Mahesh Chandra, J.
1. These are three connected appeals--criminal appeal No. 699 of 1965 filed by Thakur Das and Gajraj. criminal appeal No. 700 of 1965 filed by Girja Shanker. Suraj Singh, Laxmi and Ratan and criminal appeal No. 702 of 1965 filed by Bulley All of them have been convicted under Section 302/ 149 I.P.C. for committing the murder of Mazboot Singh and Ram Sahai and under Section 307/149 I.P.C. for attempting to murder Lakhan Lal. Laxmi. Ratan and Gajraj appellants have been sentenced to life imprisonment under Section 302/149 I.P.C., and Thakur Das, GirjaShanker, Suraj Singh and Bulley have been sentenced to death. Under Section 307/140 I.P.C. all the appellants have been sentenced to undergo ten years' rigorous imprisonment Girja Shanker and Bulley have been convicted under Section 148 I.P.C. and sentenced to undergo two years' rigorous imprisonment. Laxmi, Suraj Singh. Ratan, Thakur Das and Gajraj have been convicted under Section 147 I.P.C. and sentenced to undergo two years' rigorous imprisonment. The sentences of imprisonment were to run concurrently.
2. The two persons killed were father and son, Mazboot Singh being the father of Rain Sahai. Lakhan Lal injured is another son of Mazboot Singh. Girja Shanker is said to have been armed with a spear and Bulley with a Gupti. The rest are said to have been armed with lathis. Girja Shanker, Suraj Singh, Laxmi and Ratan appellants are brothers, being the sons of Har Das. Thakur Das is the son of Dbani Ram, and Gajraj is the nephew of Thakur Das. These six appellants are all ahirs and belong to village Ranipur. The deceased and the injured also belonged to the same village. Bulley, the seventh appellant is a Brahman and a resident of village Birsinghpura.
3. Briefly stated, the prosecution case was this. On 5th August 1964 at about mid-day Lakhan Lal was working in his Bandhia field of village Bhararu. district Jhansi, Mazboot Singh brought Lakhan Lal's Kalewa. Lakhan Lal said that he would take it after working for sometime more. Mazboot Singh then was resting under the Mahua tree. All of a sudden Girja Shanker. Bulley, Laxmi, Suraj Singh, Ratan. Thakur and Gajraj arrived there armed as mentioned above. Suraj Singh, Girja Shanker and Laxmi beat Lakhan Lal who started running towards the east and the others beat Mazboot Singh. Thereafter they dragged Lakhan Lal and Mazboot Singh under the Mahua tree and all the seven appellants beat them there also. Thinking that they were dead. Girja Shanker said 'let us see elsewhere' and all the seven appellants then went to Bisa field where Mazboot Singh's son Ram Sahai and his ploughman Dasain were ploughing the field.
Smt. Kachneu Wali had brought meals for Ram Sahai and was sitting there. The assailanis started beating Ram Sahai and threatened Dasain and Smt. Kachneu Wali that they would also be beaten if they came near Ram Sahai. The seven appellants then dragged Ram Sahai and left him under the Raunja tree. Ram Sahai asked Dasain to inform the inmates of his house about the incident. Dasain reached home and informed his father and an information was sent to Ram Sahai's house through some lady At Bandhia field Mazboot Singh asked Lakhan Lal to bring water for him if he could do so. Lakhan Lal went towards the village but fell down under the Raunja tree at Kaitha Tila and could not go further. Badri Prasad, the third son of Mazboot Singh, had come with mid-day meals for Mazboot Singh and Lakhan Lal and had seen a part of the incident from a distance.
He ran to his house and informed Head Constable Ram Bharose at police outpost (sic). The head constable then came to the spot with a Tonga. Ram Sahai's mother had already reached there. Lakhan Lal told them about the incident of Bandhia field and asked them to go and look after Mazboot Singh under the Mahua tree. When they reached the Mahua tree they found Mazboot Singh lying dead. Smt. Kachneu Wali then came towards them, and when they reached Bisa field Ram Sahai told them about the incident. He was taken on the Tonga along with Lakhan Lal to their house and there also Ram Sahai told the village people about the incident and thereafter expired. Badri Prasad went to the police station Mauranipur, which is six miles away from the village, and lodged the first information report at 3.05 p.m. the same day.
4. All the appellants pleaded not gyuilty. Except Bulley they all alleged that they had been falsely implicated out of enmity. Suraj Singh appellant stated that he had been living at village Matain. Gajraj and Thakur Das pleaded alibi. Bulley alleged that he had been falsely implicated at the instance of the Sub-Inspector of Police.
5. The eye-witnesses of the occurrence be divided into two sets--one consisting of Lakhan Lal P.W. 2 and Badri Prasad P.W 4 deposing about the incident at Bandhia field where Mazboot Singh and Lakhan Lal are said to have been beaten and the other consisting of Dasain P.W. 1 and Smt. Kachneu Wali P.W. 3. Besides the evidence of these witnesses there are also two oral dying declarations of Ram Sahai--one of which is said to have been made to Ram Bharose Head Constable and the other to the villagers at the house.
The alleged motive is proved by Bhagwan Das P.W. 6 and Babu Lal Yadava P.W 8.
According to the prosecution case, about 12 or 13 years back Dhani Ram and Babu who were the father and brother respectively of Thakur Das appellant were murdered. In that incident Thakur Das had also received injuries. Mazboot Singh, Punu, father of Mazboot Singh, Manna and Har Das father of Girja Shanker, Suraj Singh, Laxmi and Ratan appellants were sentenced to life imprisonment for those murders. Punu died in jail and Mazboot Singh, Har Das and Manna were released on licence under the U.P. Prisoners' Release on Probation Act. This is established by the evidence of Lakhan Lal P W. 2. Thakur Das had, therefore, reason to be inimical against Mazboot Singh who had murdered Thakur Das's father and brother Gajraj, as already stated, was Thakur Das's nephew and would, therefore, also bear enmity with Mazboot Singh for the murders of his grand-father and uncle.
6. The statement of Babu Lal Yadava P.W. 8 shows that there was a dispute between Mazboot Singh deceased and Girfa Shanker appellant regarding a plot of land, and that there was a Panchayat in respect of it. Lakhan Lal P.W. 2 stated that his grand-father Punu had a son Mazboot Singh and four daughters and that bis grand-father Punu had given half of his fields to his daughter Smt. Kuniya and the other half to his son Mazboot Singh. There was a patia field in addition to these two portions and it remained with Mazboot Singh. Smt. Kuinya's husband Har Das, the father of the appellants Girja Shanker, Suraj Singh, Lax-mi and Ratan. had asked for this field to produce wheat on it in connection with the marriage of Ratan appellant. About 2 1/2 years back after the Marriage Mazboot Singh wanted the field back, but Har Das and his sons refused to give it up.
A notice was consequently given by Mazboot Singh in respect of that field and it was alleged in that notice that Girja Shanker had trespassed on that land. That notice Ex. Ka.--8 had been proved by Bhagwan Das. Later on Panchayat was held as deposed to by Lakhan Lal and Babu Lal Yadava: Babu Lal Yadava was one of the Panchas and they decided that Patia field should be given to Mazboot Singh and that the rest of the fields mentioned in the notice should continue in the hands of Har Das and his sons. It is also clear from the extracts of Khatauni Exs. Ka.--26 and Ka.--27 that Mazboot Singh was entered as Sir-dar over 49 plots with an area of 43 acres, and that Girja Shanker was entered as Mazboot Singh's Shikmi over 14 out of those 49 plots covering an area of 17 acres.
In Ex. Ka. 25 plot No. 213/3, which was the same as Patia, was entered in the name of Mazboot Singh as tenant-in-chief and Girja Shanker was entered as sub-tenant Badastoor. Ex. Ka. 35. Is the award of the Panches showing that the Patia field, i.e. plot No. 213/3. was ordered to be given to Mazboot Singh and the land entered in the name of Har Das and his sons as Shikmis was allowed to remain in their possession This was on 2nd February 1964 and Mazboot Singh took possession over the Patia field some time after it. But it appears that the four appellants, Girja Shanker and his three brothers, did not accept the Panches' decision although the decision was signed by Girja Shanker. Ratan stated in his statement as accused that he was in possession of the Patia field even on the date of murder. On 5th August 1964, according to the statement of Dasain, he and Ram Sahai had gone to Patia field to plough it. Thus Gifja Shanker and his brothers had a grouse against Mazboot Singh in respect of the Patia field. Girja Shanker and his brothers. Suraj Singh, Laxmi and Ratan had, therefore, reason to join hands with Thakur Das and Gajraj agairist Mazboot Singh and his sons as found by the court below.
7. Dr. J. P. Agarwal P.W. 11 had performed the post-mortem examination of Ram Sahai and had found the following ante-mortem external injuries on his person:
(1) Incised wound 1/2' X 1/24' X bone deep on left side head 4' about left eye brow.
(2) Incised wound 3/4' X 1/4' X bone deep on right side head. 3 1/2' above right eye brow.
(3) Scabbed abrasion 2' X 1 1/4' on frontof left clavicular region.
(4) Abraded contusion 1 1/2' X 1' on distal outer side right arm with fraeture of bonebelow.
(5) Contused area 2' diameter on upper front of right arm.
(6) Penetrating wound 1/2' X 1/3' X bone deep on dorsum of right hand.
(7) Two contusions 5' X 1/2' and 1 1/4' X 1/2' on back of right elbow and upper back right forearm..
(8) Incised wound 1' X 1/4' X bone deep on front of right knee.
(9) Penetrating wound 3/4' X 1/4' X bone deep on distal inner side right leg.
(10) Penetrating wound l' X 1/2' X bone deep on outer side right ankle.
(11) Scabbed abrasion 1' X 3/4' on inner side distal part left leg with fracture of bone below.
(12) Abrasion 1 1/2' X 3/4' on outer side left knee.
(13) Abraded contusion 1 1/2' X 1/2' on distal outer side left thigh.
(14) Mixed abrasion in area of 2' X 1' on back of left elbow.
(15) Abraded contusion 3/4' X 1/2' on upper back of left forearm.
(16) Scabbed abrasion in area of 12' X 10' on right shoulder blade and back.
(17) Scabbed abrasion 4' X 3' on right buttock.
7-a. Injuries Nos. 1, 2 and 8 were according to the Doctor, caused by a sharp edged weapon, Nos. 6, 9 and 10 by penetrating weapon and the other injuries by a blunt weapon. The doctor also found that the right numerous bone of the left tibia and fibula were fractured and that both the ventricles of the heart were empty. In his opinion the death resulted because of syncope owing to loss of blood and shock.
8. The same doctor performed the postmortem examination of Mazboot Singh and found the following ante-mortem external injuries on his person:
(1) Three scabbed abrasions 3/4' X 1/2' each on right temple.
(2) Penetrating wound two 1/2' X 1/4' X 1 1/2' on outer side right elbow. Other 3/4' X 1/4' X 1/2' above by 3/4 to the previous one.
(3) Four scabbed abrasions in area of 8' X 4' ranging from 1 1/2' X 3/4' to 1/2' X 1/4' on distal outer side right forearm and distal right arm with fracture of bone below (right humerous).
(4) Scabbed abrasion 3/4' X 1/2' on dorsum of right wrist with fracture of bone below radius and ulna.
(5) Contusions four 4' X 1/2' to 2' X 1/2' on middle outer side right thigh.
(6) Penetrating wound 1/2' X 1/4' X 3/4' on middle outer side right thigh.
(7) Penetrating wound 1/2' X 1/4' X 3/4' onfront of right knee.
(8) Lacerated wounds two 3/4' X 1/2' muscle deep and 1/2' X 1/4' skin deep 1/2' apart middle from of right leg.
(9) Penetrating wound 1/2' X 1/4' X 3/4deep on distal outer side right leg.
(10) Penetrating wound 3/4' X 1/2' X (sic)deep (bone) on distal outer side right leg justabove the ankle, with fracture of tibia andfibula below
(11) Penetrating wound four 1' X 3/4' X 2' deep to 1/2' X 1/4' X 3/4' deep on back on left elbow, directing upwards and forwards
(12) Scabbed abrasion 1' X 1/2' on upper outer side left elbow with fracture of upper head of radious and dislocation of elbow joint.
(13) Penetrating wound 3/4' X 1/2' X 3/4' on dorsum of left hand
(14) Three scabbed abrasions 1 1/2' X 1/2' to 3/4' X 1/2' on front of left knee and upper left leg front.
(15) Abraded contusion 3' X 1/2' on distal front of left leg with fracture of bones (Tibia and Fibula) below.
(16) Penetrating wound 1/2' X 1/4' X 2' on outer side left ankle.
(17) Scabbed abrasion multiple fourteen in number ranging from 4' X 3' to 1/2' X 1/4' on back and shoulder blade region.
(18) Abrasion 2' X 1 1/2' on back of leftshoulder.
8-a. Injuries Nos. 2, 6, 7, 9 to 11, 13 and 16 were, according to the doctor, caused by penetrating object and others by a blunt weapon. On internal examination both the ventricles of the heart were found empty. In the opinion of the doctor death of Mazboot Singh was as a result of syncope owing to loss of blood and shock.
9. The contusions, and abrasions couldbe caused by lathi, while simple abrasionscould also be caused by dragging a man onthe ground. As found by the court below it appears from the fact that in the case of Mazboot Singh rigor mortis had passed off whilein the case of Ram Sahai rigor mortis was present at the examination; This shows thatMazboot Singh had died before Ram Sahai.This is also in accordance with the statementsof Badri Prasad and Lakhan Lal. The doctor too had stated that it was possible for RamSahai to remain alive after the assault and thathe could speak.
10. The same doctor examined the injuries of Lakhan Lal on 8th August 1964 atabout 5.40 p.m. and found the following 22 injuries.
(1) Lacerated wound 1' X 1/6' X boneon back of left side head.
(2) Lacerated wound Va' X 1/4' X skindeep 1 1/4' to left of injury No. 1.
(3) Tr. swelling extending from distal half of right forearm to the whole of right forearm with abrasion l' X 1' on dorsum of right hand.
(4) Contusion 3' X 1 1/2' with laceratedwound 1/2' X 1/6' X skin deep on inner rightelbow.
(5) Contusion 2 3/4' X 1 1/2' on back of leftshoulder.
(6) Contusion 3' X 1 1/4 on, distal backof left arm. (7) Lacerated wound 1/6' X 1/6' X bonedeep on back of left elbow.
(8) Contusion 1 1/2' X 1' on outer side ofleft elbow.
(9) Swelling on whole of left forearmleft hand and all the fingers left hand withcontusion 2 X 1 1/2' on upper back of leftforearm.
(10) Two contusions 2 1/4' X 1 1/4' on front of left sub-costal region.
(11) Contusion 1 1/4' X 1 1/4' on left side back.
(12) Contusion 6 1/2' X 1/2' on left buttock.
(13) Contusion 5 1/2' X 1 1/2' on distal outerside left thigh.
(14) Contusion 3 1/2' X 1 1/2' on back of left knee.
(15) Contusion 3' X 1 1/4' on left calf.(16) Contusion 2 1/2' X 1' on distal left byback.
(17) Contusion G swelling 4 1/2' X 1' on left ankle outer part.
(18) Abraded contusion 2 1/4'X 1/2' on distal inner side left thigh.
(19) Three abraded contusions 2 1/4'X 1/6' to 1 1/2' X 1/2' on middle outer side right thigh.
(20) Coatusions three 2 1/4' X 2 1/2' to 2' x 1' on back of right knee.
(21) Lacerated wound 1/2' x l/4' x skin deep on distal inner side right leg.
(22) Contusion 2 1/2' X 1 1/4' on distal front of left leg. As found by the court below these injuries clearly show an attempt to kill Lakhan Lal but he survived.
11. As one of the seriously injured persons he is the best witness to prove the incident at the place where he was present. As deposed to by him, Mazbooth Singh who had brought Kalewa for him, was resting under the Mahua tree while Lakhan Lal himself was working in the Bandhia field. All the seven accused suddenly came there. Girja Shanker armed with Barchi, Bulley with Gupti and the others with lathis. Girja Shanker, Suraj Singh and Laxmi appellants surounded Lakhan Lal and started beating him, while Bulley, Gajraj and Ratan surrounded Mazboot Singh and beat him The father and son who were beaten tried to run towards each other at first and then in different directions to save themselves. They were severely beaten and after that dragged to the Mahua Tree where they had again been beaten by all the appellants. Lakhan Lal states further that he fell down and pretended to be dead and that Mazboot Singh had also fallen. The appellants then went away and Girja Shanker said 'let us see elsewhere:' Thereafter Lakhan Lal tried to speak to his father but his father asked him to keep quiet so that the appellants might not return again and beat them Mazboot Singh asked Lakhan Lal to bring water and report the matter at the police station. Lakhan Lal tried to go towards the house but he fell down on the way under the Raunja tree at Kaitha Tila and was found there by Badri Prasad and Head Constable Ram Bharose.
12. it was contended by the learned counsel for the appellants that though LakhanLal said that he was beaten by Grirja Shanker,Suraj Singh and Laxmi and that Girja Shanker was armed with a spear, yet Lakhan Laldid not receive any spear injury This is notsurprising for it is not necessary that eventhough attacked by these three persons, one ofwhom might have been armed with a spear,he might not have received a spear injury. Hedoes not say that Girja Shanker's spear actually struck him. It was again contended by thelearned counsel for the appellants that according to Lakhan Lal, the assailants of MazbootSingh were only Thakur Das, Gajraj, Bulleyand Ratan, and that none of them except Bulley had a penetrating weapon in his hand.His contention is that, in view of this statement of Lakhan Lal, the penetrating woundsas well as the incised wounds could not havebeen caused by anything except Ballam(Gupti).
This contention is again without force; for we find that Lakhan Lal had stated that after Mazboot Singh and Lakhan Lal had been dragged by the appellants, all of them beat Mazboot Singh and Lakhan Lal under the Mahua tree. It cannot, therefore, be said that some of the incised wounds and the penetrating wounds on the person of Mazboot Singh were not caused by the Ballam in the hands of Girja Shanker. It is true that Lakhan Lal himself stated that the blade of Girja Shanker's spear had separated and fallen when he was beating Lakhan Lal, but he also states that he does not know whether it was picked up and refixed. ft was certainly not found on the spot after the assault. Some of fee injuries on the person of Mazboot Singh could, therefore, have been caused by Girja Shanker's Ballam when he was beaten again under the Mahua tree by all the appellants.
There is consequently no reason to disbelieve the account of Lakhan Lal, who washimself seriously injured in the marpit atBandhia field under the Mahua tree. Hisstatement is also supported by the fact thatmarks of dragging were found over the wholetrack of ten paces of Bandhia field to theMahua tree, and that the track was coveredwith blood stains with a pool of blood underthe Mahud tree. It was also found by the Investigating Officer that the crop had beendamaged. A shoe of Mazboot Singh andanother of Lakhan Lal were found inside theBandhia field by the Investigating Officer whoalso found 30 to 40 foot-prints inside theBandhia field. He in fact stated that it appeared as if a game of Kabaddi had beenplayed there.
This shows that: there had been marpit inside the Bandhia field. He also found a Kurta (Ex 5) in the middle of the Bandhia field, and Angocha (Ex. 6). 20 paces away from the Mahua tree. Both of them belonged to Mazboot Singh deceased. It is true that Lakhan Lal himself did not state about the death of Mazboot Singh but this is evident ly because he had gone to bring water and had fallen under the Raunja tree away from Mazboot Singh and was not informed aboutMazboot SIngh's death by his relations lest the shock might kill him in the condition in which he was as a result of the injuries received by him.
13. The learned Sessions Judge has relied on the statement of Badri Prasad (P. W. 4) in respect of the part of the marpit which Badri Prasad alleges to have seen. We, however, consider it doubtful if Badri Prasad was actually present on the spot, it is not likely that Badri Prasad would have seen his father and brother being so severely beaten by the appellants and would then run 1 1/2 miles to his village, for he must have known fully that it was not possible for Mm to bring help from such a long distance before the assailants would have gone away. He has also stated at one place that he was preparing Biris at his house and had gone to sell them and returned from there, and at another place he slated that he had gone to Gulab's place for making Biris and had returned from there. These contradictions make it doubtful whether he had at all returned in time to go to the spot with the meals as alleged and seen any part of the fight and had not actually learnt about the occurrence from Lakhan Lal after he had been brought to the village. Even after discarding his evidence there is no reason to disbelieve Lakhan Lal who was certainly on the spot and saw the entire assault on his father and was also the victim of that assault by all the appellants.
14. Ram Sahai was, as deposed to by Dasain and Smt. Kachneu Walt (P Ws 1 and 3), assaulted at Bisa field. As deposed to by Dasain (P. W. 1), who is the ploughman of Ram Sahai and had gone with him for ploughing the field, they had ploughed the Patia field earlier and then proceeded to Bisa field. Smt. Kachneu Wall had brought the midday meal for Ram Sahai, but Ram Sahai had said that he would take the meals when Dasain's meals also reached there. All the assailants arrived at the spot suddenly, As deposed to by P. Ws. 1 and 8, the assailants started beating Ram Sahai. Dasain tried to run away and Smt. Kachneu Wali wanted to rescue her husband, but the appellants threatened both of them. They saw Ram Sahai being beaten and thereafter dragged and placed under the Raunja tree. Dasain was then asked by Ram Sahai to go and make a report to the police station. Smt. Kachneu Wall (P. W. 3) remained there.
The statements of Dasain and Smt. Kachneu Wali find support from the fact that a good deal of blood was found under the Raunja tree by the Investigating Officer, who also found a plough in the middle of the field. It is true that he did not find any blood inside the field or any traces of blood upto the Raunja tree, in the light of the gas lantern. When he went to the spot next morning it had already rained at night and no blood could naturally be found in the morning. According to Dasain and Smt. Kachneu Wali (P. Ws. 1 and 3), Ram Sahai had been beaten in the field and dragged upto the Raunja tree. He was againbeaten at Raunja tree. There was, in accordance with the statement of the InvestigatingOfficer, a good deal of blood lying under theRaunja tree itself.
The learned Sessions Judge was of the view that since the field had been ploughed for sowing and the body of Ram Sahai had been dragged the traces of blood from the filed to the Raunja tree would have been obliteraled and the traces of the blood in the field itself would have been removed because of foot steps of the appellants or hoofs of the bullocks. The injuries of Ram Sahai disclosed two incised wounds on the head. The rest of the bleeding injuries were on the hands, arms, knees and legs. The trickling of blood from injuries other than the head would have been, we agree with the court below, obliterated by the dragging. So far as the incised wounds on the head are concerned, it appears from Ex. Ka-21 that a blood-stained Rumal belonging to Ram Sahai was recovered from the dead body.
The Serologist report (Ex. Ka 56) shows that the Rumal along with the Tahmad and Baniyan also recovered from the dead body of Ram Sahai were all stained with human blood. It is, therefore, not unlikely that, while Ram Sahai was being dragged from the field to the Raunja tree, the blood trickling from the incised wounds on the head might have been absorbed in the blood-stained Rumal, for the villagers usually tie a piece of cloth which may be called Rumal on the head while they are working in the sun. Blood trickling from the body as well as from the head for the short period Ram Sahai was in the field and was being beaten there might have also been absorbed in the clothes which he was wearing. We, would, therefore, agree with the court below that the absence of blood in the field does not demolish the prosecution version of the beating of Ram Sahai by the appellants in the field and then of dragging him to the Raunja tree as stated by P Ws. 1 and 3.
There were multiple abrasions on the back and shoulder of Ram Sahai as disclosed by the post-mortem report and the statement of Dr. Agarwal, which also supports their version that he was dragged. Dr. Agarwal stated in the court of the Committing Magistrate that injuries Nos. 16 and 17, which consist of scabbed abrasion in an area of 12' x 10' on the right shoulder blade and back and scabbed abrasion 4' x 3' on the right buttocks could be caused by dragging. We also agree with the court below that there is no reason to disbelieve Dasain merely because he was paid Rs. 5/- as wages when he had brought his own bullock and plough. Nor could he be disbelieved on the ground that he had not gone himself to inform the inmates of Ram Sahai'i house about the incident and had merely sent some woman to do so.
Dasain is a labourer 25 years old and did not work with Ram Sahai as his permanent labourer. Moreover, it is clear that he was very much terrified after what he had seen on the spot, He was in fact so muoh terrified even when he was making his statement in the Sessions court that the learned Sessions Judge himself observed that he had started trembling and tears were dropping from his eyes when he made the account of the incident. Smt. Kacheneu Wall's statement does not suffer from any infirmity whatsoever. It was natural for her to go with mid-day meals for her husband at the time when the incident took place. She does not say that she saw the incident at Bandhia field. She only saw the incident as it occurred at the place where she was with Ram Sahal's meal. We agree with the court below that the statements of P. Ws. 1 and 3 are reliable and it is conclusively established that all the appellants beat Ram Sahai at first at Bisa field and dragged him upto the Raunja tree, and there beat him again and all of them caused the injuries mentioned hy Dr. Agarwall in the post-mortem report.
15. The prosecution also relied on two dying declarations alleged to have been made orally by Ram Sahai to the Head Constable Ram Bharose and to the villagers. Although it is not unlikely that Ram Sahai must have said something about the incident to the villagers when he reached his village or when he was being taken to his house, we agree with the learned Sessions Judge that no reliance can be placed on these dying declarations. In the first place, they are not mentioned in Badri Prasad's first information report even though he had mentioned what Lakhan Lal had told him. Secondly, none of the villagers has been produced to prove what Ram Sahai had stated.
16. Thakur Das and Gajraj examined one Swami Prasad (D. W 1) about the plea of alibi. He stated that Thakur Das and Gajraj had come to the village in search of cattle and had remained there on 5th August 1964 and had gone with him at 1.00 O'Clock to village Jaitpur in the cattle market. According to him, his village is 12 to 13 Kos from Ranipur. The learned Sessions Judge has rightly discarded the statement of this defence witness. Neither he enquired about the name and address of the two accused nor did they do so about him He was merely a stranger and it cannot be expected that he would have accompanied the two strangers upto the cattle market at Jaitpur.
So far as Girja Shanker Laxmi, Ralan and Suraj Singh are concerned they have not produced any evidence that they were at a particular place on that date. It is true that Suraj Singh is a doctor and often resides at Matain. but the distance from Matain and Ranipur is 6 to 7 miles, and the accused himself has not taken the plea that he was on that date at Matain or produced any evidence that he was actually at Matain on that date There is consequently no reason to disbelieve the statements of Lakhan Lal, Dasain or Smt. Kaehneu Wali regarding the participation of all these six accused in the assaults on Mazboot Singh and Lakhan Lal at first and on Ram-Sahai again at Bisa field and under the Raunja tree.
17. As far as Bulley is concerned, the contention of the learned counsel for the appellants is that he was not an Ahir and had no enmity against the deceased or the injured, and that he was said to have been armed only with a Gupti. Gupti, according to the learned counsel, is not a weapon with which a person would go armed if he went with the intention of attacking two or three persons. According to Bulley himself, he had been implicated falsely because of the Daroga. There is, however, nothing to show that the Daroga bore enmity against him. Bulley belongs to the village in which Ratan had been married, and it is also in evidence that Bully was friendly with Ratan. On the one hand, there is no reason for false implication of Bulley by Badri Prasad in the first information report which was dictated by him after hearing 'the incident in detail from Lakhan Lal and others.
It was mentioned in the court below that Dasain had merely mentioned that there was one person of Birsinghpura to Daroga and that the Daroga had told Dasain the name of that person. The Investigating Officer, on the other hand, slated that Dasain never told any person of Birsinghpura whose name was not known to him but had specifically mentioned the name of Bulley. We agree with the court below that the Investigating Officer Shiv Shanker Singh had been careless and that Dasain only knew Bulley by face and did not know him by name and had not actually given his name There is, however, no doubt that Smt. Kacheneu Wali knew Bulley well and so did Lakhan Lal and that Badri Prasad bad been told hy them about Bulley. when he lodged the first information report earlier at 3-05 p.m. on the very day of the incident.
As for the Gupti, it is most unlikely that if they had decided to falsely implicate Bulley they would have placed Gupti in his hand if Bulley had not heen carrying the Gupti. If a weapon had been placed in his hand by Dasain it would have been a more effective weapon like spear and not merely a Gupti. It is also not without significance that a Gupti was recovered from the house of Bulley a few days after the incident, as shown in the affidavit filed by Komal Singh who recovered the Gupti Since it was recovered about three days after the incident, the fact that it did not bear blood stains would not matter, for there was ample time to wipe them off On a consideration of the entire evidence, we hold that Bulley was a member of the unlawful assembly and had also participated in the assault on Mazboot Singh. Lakhan Lal as well as on Ram Sahai
18. The contention of Sri S. N. Mulla, learned Counsel for Bulley appellant, was that no offence under Section 302 I P C had been made out and that at worst it could be an offence under Section 304 I. P. C. His contention was that, according to Dr. Agarwal himself, no single injury was sufficient in the ordinary course of nature to cause death and that the view of the doctor that il was only cumulatively that the injuries were sufficientin the ordinary course of nature to cause death was incorrect According to Sri Mulla to all that could be said was that the injuries were likely to cause death, in support of his contention he also relied on the fact that nobody died immediately after the attack, and that at least one of the deceased was even talking. Mr. Mulla also further relied on Inder Singh Bagga Slngh v. State of Pepsu, AIR 1955 S. C. 439, Kapur Singh v. State of Pepsu, AIR 1956 S. C. 654, Oswal Danji Tejsi v. State, AIR 1961 Guj 16 and Anda v. State of Rajasthan, AIR 1966 S. C. 148.
19. The relevant portion of Section 300I. P. C. runs as follows:
'Except in the cases hereinafter excepled, culpable homicide is murder.. .. ..2ndly. ..3rdly. if tt is done with the intention ofcausing such bodily injury to any person andthe bodily injury intended to be inflicted issufficient in the ordinary course of nature tocausing death.....'
19a. The learned counsel for the appellants contended that it was a case of culpable homicide not amounting to murder, because all that could be said was that the act was done with the intention of causing such bodily injury as was likely to cause death.
20. it is true that the difference between an act of causing such bodily injury as is likely to cause death and the act with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death is one of degree, but the difference is there. It is not necessary for the application of Clause (3) of Section 300 I. P. C. that the injury must be such as would make it impossible for the injured to escape death. All that is required is that the injury intended must be such as would in the ordinary course of nature be sufficient to cause death. There may be a case in which even though the injury was sufficient in the ordinary course of nature to cause death the injured may escape death, but if he dies as a result of such an in jury the offence would be covered by Clause (A) of Section 300 I. P. C. and be murder. If, however, the injury is of such a nature as is only likely to cause death and would not in the ordinary course of nature be sufficient to cause death, it would be culpable homicide not amounting to murder.
21. in AIR 1955 S. C. 439 relied upon by the learned counsel for the appellants, six blows were administered with lathi on the person of the deceased by the appellant and one of the injuries was fatal injury. That injury was 'abrasion 1' x 1/2' on right parietal region. Patient wa's bleeding from mouth. His right upper eye lid was ecchvmosed on inner part. Patient was having severe headache. Fracture of the skull was suspected. Hence he was advised X-ray examination of skull at Harindra Hospital. Faridkot' While this injury was kept under obsevation the deceased developed slight symptoms of compression of brain and he became absolutely unconscious on 28-3-1952, fifteen days after the injury had been caused. Then extra dural haemorrhage set in and proved fatal.
The doctor was of the opinion that that injury was sufficient in the ordinary course of nature to cause death. The Supreme Court was of the view that despite the medical evidence the injury was not sufficient in the ordinary course of nature to cause death. The Supreme Court came to the conclusion, different from the conclusion of both the courts below, on the ground that the injured survived for three weeks and the doctor had admitted that an injury of that kind was not incurable. In the opinion of the Supreme Court it was merely an injury which the appellant knew was such as was likely to cause death. Consequently they converted the conviction to one under Section 304, Part I, I. P. C. It is obvious that the Supreme Court came to that conclusion on consideration of the nature of the injury caused, and in that connection it took into consideration also the period of three weeks during which the injured had survived.
It was a decision on the facts of that case and on the basis of the nature of the injury which in the opinion of the Supreme Court was not sufficient in the ordinary course of nature to cause death. In the present case (he injuries were caused at mid-day. Mazboot Singh had rceived 8 punctured wounds and a number of lathi injuries, the total- number of injuries being 46 in all. He died soon after receiving the injuries and was found dead when Mazboot Singh's wife and son. arrived at the spot. Ram Sahai, the other injured person, had seventeen injuries on his person, out of which three were penetrating wounds, three incised wounds, four scabbed abrasions, two abrasions and five abraded contusions. He died soon after having been brought to the house. Dr. Agarwal was of the view that although no single injury was sufficient in the ordinary course of nature to cause death, the cumulative effect of the injuries was such as to be sufficient in the ordinary course of nature to cause death. This opinion of his is based on the nature and number of the injuries, and we see no reason to differ from the opinion of the doctor that the injuries of Mazboot Singh and Ram Sahai were cumulatively sufficient in the ordinary course of nature to cause their deaths.
22. in the case reported in AIR 1956 SC 654, Chand Singh, the companion of the appellant, held the head of the deceased and the appellant inflicted as many as 18 injuries on the deceased. All of these injuries were, however, on the arms and legs of the deceased and were inflicted with a Gandasa. The Supreme Court considered two factors in coming to the ronclusion that the offence was not under Section 302 I. P. C. but under Section 304(f) I. P. C. The first factor was that none of the injuries was inflicted on any vital part of the deceased's body and the second was that the motive of the appellant was to inflict such in-juries (injuries on the arms and legs of the deceased) as would result in the amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for what his son, Bachan Singh, had done to his (the appellant's) own son Pritam Singh.
This was based on the fact that before the date of the occurrence the deceased Pritam Singh had caused a severe injury on the legs of the appellant's son Pritam Singh resulting in amputation of Pritam Singh's leg. It was also found by the Supreme Court that it was a case in which the appellant was trying to take revenge on a suitable opportunity presenting itself and that opportunity came on 30-9-1952 when the appellant encountered the deceased. In the present case there was no question of a sudden encounter. The appellants had gone to the Bandhia field and after beating Mazboot Singh and his son Lakhan Lal had proceeded to the Bisa field, and there was also the motive to cause death and not merely serious leg injuries. Neither of these two decisions therefore applies to the present case on principles.
23. in AIR 1961 Guj 16 the three accused persons had jointly assaulted the deceased with sticks, one of them being ironringed, and the total number of blows inflicted was 21, some of them being on vital parts of the body but only two of those injuries were fatal. A Division Bench of the High Court of Gujrat held, that having regard to the paucity of the number of fatal injuries, it would not be proper to say that the three accused persons were necessarily actuated with an intention of causing the death of the deceased, and the only inference to be drawn was that the common intention of the three was to cause grievous hurt to the deceased. The offence was consequently held to be one under Section 326 read with Section 34 I. P. C.
24. in AIR 1966 S. C. 148 their Lordships of the Supreme Court considered this case. After quoting the reasons of their Lordships of the Gujarat High Court for arriving at the conclusion that an offence had been made out under Section 326/34 I. P. C., their Lordships of the Supreme Court observed:
'The statement of the learned Judges which we have quoted from their judgment, with due respect, is not adequate. They seem to have considered the matter only from the view point of Clause (1) of Section 300.'
These observations show that the decision was not approved by the Supreme Court and did not in fact deal with the question of Clause (3) of Section 300 I. P. C. at all. Hidayatullah, J. speaking for the Supreme Court observed: 'No case can, of course, he an authority on fact.' His Lordship was of the view that it is always a question of fact as to whether the accused shared a particular knowledge or intent and went on to say:
'Next, one must look for the requisite ingredient tha! the injuries which were intended to be caused were sufficient to cause deathin the ordinary course of nature. Next we must see if the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. When these circumstances are found and death is, in fact, caused by injuries which are intended to be caused and which are sufficient in the ordinary course of nature to cause death the resulting offence of each participant is murder.'
In this case the accused beat Bherum inside a house after dragging him there. The number of injuries shows, that all took part. His arms and legs were smashed and many bruises and lacerated wounds were caused on his person. The injuries intended to be caused were sufficient in the ordinary course of nature to cause death. The assault was thus murderous and it must have been apparent to all the assailants that the injuries they were inflicting in furtherance of the common intention of all were sufficient in the ordinary course of nature to cause death. In these circumstances it cannot be said that the offence was not murder but only culpable homicide not amounting to murder.'
25. it is thus evident that the question has to be decided on the facts of each case and where the injuries intended to be caused are such as would be sufficient in the ordinary course of nature to cause death the offence would be murder and not culpable homicide not amounting to murder. This ease referred also to the earlier decision of the Supreme Court in Brij Bhukhan v. State of Uttar Pradesh, AIR 1957 SC 474. In that case although the medical evidence did not say that any one of the injuries was sufficient to cause death in the ordinary course of nature, their Lordships held that even then it was open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailants intended to cause death of the deceased. They further held that even if none of the injuries was sufficient in the ordinary course of nature to cause death of the deceased, cumulatively they may be sufficient in the ordinary course of nature to cause his death. Imam, J. speaking for the Court observed:
'It is true that the doctor has not said that any one of the injuries was sufficient to cause death in the ordinary course of nature. We have, however. looked into the nature of the injuries found on them that the assailants intended to cause Ram Prasad's death. It is significant that Ram Prasad died within a very short time of the assault on him. It is difficult to imagine how any human being could have survived the ferocity of the assault and injury No. 5, which was a contused area 7' x 8' over the left buttock and upper of left thigh (upper forth back) with five contusions varying in length from 3' x 2' and breadth 3/4' x 1' with abrasion rupee size near scrotum, must have largely contributed to the death of Ram Prasad Major portion of the injuries are of a kind indicating that they had been inflicted upon a man who had fallen down. Both thechambers of the heart were round empty which clearly indicated haemorrhage. If the numerous injuries found on the body of Ram Prasad, had been inflicted in the manner deposed to by the prosecution witnesses, there can be little doubt that the assailants intended to cause his death. Furthermore, 'even if none of the injuries by themselves was sufficient in the ordinary course of nature fo cause Ham Prasad's death, cumulatively they were certainly sufficienl in the ordinary course of nature to cause his death' which in fact took place soon after the assaull.' (the underlining here in ' ' is ours).
26. it will he noticed that none of the injuries WHS on the vital part of the body. The main injury was on the buttock and the other injuries were also on the upper forfh back, and yet on the basis of the cumulative effect of the injuries it was held that they were sufficient in the ordinary course of nature to cause death. In the present case also we have the clear opinion of the doctor that the injuries on the persons of Mazboot Singh and Ram Sahai were cumulatively sufficient in the ordinary course of nature to cause their deaths. This opinion was not even challenged in cross-examination by the counsel for the defence
27. From the evidence adduced in the present case we have already seen that it has been clearly established that all the appellants one of whom was armed with a spear. the other with a Gupti and the rest with lathis, formed an unlawful assembly and that in prosecution of the object of that assembly beat Mazboot Singh and Lakhan Lal, dragged them from the field and then went to the Bisa field and beat Ram Sahai, and that the intended injuries were such a.s were sufficient in the ordinary course of nature to cause death. The offence under Section 302/149 I. P. C. has thus clearly been made out against all the appellants.
Since it has not been proved that any vital injury was caused by anv one of the persons and that any one injury was by itself sufficient in the ordinary course of nature to cause death we think that the sentence of imprisonment for life will meet the ends of justice. So far as the injuries on Lakhan Lal are concerned, it is clear that all the appellants caused such injuries to Lakhan Lal with knowledge and under such circumstances that if death of Lakhan Lal had been caused they would all be guilty of murder. In the case of Lakhan Lal also Dr. Agarwal was of the view-that death could have resulted from the cumulative effect of the injuries which were sufficient in the ordinary course of nature to cause death. An offence under Section 307/149 I. P.C. has, therefore, been made out against all the appellants so far as injuries of Lakhan Lal arc concerned and the sentence awarded to them on that count is fust and proper.
28. The result is that the appeals of the appellants against their convictions are dismissed but the sentences of death of Thakur Das, Girja Shanker, Suraj Singh and Bulley appellants are set aside and are reduced to those of imprisonment for life The reference is rejected. The rest of the sentences are affirmed. They shall run concurrently. This judgment shall govern all Criminal Appeals Nos. 699, 700 and 702 of 1965.