R. Chandra, J.
1. Behari (25), resident of village Koilabia, police station Gola, district Kheri, and Gokul (30), resident of village Bhalliya, police station Gola, district, Kheri, have filed two separate jail appeals against their conviction under Sections 302, 324 and 323 read with Section 34, Indian Penal Code, by the Additional Sessions Judge, Kheri. Chhotey Lal (30), and Chet Ram (25), residents of village Teliya Kunda, police station Gola, district Kheri, have filed a represented appeal (Criminal Appeal No. 280 of 1966) against their conviction in the same trial, for the offences under Sections 302, 324 and 323 read with Section 34, Indian Penal Code. Under Section 302/34, Indian Penal Code, each of them has been awarded life imprisonment. Similarly, under Sections 324 and 323 read with Section 34, Indian Penal Code, each of them has been sentenced to undergo 2 years' and 6 months' rigorous imprisonment, respectively. Since all these appeals arise out of the same trial we propose to dispose them of together. We have heard the learned counsel for Chhotey Lal and Chet Ram appellants and the Assistant Government Advocate, for the State.
2. Dwarka deceased was the brother of Parwan and Suraj Bali. Smt. Savitri is the wife of Suraj Bali. Chhotey Lal and Chet Ram appellants are the brothers of Smt. Bilasa, who was married to Behari. In this manner, Behari appellant is the brother-in-law of Chhotey Lal and Chet Ram Gokul appellant is the husband of Behari's mother's sister.
3. The case for the prosecution in brief was that Smt. Bilasa who was married to Behari was not quite satisfied with her marital life. It was said that she was ill-treated both by her husband, namely, Behari, and his stepmother. So, she deserted Behari and lived with her father. It was alleged that after the death of her father, about four and a half months prior to the occurrence, she started to live with Dwarka deceased (who was a close neighbour of Behari) as his wife.
4. On 11th August, 1965, at about midday, Chhotey Lal, Chet Ram and Gokul visited the house of Dwarka. Chhotey Lal possessed a bhali, Chet Ram was armed with a kanta and Gokul had a lathi. They asked Dwarka to send Smt. Bilasa with them, as it was the month of Sawan but he told them that she could not be sent at that time as there was rush of work in the house, and they could take her away afterwards. Thereupon, the three appellants insisted to take her away even forcibly. In that connection, hot words were exchanged and an altercation took place be tween them. In the meantime, Behari appellant also came out from his house armed with a lathi, and instigated the other appellants to kill him. (The house of Behari was situated immediately towards west of the house oi Dwarka deceased.) So, they all started assaulting Dwarka with the weapons which they possessed. Parwan Lal (Dwarka's youngest brother) was present there from the beginning and when he tried to intervene, he was also attacked. His another brother Suraj Ball, with his wife Smt. Savitri rushed there to the help of the victims, but they too met with the same fate at the hands of the assailants. Some persons from the locality also arrived there and tried to intervene, but they were threatened by Chhotey Lal and others. Thereafter, the appellants fled away and also took with them Smt Bilasa, who was throughout standing at the door and watching the entire incident like a helpless spectator.
5. Parwan Lal took Dwarka, Suraj Bali and Smt. Savitri injured to the hospital. From there he went to the thana where he lodged the report the same day at 6-15 p.m. (The distance of the police station from the scene of occurrence was about five miles.) The case was registered under Sections 308, 324 and 323, Indian Penal Code. Dwarka died in the hospital the next morning at 4-30. On getting information about his death, the case was altered from Section 308 to Section 304, Indian Penal Code. The police took up the investigation. They collected plain and bloodstained earth from the scene of occurrence under the memo. Ext. Ka-3. Bloodstained clothes of the injured persons were also taken into possession under the memos. Exts. Ka-4, Ka-5, Ka-6 and Ka-8. These articles were sent to the Chemical Examiner and the Serologist. They were found stained with human blood, vide reports of the Chemical Examiner and the Serologist, Exts. Ka-28 and Ka-29.
6. Dr. S. B. Lal Saksena examined the injured persons, namely, Dwarka, Suraj Bali, Smt. Savitri and Parwan Lal when they were brought to the hospital. He estimated the duration of the injuries at the time of examination as seven hours. The condition of Dwarka was quite serious, and he was not in a fit state of mind to make a dying declaration. He was not in his complete senses, and the pulse was also very weak. He succumbed to his injuries early next morning. The same doctor also conducted the post-mortem examination on the dead body of Dwarka, on 12th August, 1965 at 8 a.m. He estimated the age of the deceased as about 40 years, and the time since death about three hours. He found the following ante-mortem injuries on the dead body of Dwarka.
(Description of injuries omitted.)
7.The internal examination further revealed extravasation of blood on the under-surface of scalp on left and right side of the head. There was also effusion of blood between the skull and duramater on right and left sides. There was blood on the right and left sides of the brain also. The stomach contained about 8 oz. of whitish fluid. Faecal matter was present in the large intestines. Gall bladder was full.
8. According to the doctor, injuries Nos. 1 to 6, 16 to 19 and 21 had been caused by some sharp-edged weapon like kanta, while injury No, 20 had been inflicted by some sharp pointed weapon like bhali. The rest of the injuries had been caused by some blunt weapon like lathi. Only injuries Nos. 17 and 23 were grievous. In his opinion, the injuries were sufficient in the ordinary course of nature to cause death, and the death had actually occurred on account of shock and coma due to multiple injuries (vide post-mortem report Ext. Ka-27.
9. On 11th August, 1965, at 7 p.m., the doctor examined Suraj Bali, and found the following injuries:--
(Description of injuries omitted.)
10. All the injuries were simple and had been caused by some blunt weapon, except injuries Nos. 1 and 5 which had been inflicted by some sharp-edged weapon like kanta.
11. The same day at 7-10 p.m., the doctor examined Smt. Savitri and found the following injuries;--
(Description of injuries omitted.)
All the injuries were simple. Injuries Nos. 1 and 5 had been caused by some sharp-edged weapon like kanta, and the rest By blunt weapon like lathi.
(Vide the statements of Dr. S. B. Lal Saksena, Exts. Ka-21 and Ka-22.)
12. The Investigating Officer inspected the locality and prepared the site plan Ext. Ka-16. On the night between the 12th and 13th August, 1965, Chhotey Lal and Behari, appellants, were arrested with Smt Bilasa near village Keshvapur, Chet Ram and Gokul, appellants, surrendered in Court on 20th and 21st August, 1965, respectively.
13. Chet Ram also claimed identification from the alleged eye-witnesses of the occurrence. On 5th January, 1986 Shri Shyam Lal Srivastava, Magistrate (P.W. 17), conducted the identification proceedings. Chet Ram was correctly identified by Parwan Lal, Moti and Roopan. The other witnesses, namely Suraj Bali, Smt. Savitri and Kundan could not identify him correctly, vide identification memo, Ext. Ka-20. After completing the investigation, the charge-sheet was submitted.
14. The appellants pleaded 'not guilty' and denied the charges. They attributed their false prosecution to enmity with the police, and further contended that the witnesses were related to Dwarka, deceased. It was also strongly refuted that Chhotey Lal and Behari were arrested with Smt. Bilasa near village Keshvapur, or that they ever took her away from the house of Dwarka in the manner alleged. It was said that they were arrested from their houses but no exact date could begiven. No specific counter-story was put forward, It was vaguely suggested to some of the witnesses that the crime had been committed some time in the night by unknown per-sons. The relationship of Chhotey Lal and Chet Ram with Smt. Bilasa, Behari and Gokul was not disputed.
15. In support of the prosecution case, in all, 17 witnesses including Parwan, Smt. Bilasa, Moti, Kundan, Roopan and Suraj Bali (who claimed to be the eye-witnesses) were examined. The accused did not produce defence.
16. The factum of the occurrence has not been seriously challenged. There is also no dispute about the date, time and place of the incident. It has been conclusively proved from the medical evidence that Dwarka, Par-wan Lal, Suraj Bali and Smt. Savitri had received injuries from lathis, bhali and kanta. Their injuries were examined on 11th August, 1965, between 6-30 p.m. and 7-20 p.m. According to the doctor, the injuries were fresh and were about seven hours old. First infor-mation report in the case was also lodged the same day at 6-15 p.m.
It was further proved that Dwarka who had received 23 injuries on different parts of the body expired in the hospital the next morning at 4-30. All this evidence coupled with the direct testimony of the witnesses satisfactorily proved that the occurrence really took place on 11th August, 1965, some time in mid-day. The venue of the occurrence was further fixed as the earth collected from there was found by the Chemical Examiner and the Serologist stained with human blood. In the circumstances, it was clear that Dwarka did not die a natural death, and was the victim of the murderous assault. In the same incident, Parwan Lal, Suraj Bali and Smt. Savitri also received multiple injuries. The only material question for consideration in the pre-ent appeals is, whether the appellants or any of them took part in the crime.
17. As regards the motive set up by the prosecution, there was not much dispute. Admittedly, Smt. Bilasa was married to Behari appellant. They could not pull on with and only a couple of months prior to the occurrence, she started to live with Dwarka, deceased, as his wife. It was clear from the record that on 6th April, 1965, Behari made a report under Section 498, Indian Penal Code, against Dwarka, deceased. On 24th April, 1965. Smt. Bilasa also made an application to the District Magistrate narrating all the facts relating to her earlier marriage with Behari, and the circumstances under which she took Dwarka as her husband, vide Ext. Ka-2. There she had described herself as Kamla Devi, and it was clear from the evidence on the record that she was also known by that name. The parentage and the address given in the petition further proved her identity. Naturally, Behari and the brothers of Smt. Bilasa would not have liked the change-over made by her. Gokul, appellant, is admittedly a relation of Behari. There was no suggestion whatsoever it there was any apparent motive for his false implication. Dwarka could have no real grievance against the appellants as Smt. Bilasa was already living with him (Dwarka) peacefully. Admittedly, no other unpleasant incident took place between the parties which could have prompted Dwarka or his relations to have implicated the appellants falsely. Even if Dwarka had any dispute in connection with Smt. Bilasa, it was with Behari alone. Naturally, Behari must be feeling sore us he had been deprived by Dwarka of his legally wedded wife, namely, Smt. Bilasa. In the circumstances, it was highly probable that he and his relation Gokul with the help of the other appellants, namely, Chotey Lal and Chat Ram (brothers of Smt. Bilasa), committed the crime. Chotey Lal, Chet Ram and Gokul visited Dwarka on the pretext of taking Smt. Bilasa on the occasion of Sawan festival. When he did not accede to their request, they created trouble, and Behari also joined them and took an active part in the crime. So, the Sessions Judge has rightly found that the appellants had sufficient motive to join hands against Dwarka, deceased.
18. Now, coming to the main occurrence, it took place in broad daylight and was witnessed by Parwan Lal, P.W. 1, Smt. Bilasa, P.W 2, Moti, P.W. 4, Kundan, P.W. 5, Roopan, P.W. 6 and Suraj Bali, P.W. 7. Out of them, Parwan Lal and Suraj Bali, brothers of Dwarka, deceased, also received injuries (in the same incident. So their presence at the time of the occurrence could not be doubted. The other injured person, namely, Smt. Savitri, was not examined at the trial. Smt. Bilasa was at the house of Dwarka, when the unfortunate incident took place. It was in evidence that when Dwarka saw Chhotey Lal and Chet Ram among the visitors to his house, he offered them seat and asked Smt. Bilasa to entertain them with sharbat
Thereupon, Chhotey Lal told him that they had come to take away Smt. Bilasa on the occasion of Sawan. He did not agree to that proposal, and told them that since there was rush of work in the house, they could take her away afterwards That reply did not satisfy the appellants, and they threatened to take her away forcibly. In that connection, exchange of hot -words took place between them. In the meantime, Behari also rushed there from the neighbouring house armed with a lathi. He instigated the other appellants to kill Dwarka. So, they all attacked him with the different weapons which they possessed. Parwan, brother of Dwarka, who happened to be present there tried to intervene, but he too was attacked.
Then Suraj Bali, another brother oi Dwarka, and his wife Smt. Savitri rushed to the help of the victims. They too met with the same fate at the hands of the assailants. Moti, Kundan and Roopan who lived in the same vicinity also rushed there. It was said that when they tried to intervene, they were threatened by Chhotey Lal. (The houses of Kundan and Moti are situated immediately towards south of the scene of occurrence. The house of Roopan adjoins that of Behari, appellant, towards west. At the relevant time, Moti was near the well situated towards northwest of the scene of occurrence.) So, they all are quite natural witnesses of the occurrence. There are no material contradictions in their evidence nor any direct enmity with the appellants could be established. They had no apparent motive to perjure themselves. The testimony of the ocular witnesses gets corroboration from the medical evidence. Dwarka, Suraj Bali, Smt. Savitri and Parwan Lal in all received 38 injuries. They had been caused by lathis, bhali and kanta. On a critical analysis of the evidence, the trial Judge observed:
' . . . . Considering these statements, therefore, I am satisfied that all the four accused took part in the fight and that the injuries were caused by them and not by some unknown person or persons whom Parwan Lal, etc., wanted to shield. The Investigating Officer collected bloodstained earth from a place about 2-3 paces from the northern door of Dwarka. The doctor's statement will show that the prosecution case was fully consistent with the injuries having been received in the mid-day of 11-8-1965'.
We entirely agree with the assessment of the evidence made by the learned trial Judge.
19. The next piece of evidence relied upon against Chet Ram, appellant, is the identification evidence of Parwan Lal, Moti and Roopan, P.Ws. As stated earlier, Chet Ram himself had claimed identification from the eye-witnesses. He was correctly identified by Parwan Lal. Moti and Roopan. Smt. Bilasa is the own sister ol Chet Ram. So, rightly she was not produced at the parade. It is true that Smt. Savitri, Kundan and Suraj Bali could not identify Chet Ram. Out oi them only Suraj Bali and Kundan were examined at the trial. Their explanation was that they had seen Chet Ram visiting Behari only once or twice, and they could not identify him at the parade, because a number of paper chits were pasted on his face. That may be true.
On behalf of Chet Ram, appellant, it was strenuously urged that because these witnesses could not identify him correctly, his presence at the time of the occurrence became highly doubtful. We, however, do not agree with that submission. Even if we ignore the evidence of these 2 witnesses, there was the evidence of the other witnesses, namely, Par-wan, Smt. Bilasa, Moti and Roopan, who affirmatively connected Chet Ram, appellant, with the crime. Smt. Bilasa who is the own sister of Chet Ram could not have any motive to implicate him falsely. The evidence of these witnesses could not possibly be discarded. So, it was fully established that Chet Ram, appellant, was also one of the assailants, and he took an active part in the crime. It was clear from the medical evidence that the largest number of injuries has been caused with a kanta.
20. Another important circumstance relied upon by the prosecution was, that Smt.Bilasa was arrested with Chhotey Lal andBehari on the night of 12th/13th August, 1965 near Keshyapur. This has been amply proved by the evidence of Smt. Bilasa and the Investigating Officer Shri Bhagwan Bux Singh, P.W. 16. These witnesses had no apparent motive to perjure themselves.
21. On behalf of the appellants it was urged that since no recovery memo, was prepared by the Investigating Officer, the story about the arrest of Smt. Bilasa with Chhotey Lal and Behari was highly doubtful. In our opinion, that contention is devoid of force. Since Smt. Bilasa was arrested with some of the accused, it was not at all necessary to prepare a separate recovery memo. On behalf of the appellants it was never asked from the Investigating Officer if he had mentioned in the report which he made in the general diary that Smt. Bilasa was with Chhotey Lal and Behari when he arrested them. The trial Judge has rightly found that Smt. Bilasa was actually recovered in the company of Chhotey Lal and Behari at the time of their arrest. That circumstance lent additional support to the prosecution case that she had been actually removed by force from Dwarka's house, and was recovered the very next day in the night.
22. It was next urged on behalf of the appellants that Section 34 of the Indian Penal Code had no application to the case. The appellants could never have the common intention to kill Dwarka. As regards Chhotey Lal, appellant, it was further submitted that he only caused a single Bhali injury to Dwarka and thereafter he took no part in the crime. This indicated that he did not share the common intention with his other companions in the commission of the crime. So, it was contended that the appellants could only be responsible for their individual acts.
23. The leading feature oi this section is the element of participation in action. It embodies a principle of joint liability in the doing of a criminal act and the essence of that liability is the existence of a common intention. It is well settled that common intention in this section presupposes prior concert. It requires a pre-arranged plan, because, before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. It is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case. Once the criminal act becomes independent of the common intention though done in pursuance of an intention, same or similar to that common intention or giving rise to consequence, same or similar in nature as contemplated by the common intention, the rule of constructive liability as laid down in this section ceases to operate and others, who are a party to the original common intention, will not be held liable constructively for that criminal act.
24. In the instant case, it has been satisfactorily proved that Chhotey Lal armed with a bhali, Chet Ram with a kanta and Gokulwith a lathi visited the house of Dwarka, deceased. They picked up quarrel with Dwarka, and showered abuses. In the meantime, Behari also joined them armed with a lathi. He actually instigated them to kill Dwarka. Then, they all mercilessly attacked Dwarka with the weapons which they possessed. They caused him in all 23 injuries which ultimately proved fatal. When Parwan Lal tried to intervene, he too was attacked. He sustained six injuries. When Suraj Bali and Smt. Savitri rushed to the help of the victims, they also met with the same fate at the hands of the assailants. They both received nine injuries. In the circumstances, it could not be doubted that they all acted in concert, used deadly weapons in the assault, and had the knowledge of the serious consequences that could follow. It is true that Chhotey Lal caused a single bhali injury, but he remained present there throughout the occurrence. It was in evidence that he even threatened the witnesses when, they tried to rescue the victims. In this connection, it was urged on behalf of the appellants that the first information report was silent about the fact of instigation given by Behari or the threat extended by Chhotey Lal. These were matters of detail and even if they were omitted from the first information report, that by itself would not belie the prosecution case. So, this submission too is devoid of force. The appellants have been rightly convicted of the various charges with the aid of Section 34, Indian Penal Code.
25. Accordingly, the appeals are dismiss-ed and the conviction and sentence of Chhotey Lal, Gokul, Behari and Chet Ram on the charge under Sections 302, 324 and 323 read with Section 34, Indian Penal Code, are maintained. They are reported to be in jail, and shall serve out the sentences. Behari and Gokul, appellants, may be informed about the result of their appeals.