1. The appellants were convicted under the second part of Section 304 read with Section 35, I.P.C. and each one of them was sentenced to undergo rigorous imprisonment for 5 years in Sessions Cas3 No. 69 of 1958 on the file of the learned Sessions Judge, Bijapur.
2. The facts of this case can be briefly stated thus:
3. P.W. 18 Dundappa was cultivating R. S. No. 26/3 of Shambappa Ukli A-l Mallappa was the son-in-law and A-2 Kallappa was the nephew of P.W. 18; P.W. 18 had grown Javar crop in R. S. No. 26/3; the year 1958 was a near-famine year; therefore, there used to be lot of thefts in the village; with a view to protect the crop, P. W, 18 detailed the two accused to keep watch over the Javar crop in R. S. No. 26/3; on the night of the occurrence, i.e., 4-1-1958, the two accused were sleeping in the field in question; at about midnight, they found somebody stealing the Javar crop; it was quite dark at that time; the accused somehow managed to catch hold of the thief and gave him a good beating; later on the injured was put in a cart and brought to the village, where he subsequently died.
4. At this stage itself, it may be mentioned that it is not the. prosecution case that the accused had any enmity with the deceased Dhareppa. It is not clear from the records whether they even knew him beforehand. The thrashing given to Dhareppa was solely because of the fact that he was stealing the Javar crop from the field in question.
5. Dhareppa had sustained numerous injuries. From the post-mortem notes, Ext. 39, it is seen that the injured had sustained as many as 15 injuries, all of which were contusions. His liver had been ruptured and several fractures had been caused. According to the Doctor, P.W. 19 Krishnarad, the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death.
6. There ore no eye-witnesses to the occurrence. The evidence against the accused solely rests on the dying declarations said to have been made by the injured, the extra-judicial confessions said to have been given by the accused and the recoveries said to have been made on the basis of the information given by the accused after their arrest.
7. As mentioned earlier, the injured did not die immediately. He lived for several hours after sustaining the injuries. We have it from the evidence of P.W. 10 Mudagonda, Village Patil of Madanamatti, that on the early morning of 4-1-1958 P.W. 18 went and informed him that the accused had caught hold of a thief in the Javar field and had beaten him; he also told him that the injured had been brought to the village and that he was lying in the Basavanna temple. P.W. 10 did not record his complaint but asked him to report the matter to the Patil of Hour within whose jurisdiction the incident had taken place. There is also evidence to show that P.W. 18 went and brought P.W. 2 Mohadin a bone-setter to set the bones of the injured but P.W. 2 found that the fractures were so many that it was not possible to set the bones.
The village Patil of Hour speaks in corroboration of the version given by P.W. 10. The first information in this case was laid by P. W. 18 at the police station, Jamkhandi and the same is marked as Ext. 35. That information is in accordance with the evidence given by P.W. 10. Though P,W. 18 deposed in accordance with the version given in the first information in the Committal Court he turned hostile to the prosecution in the trial Court. Therefore, his evidence in the committal court was marked under Section 288, Cr. P.C. (Ex. 37). No doubt that neither the evidence of P.W. 18 nor the first information given can be considered as evidence against the accused. P. W. 18 was not an eyewitness to the occurrence. Hence, any information given by him must be considered as hearsay evidence. But if we bear in mind the fact that P.W. is the father-in-law of A-l and the uncle of A-2, the present version of the prosecution is probabilised.
8. P.W. 2 Saidu Cuddadmani P.W, 3 Kadappa and P.W. 5 Sangappa speak about the dying declarations given by deceased Dhareppa. Each one of them says that the injured told him at the Basavanna temple that he had been beaten by the accused. These witnesses are not shown to be inimically disposed towards the accused. In our view, lull reliance can be placed on the evidence of these witnesses. In addition to the evidence relating to the dying declarations we have the evidence of P.W. 6 Jinnappa and P.W. 7 Kenchappa who speak to the fact that both the accused told them that they caught Dhareppa in their field while he was stealing the Javar crop and that they beat him. P.Ws. 6 and 7 are neighbours of the accused.
The relationship between the accused and P.Ws. 6 and 7 appears to have been quite cordial. These witnesses had no reason to falsely implicate the accused in a criminal case. The surrounding circumstances in this case make it abundantly clear that the deceased Dhareppa was beaten by the accused and as a result of the injuries sustained by him, he died.
9. Sri Reddy, the learned counsel for the appellants strenuously contended that the deceased was a common thief; his activities were greatly resented by the villagers; therefore, it was quite likely that he was beaten by the villagers when he was brought to Basavanna's temple. No support is available for this contention from the evidence on record. There is not even an iota of evidence to show that any one other than the accused beat the deceased either at the time of the occurrence or subsequently. Therefore, We have to proceed on the basis that for all the injuries found on the deceased the two accused have to be held responsible.
10. But the real difficulty in this case arises when we come to consider as to what exactly is the offence committed by the accused. The accused were not charged under the second part of Section 304 read with Section 34, I.P.C. It was not the prosecution case, and it is not the prosecution case even now that the two accused before the court attacked the deceased in pursuance of their common intention to murder him. They could not have had any intention to kill the deceased. The common intention which they would have had was only to catch the thief and probably to thrash him. In the very nature of things they could not have entertained any intention to murder the thief. The charge framed against accused reads:
That you on or about the 4th day of January 1958, at about 3 to 4 A.M. in R. S. No. 26/3 of village Hour, has committed culpable homicide not amounting to murder by causing the death of Dhareppa Chinnappa Dhar of Shegunashi by beating him with sticks and causing him injuries 'with the knowledge that they may cause death, but without any intention of causing his death' and thereby committed an offence punishable under Section 304, Part II, read with Section 35 of the Indian Penal Code and within the cognizance of the Court of Sessions, Bijapur.
Hence it is clear that even according to the prosecution, the accused had no common intention to kill the deceased. We may also mention at this stage that the accused at best could have been armed with only sticks. But we do not have any positive evidence to show that both the accused were armed with sticks. Of course one or the other or possibly both, must have been armed, with sticks because most of the injuries found on the person of the deceased were likely to have been caused by beating with sticks. The evidence to which we have earlier made reference, only indicates that both the accused had joined in the beating.
It by no means shows that both the accused beat the deceased with sticks. Nor is there any evidence to show as to how many blows each one of the accused gave to the deceased. In order to establish a common intention the prosecution has to adduce either evidence aliened disclosing a prior concert or the intention in question must be gather-able from the acts committed by the accused. In the instant case, there is no evidence to show that there was any prior concert. Equally there is no evidence to show in what manner the two accused participated in the attack. Barring the fact that both of them beat the deceased, there is absolutely no other evidence. Hence, rightly, the court below ruled out the application of Section 34, I.P.C.
11. We do not think that on the facts proved in this case, Section 35, I.P.C. could be applied. That provision is applicable to a case where a number of persons join in an act which is criminal only by reason of its being done with a certain knowledge or intention. In order to apply Section 35, I. P. C to the present case, it is necessary for the prosecution to prove that the two accused having similar criminal intention or knowledge jointly committed the murder of the deceased. We do not think that the facts of this case can give rise to such an inference.
In our judgment, the more appropriate section applicable to the facts of the present case is Section 38, I.P.C. which says that where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act Hence, we can only hold each of the accused responsible for the individual acts committed by him. The scope of Section 38, I.P.C. came up for consideration before the Lahore High Court in Sultan v. Emperor AIR 1931 Lah 749. A Bench of that Court laid down that -
Section 38, which is the converse of Section 34 provides for different punishments for different offences where several persons are concerned in the commission of a criminal act whether such persons are actuated by the one intention or the other.
Sri Santosh, the learned Government Pleader drew our attention to the ratio of the decision in Kripal v. State of U.P. : AIR1954SC706 . In that case a joint attack was made by three accused on a particular person; one of the assailants had a spear in his hand and others had only sticks the evidence was insufficient to show that the three accused had the common intention of murdering the deceased; but that evidence was sufficient to hold that they had a common intention to cause grieves hurt to the deceased though one of them was guilty of murdering the deceased. We fail to see how the decision in question can lend us any assistance.
As mentioned previously, there is absolutely no evidence in this case to show as to how the incident took place, or even whether both the accused were armed with sticks. Therefore, the only conclusion which we can safely arrive at is that both the accused were guilty of causing hurt to the deceased Dhareppa, which means we can only convict them under Section 323, I.P.C.
12. For the foregoing reasons, we modify the conviction of the appellants and convict each one of them under Section 323, I.P.C. and sentence them to suffer rigorous imprisonment for one year. Subject to this modification, the appeal is dismissed. The appellants are on bail. They shall surrender to their bail and serve the remaining portion of the sentence.