1. This is an appeal by four persons - Bishunath Tewari, Brij Bhukan, Lochan and Harakh Narain Tewari - who have been convicted by the learned Second Additional Sessions Judge at Gorakhpur of two offences, one under Section 304 read with Section 34 and the other under Section 323, Penal Code. The charge framed against the appellants by the learned Committing Magistrate ran as follows:
That you on or about the 14th day of June 1944 in the afternoon in village Subedar Pur in P.C. Maharaj Ganj to the south of the Chhaoni committed culpable homicide not amounting to murder by causing the death of Balai Ahir deceased by voluntarily causing injuries with lathis on his head and thereby committed an offence punishable under Section 304, Penal Code.
When the case came up for trial in the Court of Session, this charge was amended by the addition of the following words at the end, that is, after the word 'head,' namely,
which were likely to cause his death and caused simple hurt to Day a Ram and Kalpu.
It will be noticed at once that there is no reference at all in this charge to Section 34, Penal Code. There is no suggestion in the charge, as it is framed, that the offence or offences were committed by the accused persons in furtherance of the common intention of all. The charge relates to the death of one Balai Ahir, who was a resident of village Talhi. It appears, however, that he had a large amount of pahi cultivation in the neighbouring village of Subedar Pur and the prosecution evidence clearly suggests, and I think the point has been proved, that the deceased and his family had their houses in village Subedar Pur and very often lived there. The prosecution case is that the deceased had built a house quite close to his fields some twenty or twenty-two years ago, but that house fell down about eight or ten years ago, whereupon the deceased erected three huts in place of the house. These huts were also burnt down sometime later and on the date on which the alleged offence is said to have been committed, that is, 14th June 1944, the deceased, his brother Kalpu and his nephew Daya Ram were engaged in putting up thatched huts on the very site on which the old huts existed. Balai deceased was actually digging holes in the ground in order to fix poles therein for supporting the thatched roof, while poles and beams were being brought by Daya Ram and Kalpu. This, according to the prosecution case, was taking place sometime in the afternoon. While the deceased and his two companions were thus engaged the four appellants are said to have come there all armed with lathis. Three of the appellants, namely, Bishunath, Brij Bhukhan and Harakh Narain, are zamindars of village Subedar Pur, while Lochan appellant is said to be their sipahi.
2. What happened then is to be gathered from he evidence of five witnesses examined by the prosecution, namely, Daya Ram, Kalpu, Sahtu, Ishaq and Tameshar. The story which emerges from this evidence is that while Balai deceased and his two companions were engaged in erecting the huta the four appellants came up armed with lathis and an altercation first ensued between the appellant Bishunath Tewari and the deceased Balai. The appellant asked the deceased to stop digging, whereupon the latter said that the land formed part of the site of his house and he was, therefore, entitled to dig the ground for fixing poles in order to erect his huts. There is some discrepancy in the prosecution evidence at this stage. Some witnesses state that the appellant Bishunath Tewari came first of all and the other three appellants followed him sometime later. Other witnesses say that all the appellants came in a body. The story is, however, unanimous that the four appellants came together at the spot and all of them were armed with lathis. When Balai deceased asserted his right to the land which he was digging, the appellant Bishunath Tewari was annoyed and it is said that he asked his companions to give the deceased a hammering. Now, two of the prosecution witnesses clearly state that it was the appellant Bishunath Tewari himself who delivered the first blow which fell upon the deceased's head. Two out of the remaining three witnesses are equally clear that all the four appellants set upon the deceased at once and. began beating him. One witness says that he saw the appellant Bishunath Tewari delivering the first blow, but he could not say where that blow took effect upon the deceased's body. All the witnesses are, however, agreed in stating that the deceased fell down and became unconscious. His two companions, Daya Ram and Kalpu, were coming from their field to the spot with beams and other materials for erecting the huts and they saw Balai deceased being beaten by the appellants, whereupon they ran to the spot and remonstrated with the assailants with the result that they were also beaten. (After discussing the evidence his Lordship proceeded.) It was suggested on behalf of the defence that the appellants had a right of private defence, inasmuch as Balai deceased and the prosecution witnesses Daya Ram and Kalpu were committing criminal trespass upon a piece of land belonging to the appellants zamindars. In the first place, it has been found by the learned Second Additional Sessions Judge, and with that finding I agree, that some huts belonging to Balai deceased and the prosecution witnesses Daya Ram and Kalpu existed on the spot previously and it was only on that site that the deceased and his two relations were trying to raise new huts. This strikes at the very root of the plea of private defence sought to be raised on behalf of the appellants. In any case, there could be no question of the right of private defence in the circumstances before us, because it is evident that the appellants, four in number, were all armed, while the deceased Balai had according to the defence case itself, nothing but a khanti in his hand with which he was digging a hole in the ground at the time. The defence has no doubt suggested that a lathi was lying conveniently near him and he picked up that lathi and attacked the appellant Brij Bhukan 'with it. That is in my judgment manifestly untrue. If the four appellants wanted to prevent Balai deceased, they could have done so without resorting to any force. I am, therefore, satisfied upon the evidence that Balai deceased and the prosecution witnesses Daya Ram and Kalpu were attacked and injured by the four appellants in the circumstances alleged by the prosecution.
3. The question, however, remains : What was the offence committed by each one of the appellants in the circumstances of the present case? I have already stated in the opening of my judgment that there was a vital omission to frame a charge under Section 34, Penal Code. Where the prosecution invokes the aid of Section 34, Penal Code, for holding one person responsible for the result produced by the act of another, it is in my judgment necessary to frame a charge under that section. Omission to do so is in my opinion a vital defect and the result is that the man can be held responsible only for the result of an act committed by himself. Besides this technical point, I find that the circumstances of the case as established by the prosecution evidence did not justify the application of Section 34, Penal Code. The application of this section was the subject of consideration by their Lordships of the Privy Council in Mahbub Shah v. Emperor . Their Lordships laid down the principle governing the application of Section 34, in the following terms:
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say 'the common intentions of all' nor does it say 'an intention common to all.' Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in (furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the 'criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a prearranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.
Applying this principle to the facts of the present case, I find that Section 84 could not be brought into operation. As already stated, the prosecution evidence is not quite clear as to whether one of the appellants came first on the scene and the others followed him later on or they all came in a body. In any case, it is evident that there is no justification for holding that there was any concert or pre-arranged plan and the attack on Balai deceased was done in concert pursuant to the pre-arranged plan. In these circumstances each one of the appellants can be held responsible only for the act committed by him and the result produced thereby. I have already pointed out that there are discrepancies in the prosecution evidence as to whether it was the appellant Bishunath alone who caused the fatal injuries on the head of Balai deceased or that all the four appellants attacked the deceased simultaneously, so that it cannot be said who it was who caused the fatal injuries on the head. The prosecution evidence has no doubt sought to connect Bishunath appellant with one of the two injuries on the head but, as already pointed out, even that evidence is not consistent. I am, therefore, of the opinion that none of the four appellants in this case ban be convicted of an offence under Section 304, Penal Code. At the same time I think when four persons simultaneously attack another person with lathis, it can fairly be presumed against every one of them that he had at least the intention of causing grievous hurt. I think, therefore, that each one of the appellants in this case is guilty of an offence under Section 325, Penal Code.
4. The result, therefore, is that I allow this appeal in so far that I alter the conviction of each one of the appellants under Section 304 to one under Section 325 and reduce the sentence imposed upon each one of the appellants from six years to four years' rigorous imprisonment. Their convictions under Section 323, Penal Code, and the sentence of six months' rigorous imprisonment each imposed by the learned Second Additional Sessions Judge will stand. The sentences will run concurrently. The appeal is otherwise dismissed. The appellants, if they are out on bail, must surrender and undergo the unexpired portion of their sentences.