P.N. Goel, J.
1. Both these appeals are directed against the order dated 2-2-1976 passed by the Ist Additional Sessions Judge, Etawah in S. T. No. A 234 of 1975. Misri Lal, Mahesh Chand, Sadhu Singh and Lalloo Singh were convicted under Section 304, Part II I.P.C. and given benefit of Section 4 of the U.P. First Offenders Probation Act in view of the provisions of Section 361 of the Criminal P. C, 1973.
2. The occurrence took place on 7-11-1972 at about 1 P. M. within the limits of Nagla Bhawan, hamlet of Pali Khurd, police station Bhartana, District Etawah some cattle belonging to Misri Lal, Mahesh Chand, Sadhu Singh, sons of Jahar Singh. D. W. 4 and Lalloo Singh, son of Johari Singh, residents of Nagla Ajai, hamlet of village. Bhanpur, police station Bhartana, district Etawah, were grazing the Laha field of Man Singh, uncle of Amar Singh, P. W. 2, native of Pali Khurd. Man Singh and Amar Singh were harvesting bajra crop from their field just to the north of the field having Laha. On seeing that the cattle were grazing recently sown Laha crop, they came up and drove the cattle towards south. They reached in the field of Sadan Singh where Misri Lal, Mahesh Chand, Sadhu Singh and Lalloo Singh were relaxing. These 4 parsons had lathis. Instead of taking away their cattle they assaulted Man Singh and Amar Singh with lathis because they were carrying the cattle towards the pound. Thereafter they took away their cattle. It is apparent that the marpeet took place in the field of Sadan Singh. As a result of the injuries sustained Man Singh became unconscious. He was taken to his house on a cot. Amar Singh wrote a report at his house. Then he Proceeded to the police station along with injured unconscious Man Singh. On reaching police station which is 3 or 4 miles away at 4-15 P. M. Amar Singh lodged his report. The police then sent both the injured to Bhartana hospital for the examination of their injuries.
3. Dr. S. C. Gupta, P. W. 1, first of all examined Amar Singh at 4-30 P. M. and found following simple injuries on his person:
1. Lacerated wound 3/4' x 1/4' x scalp right side 2' from hair line.
2. Lacerated wound 1 1/2' x 1/4' x (scalp deep on back of scalp left side 3' above and behind left ear.
3. Abrasion 1/4' x 1/2' on left side forehead 1/2' above left eyebrow.
4. Abrasion 1/1.0' x 1/10' on back of left wrist joint.
4. Dr. S. C. Gupta examined Man Singh next at 4.45 P. M. and found following injuries on his person:
1. Lacerated wound 2' x 1/2' probing not done as general condition of the patient was very poor. On middle of scalp 4' above midline.
2. Lacerated wound 1. 1/2' x1/2i' probing not done on left side scalp 5' above left ear.
3. Lacerated wound l' x 1/10' probing not done 1 1/4' above left ear.
4. Lacerated wound 3/4' x 1/4' probing not done on left side scalp 1/2' below injury No. 3.
5. Lacerated wound 1. 1/4' x 1/2' muscle on left side face 1' on the left angle of lip.
6. Traumatic swelling 4. 1/2' x 4' on left arm, left elbow joint.
5. Man Singh was taken to the District Hospital Etawah where he died. Brijendra Vir Singh, S. I. P. W. 10, attached to the police station Kotwali, Etawah Held inquest on the dead body on 10-11-1972 at 9-30 A. M. On the same day at 4 P. M. Dr. Sheo Kishore Sharma, P. W. 11, conducted post-mortem examination on the dead body. He found following ante-mortem injuries:
1. Lacerated wound l' x 3/8' bone deep on the left side of head 4' above the left ear.
2. Lacerated wound 1. 3/4' x 1/8' on the middle of the head direction of wound anterior to posterior.
3. Lacerated wound 3/4' x 3/8' scalp deep on the left side of the head 1/2' above the left ear.
4. Lacerated wound 3/4' x 1/8' scalp deep on the left side head 1/2' above injury No. 3.
5. Abrasion 3/8' x 1/8' on left temple 1' above the left eye brow.
6. Abrasion 1/2' x 1/4' on the back of right thigh.
7. Abraded contusion 3/4' x i' medial surface of the right elbow joint.
6. On opening the skull, frontal, both parietal and occipital bones were found fractured. Left parietal bone was badly fractured.
7. Prakash Chandra Srivastava, S. I, P. W.13, investigated into the case. He found blood in the field of Sadan Singh.
8. Misri Lal and others (hereinafter called the appellants) did not admit the allegations of the prosecution. Misri Lal, Mahesh Chand and Lalloo Singh asserted that they were not present at the time of occurrence. Sadhu Singh took the plea that Man Singh and Amar Singh were grazing their cattle in his field, that he was driving their cattle out and that therefore Man Singh with a dolsara and Amar Singh with a lathi caused injuries to him. In self defence he assaulted them.
9. On facts the prosecution examined Amar Singh, Atar Singh and Mahavir Singh, P. Ws. 2 to 4. No witness on facts was examined by the appellants. The appellants, however, examined Harnam Singh, Record Keeper, Police Department, Narain Singh Yadav, Pharmacist, Dr. S. N. Srivastava and Jahar Singh Dr. S. N. Srivastava, Medical Officer, District Hospital, Etawah, proved the following injuries of Sadhu Ram which he found on his person on 11-11-1972 at 10-30 P. M.:
1. Incised wound 2.5 cm x 1/6 cm skin deep slanting 2.5 cm above left eyebrow.
2. Incised wound 2 cm x 1/6 cm skin deep vertical on outer back of left arm middle 1/3.
3. Contusion 2 cm x 1 cm on back of left thumb.
4. Traumatic swelling 3 cm x 2 cm on left calf.
5. Contusion 6 cm x 1 cm slanting in right side of back lower 1/2.
6. Traumatic swelling 2 cm x 2 cm on top of head.
7. Hard scabbed abrasion 1/2 cm x 1/2 cm on left scapula.
10. The above injuries were simple and caused about 4-5 days back.
11. Jahar Singh is father of appellants 1 to 3. He stated that the facts of the occurrence were told to him by Sadhu Singh and the witnesses, that thereafter he sent an application to the Superintendent of Police first on 8-11-1972 and another application on 11-11-1972 (copy Ex. Kha. 1).
12. Harnam Singh, D. W. 1, stated that he could not find the alleged application dated 8-11-1972 of Jahar Singh. Narain Singh Yadav, D. W. 2, simply brought the Injury Register of the District Hospital, Etawah. Injuries of Sadhu Ram (Singh) appellant, were recorded by Dr. S. N. Srivastava in this Register.
13. On an appraisal of the evidence of the parties, the learned Additional Sessions Judge came to the conclusion that the occurrence took place in the manner alleged by the prosecution and not in the manner alleged by Sadhu Singh, appellant. He further held that the intention of the appellants was not to cause death of Man Singh because there existed no enmity between the parties from before and that as the 4 appellants caused injuries, correctly speaking fatal injuries, on the head of Man Singh, the appellants were guilty of an offence punishable under Section 304, Part II, I.P.C. because they must be knowing that the head injuries could result in the death of Man Singh. The Additional Sessions Judge referred to the case of Shri Krishan v. State of U.P.,1973 SC Cri R 76 corresponding to : 1972CriLJ1313 .
14. Learned counsel for the parties have been heard at length and the entire record has been perused carefully with their assistance.
15. So far as the manner of occurrence is concerned, we have not the least doubt that the occurrence took place in the manner alleged by the prosecution and that it did not take place in the manner stated by Sadhu Singh. According to the application dated 11-11-1972. Ex. Kha. 1, sent by Jahar Singh to the Superintendent of Police, the fields of the appellants are in village Sarai Chauri, that the cattle of Man Singh and Amar Singh caused loss of bajra crop worth Rs. 25/- and that when Sadhu Singh tried to take away the cattle towards the pound, he was assaulted by Man Singh and Amar Singh. We find that the Investigating Officer found blood in the field of Sadan Singh where according to the prosecution Man Singh and Amar Singh were assaulted and Man Singh had fallen down on receiving fatal injuries. There is absolutely no material on record to indicate that the fields of the appellants are close to the field of Sadan Singh. There is abosolutely no suggestion to the prosecution witnesses that the occurrence took place at the field of the appellants in village Sarai Chauri. Another thing worth noticing is that Jahar Singh himself did not see the occurrence. According to him he first of all sent an application to the Superintendent of Police on 8-11-1972. There is absolutely no paper to show that he did send an application to the Superintendent of Police on that day. There is no record to show that such an application was received in the office of the Superintendent of Police on or about 8-11-1972. Jahar Singh has not filed a copy of THE SAID APPLICATION. He has filed a typed copy of the application dated 11-11-1972. It is not understood as to why he did not keep a typed copy of his application dated 8-11-1972. Moreover, no secondary evidence has been given by the appellants in respect of the contents of the alleged application dated 8-11-1972. Even Jahar Singh has not verbally given out the contents of the said application. In these circumstances, it is obvious that Jahar Singh is telling a lie that he had given an application to the Superintendent of Police on 8-11-1972.
16. In this connection it has to be remarked that if really the occurrence took place in the manner alleged by Sadhu Singh, he should have got his injuries examined by any Doctor on 7-11-1972. or 8-11-1972. It passes beyond comprehension that he got his injuries examined on 11-11-1972 late in the night at 10-30 P. M. Statement of his father Jahar Singh shows that after the occurrence he (i. e. Sadhu Singh) conveniently went away to the place of his relation.
17. The above facts clearly indicate that the occurrence did not take place in the manner alleged by the defence. Another fact which goes against the defence version is that in his statement under Section 313 Cr. P.C. Sadhu Singh did not explain the injuries of Man Singh and Amar Singh. It may be recalled that according to the appellants, Misri Lal, Mahesh Chand and Lalloo Singh were not present at the time of occurrence. Sadhu Singh gave out his age as 22 years in December, 1975 when the case was tried by the Additional Sessions Judge. At the time of occurrence Man Singh was aged 40 years and Amar Singh aged about 25 years. In case Man Singh and Amar Singh were committing an illegal act by getting the bajra crop of the appellants grazed by their cattle and they had lathis, they would have caused severe injuries to Sadhu Singh and that event Sadhu Singh alone c could not have caused severe and serious injuries to Man Singh and Amar Singh.
18. The position that easily follows is that the defence version is wholly untrue and cannot be believed. To us it appears that Sadhu Ram (Singh) and his father got injuries fictitiously recorded by Dr. S. N. Srivastava late in the night of 11-11-1972.
19. We further notice that there was not previous enmity between the parties. Therefore, there seems no reason as to why Amar Singh would falsely implicate the appellants. The occurrence undisput-edly took place at noon time in broad day light. Amar Singh could not have made any mistake in respect of the identity of the assailants. His testimony is fully supported by Atar Singh and Mahavir Singh. These two witnesses have also no axe to grind by perjuring against the appellants Atar Singh is a labourer. On the date and time of occurrence he was working in the field of Sadan Singh. He was cleaning the Laha field of Sadan Singh, Mahavir Singh had brought his cow to meet with a bullock. Therefore, he had gone in the Osar land and was talking to his brother Jaivir Singh. At that time Man Singh and Amar Singh passed by him driving the cattle of the appellants. Then he heard the shrieks and saw the appellants assaulting Man Singh and Amar Singh. The testimony of Amar Singh is further supported by the first information report lodged at the police station. The testimony also gets support from the statement of Prakash Chandra Srivastava, Investigating Officer, who found blood in the field of Sadan Singh where according to the prosecution Man Singh and Amar Singh were assaulted. Thus the manner of occurrence alleged by the prosecution is established beyond doubt.
20. Sri P.C. Chaturvedi, senior Advocate, appearing for the appellants could not show any reason for not accepting the finding of the court below that the occurrence took place in the manner alleged by the prosecution.
21. Sri P.C. Chaturvedi, however, contended that in the instant case the appellants could be convicted under Section 325, I.P.C. and not under Section 304, part II. It is undisputed that there was no enmity between the parties from before the occurrence. On the date of occurrence the cattle of the appellants were grazing in the Laha field of Man Singh and Amar Singh. Man Singh and Amar Singh were harvesting their bajra crop just to the north of the Laha field. Obviously, therefore, they would drive the cattle out of their Laha field. The evidence shows that they asked the appellants to take away, their cattle; but they paid no heed. Therefore, they were carrying the cattle of the appellants towards the pound. They had crossed Nala and had reached the field of Sadan Singh. The appellants were sitting there with lathis under a tree. The appellants then came up and surrounded Man Singh and Amar Singh and began to assault them. The evidence of the prosecution witnesses and the first information report does not indicate specifically that all the 4 appellants assaulted Man Singh. The evidence of the prosecution witnesses and the first information report does not specifically indicate as to which of the appellants caused injuries to Amar Singh. It is undisputed that Man Singh and Amar Singh were assaulted with lathis. In these circumstances it is obvious that the intention of the appellants was to take away their cattle and in not doing so to assault Man Singh and Amar Singh with lathis. Lathi can cause simple injury. Lathi can cause grievous injury. Lathi can also cause fatal injury. In the instant case we notice that there were two lacerated wounds on the scalp of Amah Singh. Both these lacerated wounds were simple in nature. In these circumstances simply because Man Singh was assaulted with lathis, it cannot necessarily be said that the appellants had an intention to cause death of Man Singh or to cause such bodily injuries as were likely to cause his death. In this aspect of the matter we are clearly of the opinion that the appellants cannot be held guilty of the offence punishable under Section 302 I.P.C. No doubt the appellants were charged for having committed an offence punishable under Section 302, I.P.C. The learned State counsel could not urge before us that in the circumstances of the case, the appellants were guilty of an offence punishable under Section 302 read with Section 34, I.P.C.
22. Next question which has to be considered is whether the appellants are guilty of an offence of culpable homicide not amounting to murder punishable under Section 304, part I or II. The first part of Section 304 I.P.C. punishes the person/persons who caused injuries with the intention of causing death or caused such bodily injury as is likely to cause death. The 2nd part of this section punishes the person/persons who caused injuries with the knowledge that it is likely to cause death or caused such bodily injury as is likely to cause death. For making part I applicable there should be positive intention to cause such injury as is likely to cause death. For making part II applicable, intention is not necessary and that there should simply be knowledge to cause such injury as is lakely to cause death. In the present case Dr. Sheo Kishore Sharma found 4 lacerated wounds on the scalp of Man Singh. These 4 injuries were in fact responsible for the death of Man Singh. These injuries caused fracture of fronsal both parietal and occipital bones of the skull of Man Singh. If a person causes injury on the head, it is normally believed that he must have knowledge that the head injury would/might prove fatal. If we look to the 4 lacerated wounds found on the scalp of Man Singh, then we can easily hold that the offender/offenders is/are guilty of an offence punishable under part II of Section 304. But there is an unusual feature appearing in the case. It is this that the evidence of the prosecution witnesses and the facts stated in the first information report do not necessarily state that all the 4 appellants had caused injuries on the head of Man Singh. On the other hand there is positive allegation in the first information report that the 4 appellants immediately came up and surrounded Man Singh and Amar Singh and began to assault them with lathis. As stated above there is no specification in the evidence led by the prosecution as to which of the appellants caused injuries to Amar Singh and which of the appellants caused injuries to Man Singh. In this connection it is useful to point out that Amar Singh had one lacerated wound on the right side of his scalp (vide injury No. 1) and he had another lacerated wound of the left side of his scalp (vide injury No. 2). On the head of Man Singh 3 lacerated wounds were on the left side of his scalp (vide injuries Nos. 1, 3 and 4 of the post mortem report) and one lacerated wound on the middle of the head (vide injury No. 2 of the post mortem report). The lacerated wounds found on the persons of Amar Singh and Man Singh coupled with the recitals of the first information report that all the 4 appellants surrounded Man Singh and Amar Singh and simultaneously opened assault on them, it appears to us that one of the appellants was to the right of Amar Singh, 2 appellants were on the left side of Man Singh and Amar Singh and one assailant was in front of Man Singh. In this situations it is evident that Man Singh was assaulted by at the most 3 appellants and not by all the 4 appellants. The evidence of the prosecution does not indicate as to which of the 3 appellants actually assaulted Man Singh and which of the 4 appellants did not assault Man Singh.
23. At this stage we would refer to the case of Shri Krishan v. State 1972 Cri LJ 1313 (SC) (supra). In this case Shri Krishan, Ram Bali, Jai Shri and Jattan i.e. persons caused injuries to Sheru and Sadaphal with lathis. On account of the injuries sustained Sheru died. There was only one injury on the top of his head which took his life. The other injuries were not fatal. It was not known as to which of the assailants had caused the fatal injury on the head, the main occurrence was preceded by a minor occurrence between the boys. Hence Shri Krishan and 3 others came up with lathis and belaboured Sheru and Sadaphal, The 4 assailants were convicted by the trial judge under Sections 302/34 and 323/34 I.P.C. Their conviction was maintained by the High Court. The High Court recorded a finding to the effect that there could be no doubt that the common intention of the appellants was to give a severe beating to Sheru and Sadaphal. The Supreme Court approved of the finding and observed (para 6):
The above finding as well as the broad circumstance, of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other 3 are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the 4 accused can only be guilty of the offence under Section 325 read with Section 34 Indian Penal Code. We accordingly alter the conviction of each of the accused-appellants from under Section 302 read with Section 34 Indian Penal Code to that under Section 325 read with Section 34 Indian Penal Code.
24. In the instant case before us as said above there is no evidence worth the name as to which of the 4 appellants caused injuries, correctly speaking fatal injuries on the head of Man Singh. In this aspect of the matter we are clearly of the opinion that each of the 4 appellants is guilty of an offence punishable under Section 325 read with Section 34 I.P.C. and that therefore Part II of Section 304 I.P.C. is not applicable to (he case notwithstanding the fact that the lathi injuries were on the head of Man Singh. For this conclusion the prosecution is obviously responsible. Amar Singh who received injuries in the occurrence could easily indicate in the first information report as to which of the 4 appellants had actually caused injuries on the head of Man Singh. Moreover, he could disclose so in his statement on oath. Had he done so, the appellants who actually caused injuries' on the head of Man Singh could be convicted under Section 304, Part II I.P.C.
25. For what has been discussed above Sri P.C. Chaturvedi has rightly contended that the appellants could be convicted under Sections 325/34 I.P.C. and not under Sections 304 Part 11/34 I.P.C.
26. The learned Additional Sessions Judge has given benefit of Section 4 of the U.P. First Offenders' Probation Act, 1938 in view of the provisions of Section 361 of the Criminal P. C, 1973. On an examination of the relevant provisions of the Code, we are of the opinion that the learned trial judge has committed no error in giving benefit of Section 4 of the U.P. First Offenders' probation Act, 1938 to the appellants. Section 360(1) of the Code lays down that when any person under 2l years of age is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against him, the Court, regard being had to the age, character, antecedents of the offender and to the circumstances in which, the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding' 3 years) as the Court may direct and in the meantime to keep the peace and be of good behaviour. The application of Section 360 in U.P. was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the U.P. Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 Of the Amending Act No. 16 of 1976 amended Section 484 of the Code and inserted the following Clause (e) after Clause (d):
(e) ...the United Provinces First Offenders' Probation Act 1938....shall continue in force in the State of Uttar Pradesh ...and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State.
27. Section 361 lays down that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.
28. It follows from this provision read with Clause (e) of Section 484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the U.P. First Offenders' Probation Act, 1938.
29. It appears that at the time of occurrence Mahesh Chand, appellant was aged about 17 years, Sadhu Singh aged about 19 years, Misri Lal about 22 years and Lalloo Singh about 23 years. They were all young men. There was no previous conviction to the credit of the appellants.
30. The learned trial Judge observed: 'In view of the provisions of Section 361 Cr. P.C. which makes it obligatory for the court to extend the benefit of the Probation Act, unless there is reason not to extend the said benefit, the accused persons deserved to be granted the benefit of Section 4 of the U.P. First Offenders Probation Act because there is nothing on record which may go to show that the accused have been previously convicted or even tried for any other offence. The present occurrence took place suddenly when the cattle of the accused were driven away by the side of the complainant. The accused persons are, therefore, allowed the benefit of Section 4 of the U.P. First Offenders' Probation Act.
31. Taking into consideration the facts of the present case, relevant provisions of the Code and the ages of the appellants, we are of the opinion that the Additional Sessions Judge has committed no error in giving benefit of Section 4 of the U.P. First Offenders Probation Act, 1938. The learned State Counsel has not been able to show that the trial Judge was wholly in error in giving benefit of Section 4.
32. No other point was urged by the parties counsel. For the view of the case taken by us we are of the opinion that the Government appeal is without merit and that the appeal preferred by Misri Lal and others requires a little modification in this way that the conviction of the appellants has to be altered from Sections 304, Part 11/34 I.P.C. to one under Section 325/34 I.P.C.
33. Criminal Government Appeal No. 87l of 1976 is dismissed. Notices and bailable warrants issued to the 4 respondents are discharged.
34. Criminal Appeal No. 1211 of 1976 is also dismissed (except with the modification that the conviction of the 4 appellants is altered from Sections 304, Part II/34 I.P.C. to one under Section 325/34 I.P.C. The order of the court below in respect of giving benefit of Section 4 of the U.P. First Offenders Probation Act 1938 to the 4 appellants is maintained.
35. The appellants' counsel informed that the bonds under Section 4 have already been furnished by the appellants in the court below.