J.P. Chaturvedi, J.
1. These are two appeals against a judgment of the learned III Additional District and Sessions Judge, Etawah, Criminal Appeal No. 2042 of 1974 is by Ganga Singh, Arjun Singh and Dangal Singh. Criminal Appeal No. 2412 of 1974 is by Soney Lai. Soney Lai was convicted of an offence under Section 302 read with Section 301, I. P. C. and was sentenced to undergo imprisonment for life. He was also convicted under Section 307 read with Section 34, I. P. C. and was sentenced to undergo rigorous imprisonment for seven years. Both the sentences were to run concurrently. The appellants Ganga Singh, Arjun Singh and Dangal Singh were convicted of an offence under Section 302 read with Sections 301 and 34, I.P.C. and were sentenced to undergo imprisonment for life. They were further convicted of an offence under Section 307 read with Section 34, I. P. C. and were sentenced to undergo rigorous imprisonment for seven years. The sentences of all the appellants were ordered to run concurrently.
2. The prosecution case was that there had been a longstanding enmity between the appellants and the complainant Badan Singh. Soney Lai appellant made a complaint against 18 persons including the deceased Karan Singh and Saheb Singh brother of the complainant Badan Singh under Section 70 of the Northern India Canal and Drainage Act and all the 18 persons were acquitted of the same (Ext. K. 27}. Smt. Gomti Devi sister-in-law of Badan Singh inherited Plot No. 260 situate in village Kunwarpur Bhatpura from her husband. This plot was entered in the name of Smt. Gomti and was situate near the house and chak of Soney Lai. Smt. Gomti transferred this plot to appellants Ganga Singh and Arjun Singh. Bhagwan Singh father of the complainant Badan Singh moved an application for mutation in his 'favour in respect of the plot alleging that Smt. Gomti had no interest in the plot after her remarriage. This application was dismissed. He filed a revision against the order of the Tahsildar which was also dismissed. Bhagwan Singh thereafter brought a suit under Section 299-B of the U. P. Zamindari Abolition and Land Reforms Act against Smt. Gomti. This suit was decided by compromise between them with the result that Plot No. 260 and some other lands were recorded in the name of Bhagwan Singh and another (Ext. Ka-30). There were proceedings under Section 145, Cr. P. C. in respect of the same plot in the Court of the Sub-Divisional Magistrate, Bhar-tana between Ganga Singh appellant and Badan Singh and his brother (Ext. Ka-32). Ganga Singh and Arjun Singh brought a suit against Smt. Gomti, Badan Singh and his brother for an injunction in the Court of Munsif, Etawah in respect of the plot. This suit was pending at the time of the occurrence.
3. On 11th Oct. 1973 Soney Lal wanted to pass through Plot No. 260 which had been in possession of Badan Singh with his plough and bullocks. Badan Singh objected whereupon there was an altercation between him and Soney Lai. Soney Lai went away saying that Badan Singh would not survive the night. In this respect Badan Singh has made a statement on oath,
4. On 12th October 1973 at 6.00 a.m. Badan Singh's field was being ploughed by Sukh Ram. Badan Singh left his house at 6.00 a.m. to supply Biris to his plough-man. While returning from the field Badan Singh happened to pass by the field of Karan Singh who was ploughing it. Badan Singh had a chat with Karan Singh. When he was returning home the appellants Soney Lai, Ganga Singh, Arjun Singh and Dangal Singh emerged from the grove of Ram Swarup, Soney Lai being armed with pistol and others with lathis. Seeing them Badan Singh took a turn and reached near Karan Singh. The appellants followed him. Ganga Singh exhorted his companions to kill him. Karan Singh challenged the appellants. Soney Lai, however, fired a shot from his pistol on Badan Singh, but Badan Singh took shelter behind Karan Singh and the shot hit Karan Singh. Karan Singh fell down in his field and died. Badan Singh thereafter ran towards his village. He was chased by the appellants. They overtook him near the north eastern corner of the grove of Ram Swarup. Ganga Singh, Arjun Singh and Dangal Singh beat him with lathis. Badan Singh fell down. Considering him dead the appellants went away.
5. The above version of the incident has been given not only by the injured Badan Singh but by witnesses Asha Ram (P. W. 2) and Ganga Ram (R W. 3). Ganga Ram is the brother of the deceased Karan Singh. Badan Singh is the complainant. He dictated a report to his son Sushil Kumar and sent it to Police Station Ekdil which is six miles away with Dalel Singh who submitted it there at 8.30 a.m. Badan Singh was later on taken to the police station on a bullock cart. He reached there at 10.55 a, m. He was sent to Etawah for examination of his injuries. His injuries were examined by Dr. P. C. Srivastava (P. W. 7) on 12th October 1973 at 12.35 p.m. Dr. Srivastava found the following 14 injuries on his person:
1. Lacerated wound 5 1/2 cm. x 1/2 cm. x skin deep on the left side of head 9 cm. above left ear.
2. Lacerated wound 4 cm. x 1/2 cm. x skin deep on the back side head 6 cm. behind injury No. 1.
3. Lacerated wound 4 cm. x 1/2 cm. x skin deep on the right side of the head 8j cm. above right ear.
4. Lacerated wound 1 cm. x 1/2 cm. x skin deep on the right side of the head 2i cm. x behind injury No. 3.
5. Lacerated wound 3 1/2 cm. x 1/2 cm. x skin deep on the front of forehead 6 cm. above the bridge of nose.
6. Lacerated wound 3 cm. x 1/2 cm. x skin deep on the front of the left side of forehead 24 cm x behind injury No. 5.
7. Contusion (red) 4cm. x 1 cm. on the back of left forearm 7 cm. above the back of wrist joint.
8. Tr. Swelling 9 cm. x 6 cm. on the dorsum of left hand.
9. Tr. Contusion (red) 7 cm. x 1 1/2 cm. on the back of right forearm 9 cm. below the elbow.
10. Tr. Contusion (red? 10 cm. x 2 cm. on the back of left scapula.
11. Tr. Contusion (red) 10 cm. x 2 1/2 cm. on the left deltoid muscle.
12. Abrasion contusion 6 cm. x 2 cm. on the back of left side of chest 4 cm, lat. to the inferior angle of scapula.
13. Lacerated wound 2 cm. x 1/2 cm. x skin deep on the front of upper 1/3 of right leg 7 cm, below the tibial tuberosity.
14. Lacerated wound 2 1/2 cm. 1 cm. x bone deep on the front of middle of right leg 3 1/2 cm. below injury No. 12.
The injuries were simple and were caused by some blunt weapon. They were fresh.
6. Post-mortem examination on the dead body of Karan Singh was conducted by Dr. Y. K. Dubey on 13th October 1973 at 3.30 p.m. He found multiple rounded gun shot wounds with lacerated and inverted margins In an area of 2 1/2' x 3 1/2' x chest cavity deep on the right side chest. The wounds were 1 1/2 above and medially from right nipple. Average size of each wound was 3/8' in diameter. Right side chest wall showed fracture of the second and third ribs. Right pleura was perforated. Upper part of right lung was perforated at several places. The pellets had entered left chest cavity perforating left pleura, left lung and were found lodged on the left side chest near the left axilla and downwards along the left axillary line. Death was due to shock and haemorrhage as a result of gun shot wounds.
7. The appellants pleaded not guilty. In their defence they examined Bhudeo constable who proved General Diary report No. 17 dated 7-4-1972 made by Chhabi Nath Singh, Head Moharrir on the basis of the report of Ganga Singh against Ganga Ram, Sahib Singh, Om Singh and others of committing theft. It had been probably filed in order to' prove enmity with Ganga Ram (P. W. 3), The trial Court has rightly pointed out that the identity of Ganga Singh in the report with the witness Ganga Ram (P. W. 3) is not established. As such this document is of no avail.
8. Learned Counsel for the appellants has contended that Badan Singh was not injured, that his injuries were fabricated, and that he was not even present. Badan Singh dictated the first information report of the incident. Soon after he sent the same with Dalel Singh and later on he himself reached there in a bullock cart. He stated that he sent the written report earlier because he apprehended that it could be delayed as the bullock cart may take longer, time to reach the police station. This explanation is quite plausible. Badan Singh reached the police station at 10.55 a. m. and from there he was sent to Etawah and his injuries were examined at noon the same day by Dr. P. C. Srivastava. There is a mention of the injuries in the General Diary at police station Ekdil also. Injuries of Badan Singh are noted on the reverse of the letter of request given to him at the police station. As such there can be no doubt as to his visiting the police station. Badan Singh has stated that he did not enter the police station, that his blood-stained clothes were taken by a constable outside the police station and that he was sent to the hospital from outside.
9. It was also pointed out that Dalel Singh who submitted the written report at the police station was not examined as a witness, that the first information report was made after considerable delay and it was the ante-timed and that Badan Singh's statement by the investigating officer was recorded in the evening at 7.00 p.m. It was not necessary at all to examine Dalel Singh. The prosecution has proved by direct as well as circumstantial evidence already mentioned that the first information report was made at the time it purports to have been made. Ramvir Singh (P. W. 4) said so. No suggestion was made to him that the special report was not sent to the authorities on that day soon after the first information report had been made. The investigating officer examined Badan Singh at the hospital and the delay was not inordinate,
10. It was further pointed out that Badan Singh was related to Sishupal Singh, the Head Constable of Police Station Ekdill, Badan Singh admitted that after the incident his daughter was married to the son of Sishupal Singh. It was, however, not put to the witness that his daughter had been engaged to the son of Sishupal Singh before the incident took place and and such Sishupal Singh was interested in him. We do not find anything on record to indicate that Badan Singh or Sishupal Singh abused this relationship.
11. Considering the injuries which were found by Dr. P. C. Srivastava on the person of the witness we are of the view that they could not be fake or fabricated. The witness being an injured person his presence at the scene of occurrence could not be disputed. There being a longstanding enmity between him and the appellants his testimony is to be taken into consideration cautiously.
12. Ganga Ram (P. W. 8) is the brother of the deceased Karan Singh, It is the case of the appellants that their relations with Karan Singh were cordial. Although the prosecution alleged that in 1967 Karan Singh was one of the accused in the Gool case but the appellants contended that after that case their relations with Karan Singh became cordial. If it is so the relations between the appellants and Ganga Ram must have been also cordial, Ganga Ram stated that he was joint with Karan Singh in cultivation and that he had gone to the field where Karan Singh was sowing Laha. The presence of the witness could not. therefore, be said unlikely. The defence pointed out that Ganga Singh made a report against the witness for committing theft but the witness stated that he had no knowledge of such a report. We have already pointed out that the identity of the witness with one of the accused mentioned in Ext. Kha-1 is not established and as such it cannot be held that there was some bad blood between the appellants and the witness Ganga Ram. It was also suggested in cross-examination that the witness was in the party against Ganga Singh and that Karan Singh was in the party of Ganga Singh. The witness repelled the suggestion. We are unable, therefore, to find anything on record to discard the testimony of Ganga Ram. He is a witness whose presence at the scene of occurrence was probable.
13. The testimony of Asha Ram was assailed on the ground that he was a chance witness, The witness stated that he was going to the flour mill situate in village Paini and that while he was passing through the grove of Ram Swarup and the fields of Karan Singh and Badan Singh on his way to flour mill he saw the incident. The witness admitted in cross-examination that Ganga Singh made a report against him, Sahib Singh, Raghunath, Vijai Singh and others in 1970 for the murder of Kailash. He also admitted that Ganga Singh appellant prosecuted a case between him and Naziran on behalf of Naziran, As such the relations between the witness and the appellants could not be happy. The witness admitted that the investigating officer came to the place of occurrence in his very presence yet his statement was not recorded by him on 12th Oct. 1973. He was interrogated at 4.00 p.m. on 13th Oct. 1973. Considering all these circumstances, therefore, we may ignore the testimony of this witness.
14. There is, however, no reason for disbelieving Ganga Ram and injured Badan Singh. We hold that Badan Singh was beaten by the appellants Ganga Singh, Arjun Singh and Dangal Singh with lathis and that Karan Singh died as a result of the shot fired by Soney Lai at Badan Singh.
15. It is next to be determined as to what offence the appellants have committed. Section 299, I. P. C. provides that
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
The section does not require that the offender should intend to kill or know himself likely to kill any particular person. It is enough if he 'causes the death' of any one by doing an act with the intention of causing death to any one. In other words there should be homicidal intention. It is immaterial as to who is killed. The person killed may be the person intended to be killed or someone else. The first illustration to the section makes it quite clear : 'A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads oh it, falls in and is killed. 'A has committed the offence of culpable homicide.'
16. The same may be gathered from illustration (b) to Clause (iv) of Section 300, I. P.. C. which says that where A without any excuse fires a loaded cannon into a crowd of persons and kills one of them, A is guilty of murder although he may not have premeditated design to kill any particular person.
17. It is also not necessary that the death should be caused by the action of the offender without contributory action on the part of the person whose death is caused or by some other person. That contributory action by the person whose death is caused will not necessarily prevent the act of the offender from being culpable homicide, even if the death could not have, occurred without such contributory action, is clear from the second illustration of Section 299, I. P. C. viz., A knows Z to be behind a bush. B does not know it. A intending to cause or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. A has committed the offence of culpable homicide.
18. Section 300, I. P. C. provides that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death and does not fall within certain specified exceptions.
19. Section 301, I. P. C. provides that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
20. Section 301, I. P. C. does not as already pointed out, enact any rule not deducible from Section 299 and Section 300, I. P. C. but it declares in plain language an important rule deducible from those sections just as an explanation to a section does., The rule could not well be stated as an explanation to either Section 299 or Section 300, Indian Penal Code as it relates to both. It was, therefore, most convenient to state the rule by means of a fresh section. The rule makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, .nor knew himself to be likely to kill, a rule which though it does not lie on the surface of Section 299 yet is deducible from the generality of the words 'causes death' and from the illustration to the section; and the rule then goes on to state that the quality of the homicide, that is, whether it amounts to murder or not, will depend on the intention or knowledge which the offender had in regard to the person intended or known to be likely to be killed or injured, and not with reference to his intention or knowledge with reference to the person actually, killed, a rule deducible from the language of Sections 299 and 300 though not, perhaps, lying on their very surface. The Public Prosecutor v. Suryanarayana Moorty (1912) 13 Cri LJ 145 (Mad); Emperor v. Jeoli (1917) ILR 39 All 161 and Ballan v. State 1955 Cri LJ 1448 (All).
21. It is next to be seen whether the principle of Section 34, I. P. C. can be made applicable to an offence contemplated by Section 301, I. P. C. Section 34, I. P. C. provides:
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
It has already been seen that what Section 301, I. P. C. provides is deducible from the provisions of Sections 299 and 300, I. P. C. and that Section 301 merely explains the import and scope of the sections. As such the expression 'in furtherance of the common intention of all' in Section 34, I. P. C. need not necessarily relate to the person actually killed. It is sufficient for the application of that provision that the 'common intention of several persons' contemplated therein is to commit culpable homicide irrespective of any specified person. In such a case each member shall be liable for the act resulting in murder or culpable homicide not amounting to murder as the case may be.
22. Applying the above principles to the present case we have no doubt that so far as Soney Lai is concerned he committed an offence under Section 302 read with Section 301, I. P. C. Apart from the longstanding enmity between him and Badan Singh he had an altercation with the latter a day before in which he told him that he would not survive the night. As such he had an intention to cause the death of Badan Singh and in fact he fired a shot on Badan Singh. Badan Singh warded it oft by slipping behind Karan Singh and Karan Singh was consequently injured, Soney Lai, therefore, was guilty of committing an offence under Section 302 read with Section 301, I. P. C.
23. So far as appellants Ganga Singh, Arjun Singh and Dangal Singh are concerned it does not appear that they intended to cause the death of Badan Singh. No doubt the two had an enmity with Badan Singh but in the incident which took place a day earlier they did not take part. They were not even present. The prosecution evidence is that all the four appellants came together, Soney Lai being armed with a pistol and others with lathis, Ganga Singh, Arjun Singh and Dangal Singh therefore, knew that Soney Lai was armed with a gun. But there is no material on record to indicate that Ganga Singh, Arjun Singh and Dangal Singh knew about the previous incident or about the particular intention of Soney Lai to kill Badan Singh. The fact that Soney Lai had a pistol may have led them to believe that he would use the weapon but not necessarily to kill Badan Singh, When all the appellants chased Badan Singh, according to Badan Singh, Ganga Singh exhorted them 'Maro Bachne Na Paye' which may mean that Badan Singh may be beaten, and that he may not escape. Asha Ram and Ganga Ram stated 'Mafo Nikalne Na Paye' which also signifies the same thing. As, such Ganga Singh, Arjun Singh and Dangal Singh wanted that Badan Singh be beaten and injured. Their common intention, therefore, with Soney Lai was not that Badan Singh should be killed. After Karan Singh had been killed by the shot fired by Soney Lai all the four appellants chased Badan Singh. He was beaten by Ganga Singh, Arjun Singh and Dangal Singh with lathis. Badan Singh sustained as many as six injuries on his head All these six injuries were skin deep and no damage was caused to any vital part of the body of Badan Singh, This circumstance also indicates that these three appellants intended to give a good thrashing to Badan Singh but they certainly did not intend to kill him. They did not, therefore, share the common intention to cause the death with Soney Lai and as such they could not be convicted of an offence under Section 392 read with Sections 31 and 34, I. P, C.
24. These three appellants as well as Soney Lai are further convicted of an offence under Section 307 read with Section 34, I.P.C. Since an intention to kill on their part is wanting they could not, therefore, be convicted of an offence under Section 307 read with Section 34, I.P.C. They merely committed an offence under Section 323 read with Section 34, I- P. C.
25. In respect of the injuries of Badan Singh, Soney Lai also committed an offence under Section 323 read with Section 34, I. P. C.
26. Criminal Appeal No. 2412 of 1971 is, therefore, partly allowed. The conviction of Soney Lai for an offence under Section 307 read with Section 34, I.P.C, is set aside and he is instead convicted of an offence under Section 323 read with Section 34, I.P.C. and he is sentenced to undergo rigorous imprisonment for one year. His conviction for the offence under Section 302 read with Section 301, I. P. C. and sentence of imprisonment for life are maintained. Both the sentences shall run concurrently. He is in jail. He shall remain there to serve out the sentence.
27. Criminal Appeal No. 2042 of 1974 is also partly allowed. The conviction of the appellants Ganga Singh, Arjun Singh and Dangal Singh for the offence under Section 302 read with Section 301 and Section 34, I. p. C. and the sentence of imprisonment for life are set aside. The conviction of these appellants for the offence under Section 307 read with Section 34, I. P. C. and the sentence of rigorous Imprisonment for 7 years are also set aside. They are instead convicted of an offence under Section 323 read with Section 34, IPC. and are sentenced to undergo rigorous imprisonment for one year. They are on bail to which they shall surrender. They shall be taken into custody to serve out the sentence awarded by us. Their bail bonds are cancelled and sureties are discharged.