/2-3/4 hour. Shiv Prakash with axe and other with sticks belaboured Rajiram. 50-60 villagers assembled there. They requested accused
persons to set free Rajiram, however, Sheoprakash threatened that “if anybody comes forward, he will be shotâ€. Whenever Rajiram fell
unconscious, the accused persons poured water over him and on his regaining consciousness, he was belaboured again and again. On the crowd
assembled raising noise regarding police coming on the spot, the accused persons fled away. Rajiram, who was alive, was taken to the hospital in
police jeep. Ramlal and Kaluram accompanied the police.
In cross examination, he expressed his inability to specifically indicate the overt acts on the part of the accused persons in belabouring deceased
Rajiram. He denied the suggestion of the defence that during the altercation Rajiram inflicted injury on the hand of Sheoprakash with saw.
P.W.4-Ramlal deposed that around 6.30-6.45 P.M., he and his wife Hira Devi were at home. At that time, Rajiram rushed to their house and
while saying that Sheoprakash and Mahaveer are belabouring him, requested his wife Heera Devi to rescue him. Sheoprakash and Mahaveer while
chasing Rajiram entered their house. Sheoprakash’s hand was injured and blood was oozing out. They took away Rajiram in front of
Nathuram’s house. While coming out of the house, he saw that Shiv Narayan was standing there armed with a stick. On his raising hue and cry,
Rajiram’s brother Kaluram, Nathuram, Shyamlal and Rajiram’s wife also reached there. Rajiram’s wife attempted to rescue Rajiram,
then, Sheoprakash while snatching the stick from the hands of Shiv Narayan inflicted a blow on head of Rajiram’s wife. Shiv Narayan gave a fist
blow on stomach of Rajiram’s wife. She became unconscious and fell down. All the three accused Sheoprakash, Mahaveer and Shiv Narayan
belaboured Rajiram with the slaps and fists in front of Nathuram’s house. Thereafter, Rajiram was taken to open area in Jagdish’s house.
Pawan, Chindra and Dilaver also reached there. Sheoprakash picked up an axe and others picked up sticks. All the accused persons belaboured
Rajiram with axe and sticks. He, Kaluram, Nathuram and Shyamlal requested the accused persons not to beat Rajiram but to no avail. In the
meantime, someone made a noise that police has arrived. Rajiram and Sheoprakash were taken to the hospital by police. He and Kaluram
accompanied them to the hospital.
In cross-examination, he deposed that he had seen the incident occurred in open area of Jagdish’s house from a distance of about half bigha. He
categorically deposed that he is not in position to indicate as to which accused caused injury to which part of the body of the deceased Rajiram.Â
P.W.5-Heera Devi, the wife of complainant P.W.4-Ramlal and mother of P.W.2-Shyamlal, deposed that Rajiram rushed to her house, wrapped
around her and requested to rescue him saying that Mahaveer and Sheoprakash will belaboured him. At that time, Mahaveer and Sheoprakash
reached there and took away Rajiram. They (husband and wife) attempted to rescue Rajiram but they were not ready to spare him. Rajiram was
taken in front of Nathuram’s house where Shiv Narayan was standing armed with a stick. On their making the noise, Nathuram, Kaluram and
Rajiram’s wife also reached there. When Rajiram’s wife attempted to rescue Rajiram, Sheoprakash while snatching the stick from the hands
of Shiv Narayan, inflicted a blow on the head of Rajiram’s wife. Shiv Narayan gave a fist blow on the stomach of Rajiram’s wife, who
became unconscious and fell down. Sheoprakash, Mahaveer and Shiv Narayan took away Rajiram to open area in Jagdish’s house. Dilaver,
Pawan and Chindra also accompanied them. All the five(six) accused persons, belaboured Rajiram, which she couldn’t bear and returned to her
home. The blood was oozing out of the hand of Sheoprakash and on that account her kurta and wall of her house got blood stained. The blood stained
kurta was seized by the police.
In cross-examination, she deposed that when Rajiram was taken from her house, no blood was oozing out of his body. When the attention of the
witness was drawn to her earlier statement, she categorically deposed that the statement made by her that she had not seen the accused persons
belabouring deceased Rajiram in open area of Jagdish’s house, is correct.
P.W.6-Nathuram deposed that Sheoprakash and Mahaveer lifted Rajiram from Ramlal’s house and brought him in front of his house, Shiv
Narayan and Rajiram’s wife also reached there. Sheoprakash, Mahaveer and Shiv Narayan started belabouring Rajiram. Rajiram’s wife
attempted to rescue him, thereupon, Sheoprakash inflicted a stick blow on her head and Shiv Narayan gave a fist blow on her stomach. Rajiram’s
wife fell unconscious. Rajiram was taken to the open area in Jagdish’s house. Pawan, Dilaver and Chindra also reached there. Thereafter,
Sheoprakash, Mahaveer, Shiv Prakash, Dilaver, Chindra and Pawan in the first instance belaboured Rajiram with slaps and fists. Thereafter, they
lifted sticks lying there, Sheoprakash lifted an axe then said he does not know from where the axe was picked up. Accused persons started
belabouring Rajiram with axe and sticks. As a result of beating, as and when Rajiram fell unconscious, after pouring the water they would again start
beating him. When they attempted to rescue him, Sheoprakash threatened to shot us. When the accused persons were belabouring Rajiram, he
deposed that he was there near the open area. After quite some time, when the police reached there, the accused persons leaving the Rajiram behind,
fled away. Rajiram was still alive, he was taken to the hospital by Ramlal and Kaluram with the help of the police.
In cross-examination, he deposed that at the time when Sheoprakash and Mahaveer lifted Rajiram, they were not armed with any weapon. At the
time of Sheoprakash inflicting stick blow on Kamla, Rajiram was caught hold of by Mahaveer. In the open area in Jagdish’s house, Rajiram
was belaboured for 1/2â€"3/4 hour. He had witnessed the incident while standing in front of his house. When Rajiram was brought in front of his
house, Sheoprakash was injured and blood was oozing out of his hand. In the midst of the beating, Sheoprakash leaving Rajiram behind had gone to
pick up the axe. However, on the attention of the said witness being drawn to his deposition in examination-in-chief, he said that he does not know
from where Sheoprakash had picked up the axe. Â
As per the deposition of the eye witnesses, in the first instance, accused Sheoprakash indulged in altercation with deceased Rajiram and slapped
him at Jagdish Kasaniya’s house. Rajiram left the house of Jagdish with his saw and hammer, however, Sheoprakash followed him, caught hold of
his neck and started belabouring him. Sheoprakash attempted to snatch Rajiram saw, got hold of its sharp edged side and for this reason, his palm was
injured. Rajiram while leaving saw and hammer behind, rushed towards his house but entered Ramlal’s house and wrapped around Ramlal’s
wife Heera Devi and requested her to rescue him. Sheoprakash and Mahaveer chased Rajiram, entered Ramlal’s house, lifted Rajiram, brought
him in front of Nathuram’s house, where Shiv Narayan was standing armed with stick. Sheoprakash, Mahaveer and Shiv Narayan started
belabouring Rajiram with slaps and fists. On Rajiram’s wife intervening to rescue her husband, Sheoprakash inflicted a blow on the head of
Rajiram’s wife with stick and Shiv Narayan gave a fist blow on her stomach. Sheoprakash, Mahaveer and Shiv Narayan took away Rajiram to
open area in Jagdish’s house where Sheoprakash, Mahaveer, Shiv Narayan, Dilaver, Pawan and Chindra, all the six persons, belaboured Rajiram
with axe and sticks. Sheoprakash was armed with axe whereas other accused persons with sticks. Rajiram was belaboured by the accused persons
for about 1/2-3/4 hour.
It is pertinent to note that as per the deposition of the eye witnesses, in the first instance at the residence of Jagdish Kasaniya and thereafter while
proceeding to his home, Rajiram was beaten by the accused Sheoprakash by slaps and fists. Even in front of Nathuram’s house, he was beaten by
Sheoprakash,
Mahaveer Prasad and Shiv Narayan with slaps and fists. It is only after they reached to the open area in Jagdish’s house, the deceased Rajiram
was belaboured with axe and sticks. Thus, most of the injuries found on the person of the deceased Rajiram including the injury which found fatal,
were apparently inflicted by the accused persons in the open area of Jagdish’s house. On the basis of the deposition of the eye witnesses,
deceased Rajiram was belaboured by the accused persons in the open area of Jagdish’s house for about 1/2-3/4 hour with axe and sticks. As per
the post mortem report, as many as 47 injuries were caused to the person of the deceased, which includes the fatal blow on the skull. A look at the
nature of injuries inflicted which includes the fatal blow on the skull, many incised wounds and 5 fractures, clearly reflects that the accused persons
have acted in most cruel manner. The eye witnesses have categorically deposed that during the beating whenever Rajiram fell unconscious, the
accused persons poured water over him and on his regaining consciousness, continued to beat him. Thus, apparently, the accused persons had
intention of causing such bodily injuries knowing to be likely to cause death. That apart, the head injury caused to the person of the deceased was
found sufficient in ordinary course of nature to cause death and thus, they cannot plead that they had no intention to cause a bodily injury sufficient in
ordinary course of nature to cause death.
In Sheik Rafi vs. State of Andhra Pradesh and Ors., 2007 Cr.L.J.2746, where 19 injuries were caused in a quick succession particularly when
deceased was unarmed and in a helpless situation, the Hon’ble Supreme Court observed that the same cannot be said to have been caused as a
result of grave and sudden provocation and held that it is sufficient to indicate that proviso “Thirdly†to Section 300 is attracted in the case.
It is contended by the learned counsel appearing for the appellants that the appellants are entitled for the benefits of Exception 4 to Section 300.
Undoubtedly, the culpable homicide is not murder, if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel
provided the offender has not taken undue advantage or acted in a cruel or unusual manner. But then, in the instant case, the act of the accused
persons in belabouring deceased Rajiram in the open area of Jagdish’s house, which was preceded by three consecutive incidents of beating;
firstly at the residence of Jagdish after altercations, secondly, when deceased Rajiram was proceeding to his home from Jagdish’s house and
thirdly, in front of Nathuram’s house, cannot be said to be an act committed under sudden provocation without premeditation in sudden fight in the
heat of passion upon a sudden quarrel. Apparently, the accused persons have acted in most cruel manner inasmuch as, the deceased who was
unarmed was belaboured by the accused persons with axe and sticks and as many as 47 injuries which include the fatal blow on the skull, number of
incised wounds and 5 fractures were inflicted on the person of the deceased mercilessly. The cruelty on the part of accused persons further stands
aggravated inasmuch as, during the beating, as and when the deceased Rajiram fell unconscious, the accused persons poured water over him and
when he regained consciousness, he was again belaboured. In this view of the matter, in our considered opinion the case of the appellants does not fall
within Exception 4 of Section 300 IPC.
Indisputably, two accused namely, Pawan and Chindra have been acquitted by the Juvenile Justice Board treating them to be not the member of
unlawful assembly involved in belabouring the deceased Rajiram and thus, the appellants herein who are four in number cannot be convicted taking aid
of Section 149 IPC. Further, to convict the accused appellants for an independent charge under Section 302 IPC, the court must reach to the
conclusion that the injury inflicted by the accused appellant individually were sufficient in ordinary course of nature to cause death and the nature of
injuries was homicidal else, they cannot be convicted for offence under Section 302 IPC. But if the injuries caused are sufficient in ordinary course of
nature and they were caused in furtherance of common intention, each and every individual propagating the common intention can be convicted under
Section 302 read with Section 34 IPC although he has not been charged under Section 34 IPC and has been charged under Section 149 alongwith
Section 302 IPC.
In Karnail Singh and Ors. vs. The State of Punjab, AIR 1954 SC 204, the Hon’ble Supreme Court while dealing with the difference between
the Section 34 and Section 149 IPC, observed:
“8. It is true that there is substantial difference between the two sections but as observed by Lord Sumner in Barendra Kumar Ghosh v. Emperor
I.L.R. 52 Cal. 197, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under section
149 overlaps the ground covered by section 34. If the common object which is the subject-matter of the charge under section 149 does not necessarily
involve a common intention, then the substitution of section 34 for section 149 might result in prejudice to the accused and ought not therefore to be
permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under section 149 would be the same if the
charge were under section 34, then the failure to charge the accused under section 34 could not result in any prejudice and in such cases the
substitution of section 34 for section 149 must be held to be a formal matter. We do into read the observations in Dalip Singh v. State of Punjab
[1954]1SCR145 as an authority for the broad proposition that in law there could be no recourse to section 34 when the charge is only under section
Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this court in
Lachhman Singh v. The State, 1952 CriLJ 863, where the substitution of section 34 for section 149 was upheld on the ground that the facts were such
that the accused could have been charged alternatively either under section 302 read with section 149, or under section 302 read with section 34.
(emphasis added)
In Chittarmal and Ors. vs. State of Rajasthan , AIR 2003 SC 796, the Hon’ble Supreme Court while dealing with the identical issue,
observed:
“14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious
liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as shares in an offence. Thus they
have a certain resemblance and may to some extent overlap.
But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily
postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior
meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question
to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons
numbering five or more, do an act and intend to do it, both Sections 34 and Section 149 may apply. If the common object does not necessarily involve
a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought nor, therefore, to be
permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal mater. Whether
such recourse can be had or not must depend on the facts of each case. The non applicability of Section 149 is, therefore, no bar in convicting the
appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of
them all. (See Barendra Kumar Ghosh v. King Emperor, I.L.R. 52 Cal. 197, Mannam Venkatadari and Ors. v. State of Andhra Pradesh, 1971
Cri LJ 1145, Nethala Pothuraju and Ors. v. State of Andhra Pradesh, 1991 Cri LJ 3133 and Ram Tahal and Ors. v. State of U.P.,1972 Cri LJ 227).â€
(Emphasis added)
In Dhaneswar Mahakud and Ors. vs. State of Orissa , AIR 2006 SC 1727, the Hon’ble Supreme Court while relying upon inter alia the
decision in Chittarmal’s case (supra), observed:
“13. It is apparent from the decisions rendered by this Court that there is no bar on conviction of the accusedappellants with the aid of Section 34
IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no
apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149.â€
In Birbal Choudhary vs. State of Bihar, AIR 2017 SC 4866, the Hon’ble Supreme Court while relying upon various earlier decisions including
Chittarmal’s case (supra), observed:
“49. There cannot be any quarrel about the law laid down in the aforesaid judgments where subtle distinction is drawn between Section 34 and
Section 149, Indian Penal Code which deal with ‘common intention’ and ‘common object’ respectively. At the same time, it is also
clarified that it would depend on the facts of each case as to whether Section 34 or Section 149 of Indian Penal Code or both the provisions are
attracted. It is also held that nonapplicability of Section 149 Indian Penal Code is no bar in convicting the Accused persons Under Section 302 Indian
Penal Code read with Section 34 of Indian Penal Code, if the evidence discloses commission of offence in furtherance of common intention of them
all. From the facts of the present case, we are satisfied that the courts below have rightly concluded that there was a common intention in committing
the offence of kidnapping for ransom, by all the convicted persons.â€
In the backdrop of settled position of law discussed as above, adverting to the facts and circumstances of the present case, it is not in dispute that
the injury which proved fatal was not specifically attributed to either of the accused. But then, the deceased Rajiram who had already been beaten
thrice at the different places in consecutive succession, was taken to open area by the accused appellants sharing the common intention to belabour
him and in furtherance of the common intention, they belaboured Rajiram severely and caused 47 injuries in succession including the injury on the skull
which is found fatal. Thus, the appellants sharing the common intention having caused such bodily injuries knowing fully well that it is likely to cause
death and having inflicted an injury sufficient to cause death in ordinary course of nature deserve to be convicted for offence under Section 302 read
with Section 34 IPC.
In the result, the conviction of the appellants Mahaveer Prasad, Sheoprakash, Shiv Narayan and Dilaver Singh for offence under Section 302/149
IPC is altered to Section 302 read with Section 34 IPC and accordingly, the sentence of life imprisonment with fine of Rs.1,000/-; in default of
payment of fine to further undergo one year simple imprisonment awarded by the learned trial Judge, is maintained.
The conviction of the appellants Mahaveer Prasad, Sheoprakash, Shiv Narayan and Dilaver Singh for offence under Section 148 IPC and sentence
awarded by the trial Judge is set aside and they are acquitted of the charge for the said offence.
The conviction of the appellants Sheoprakash and Mahaveer Prasad for offences under Sections 449, 364, 342, 323 & 324 IPC and the sentence
awarded by the trial Judge, which is not questioned by the appellants before this court, is maintained. The conviction and sentence of the appellant
Sheoprakash for offence under Section 341 IPC is also maintained.
The appellant Dilaver Singh who is on bail, shall surrender and/or shall be taken into custody to serve out the remaining sentence.
The appeals stand disposed of accordingly.