1. This is an appeal by two persons (1) Deoji son of Moti and his son (2) Gobriya s/o Deoji both of whom have been convicted on the charge of murdering one Nurjia, on 14-1-1952 and sentenced to suffer rigorous imprisonment for life and to pay a fine of Re. 1/- only.
2. The facts of the prosecution case are as follows: About a week before the date of occurrence, the deceased Nurjia and his friends beat one Mathuri, the wife of appellant No. 1 and the mother of appellant No. 2. This, it is alleged, created bad blood between the deceased and the appellants and constituted a motive for the crime. On 14-1-1952 the appellants and certain other persons including the deceased Nurjia had been to Zaknawada to make their weekly purchases. There all of them drank liquor before they returned in the evening. The appellants started ahead accompanied by one Kodriya and it is alleged that in the way they concealed themselves behind a temple of Shri Hanuman & lay in wait for Nurjia to arrive. When he reached the place the appellants and Kodriya beat him with stone and sticks. Several injuries were caused to Nurjia and as a result thereof he succumbed on the spot.
3. P.W. 5 Datiya, a friend and a companion of the deceased, informed Raichand, Nurjia's father who on going to the spot found his son dead. The First Information Report of the occurrence was lodged at about 2 a.m. on the morning of 15-1-1952 by Raichand. The appellants and Kodriya were arrested and after the investigation was complete, were put up for trial. The accused Kodriya was discharged by the committing Magistrate as no prima facie case was made out against him, whereas the appellants were committed to the Sessions Court for standing their trial. The learned Sessions Judge, Ratlam, found the accused guilty Under Section 302, IPC and sentenced them both as stated above.
4. Mr. J. D. Patel for the appellants and the Government Advocate for the State were heard.
5. The appellants have denied the whole Incident but there is the evidence of P.W. 5 Datiya, P.W. 12 Hamriya, P.W. 13 Nagla and P.W. 14 Nanda, which proves that both the accused had beaten the deceased Nurjia with sticks somewhere near the Hanuman temple at Bherupada. The evidence is corroborated by the fact that the deceased Nurjia was found lying dead near the temple and there were numerous injuries on his body which could have been caused by some hard and blunt substance like a stick. (After further considering the evidence his Lordship concluded:) It is thus proved from the evidence of prosecution witnesses t.hat the appellants beat the deceased Nurjia with sticks and that the injuries on the head were caused by the appellant Dewaji. The appellant Gobriya and Kodria also beat the deceased with sticks but the part of the body where the blows were struck is not located by the prosecution witnesses.
6. Dr. Keshavdas Trivedi performed the postmortem examination on 16-1-1952 and discovered 6 injuries besides nearly 15 bruises on the various parts of the body. The six injuries noted by the doctor are:
1. Lacerated wound Just above the left eyebrow 2 1/2'x1/2'x1/6
2. Lacerated wound 2' above the left ear
3. Lacerated wound 2' behind wound No. 2 2'x1/4'x1/4'
4. Lacerated wound one inch below the left eye 2'xl/3'xl/6'
5. Lacerated wound l'x1/4'xl/6' behind left ear
6. Horizontal tear 1' in left ear at its middle.
On internal examination the doctor noticed that the left lobe of the brain was lacerated 2'x1 1/2' and that there were blood clots on the upper surface. According to Dr. Trivedi the death was due to shock which resulted from the injuries and laceration of the brain. He was further of the opinion that the injuries number 1 and 2 were responsible for the laceration of the brain. But he has also stated that the injury number 1 was by itself not sufficient, in the ordinary course, to cause death.
7. Mr. Patel, the learned Counsel, therefore contended that if the appellants are held to have assaulted and beaten the deceased Nurjia, they could be found guilty Under Sections 304 and 323, IPC respectively. He submitted that each of the appellants will have to be dealt with on the footing of the acts proved to have been committed by him and there could be no punishment inflicted in this case on the ground of vicarious liability by reason of Section 34 or Section 107, IPC
8. It is true that there is no charge framed against the appellant Under Section 34, IPC nor is there any question put to the appellants to indicate that they shared any common Intention or even had any common object. All that is put to the accused is that each had Intended t beat the deceased in order to avenge what, he had done to Mathuri. This only shows that the case which each of the accused was called upon to meet was a case of similar intention as distinguished from the common intention. This is a distinction of fundamental importance is suo cintly brought out by Sir Madhavan Nair in the case of - 'Mahbub Shah v. Emperor' AIR 1945 PC 118 (A). In my opinion there is neither any proof of conspiracy or pre-meditation to kill Nurjia nor is there any other evidence of common intention. The accused have also not been given any notice either by framing a charge Under Section 34, IPC or by putting the necessary question in their examination Under Section 342, Criminal P. C, that this was the case of the prosecution which they had to meet. In ray opinion there could be no punishment given to the appellants on the ground of any vicarious liability. Each of the appellans could be convicted and punished for what was actually done by him.
9. It was, however, contended on behalf of the prosecution that the appellants were lying in wait for Nurjia at the Hanumanji's temple at Bherupada. The learned Sessions Judge has believed the prosecution witnesses on this point. This evidence consists of the statement of P. W, I. Datiya, P.W. 12 Hamriya, P.W. 13 Nagla. P.W. 14 Nanda. It appears in the deposition of P.W. 14 Nanda that the aforesaid Hanumanji's tempi is only Chabutra and the appellants were visible to them from a distance of about 20 feet. It is a common ground that the appellants and the eyewitnesses examined by the prosecution were drunk. P.W. 13 Nagla, who was the first to reach the Chabutra, was attacked and beaten by the appellants and Kodria. Nurjia, the deceased was about 15 paces behind him and when he reached the place where Nagla was being beaten the appellants said 'the enemy has come' and started belabouring him. I think the appellants were drunk and the trouble started as a drunken brawl. Seeing Nurjia the appellants remembered the incident of beating Mathuri and they beat him rather mercilessly. Under the circumstances it is not possible to believe that the appellants were lying in wait for Nurjia or had planned or intended Mb murder. Section 34 has no application to this case and the appellant must be punished only for what they are found to have done.
10. No injury caused by the appellants is by itself proved to be sufficient, in the ordinary course of nature, to cause death and death has occurred due to shock as a result of the injuries ind laceration of the brain caused by injuries 1 Hid 2. It does not appear to me that the appellants either intended to cause death or bodily injuries which were sufficient in the ordinary course .-.o cause death and the conviction of the appellants Under Section 302, IPC cannot be supported.
11. It cannot at the same time be disputed that the appellants gave lathi blows on the had of the deceased and caused him injuries on the head which resulted in the laceration of the brain and death of Nurjia. Though it is not proved that anyone of these injuries was sufficient in the ordinary course to cause death, it cannot be ignored that the blows with stick were given on the head and the appellant must be presumed to have known that he would thereby cause injuries which were likely to cause death. The act of the appellant Dewaji would in any event fall within the ambit of Section 304, Part II, IPC
12. The other appellant is proved to have beaten the deceased and though the injuries are not serious, he cannot escape punishment for what he is proved to have done. Accordingly I find him guilty of an offence Under Section 323, IPC
13. The result is that both the appellants are acquitted on the charge of murder and their sentence Under Section 302, IPC is set aside. The appellant Dewaji is found guilty Under Section 304 Part II and sentenced to rigorous imprisonment for 5 years. The appellant Gobriya is convicted for an offence under Section 323, IPC and sentenced to rigorous imprisonment for one year. The term of imprisonment of the appellant Gobriya has expired and he shall therefore be released forthwith. With this modification the appeal is dismissed.
14. I agree.