P.V. Balakrishnarao, J.
1. The appellant Nakafodi alias Jadumani Parikha who was the first accused in the Court below was convicted by Shri R.C. Misra, Sessions Judge, Cuttack-Dhenkanal for murder punishable under Section 302 I. P. C. and was sentenced to imprisonment for life. He was tried along with his brother Lakshmidhar Parikha, but the learned Sessions Judge acquitted Lakshmidhar.
2. Both the accused were charged under Section 302/34 I. P. C. for having, in furtherance of their common intention knowingly and intentionally, caused the death of one Judhisthir Misra on 6-7-1955. Both of them were also tried on charges under Section 302 I. P. C. the appellant for intentionally causing the said death by striking him on his neck with a Katari (M. O. I) and Lakshmidhar by striking him on his buttock with a Farsa (M. O II). Lakshmidhar was further charged under Section 324 I. P. C. for causing hurt to Gobar-dhan Misra (P. W. 42), the son of the deceased, at the time of the occurrence. The learned Sessions Judge acquitted Lakshmidhar of the charge mot only under Section 302/34 I. P. C. holding that there was no common intention, but also of the charge under Section 302 I. P. C. holding that it was not certain whether the blow given by him with the Farsa was given before the death of the deceased or after his death. With regard to the charge under Section 324 I. P. C. against Lakshmidhar for causing hurt to P. W. 42, the learned Sessions Judge acquitted him holding that the injury was caused in exercise of the right of private defence of body.
3. The prosecution case is briefly as follows. An agnatic Bhanji of the deceased Judhisthir Misra was kept by the appellant without any regular form of marriage on account of which the villagers socially boycotted him. The two accused had another natural brother Nilmani who was given in adoption in Keonjhar District and who is also the husband of the sister of P. W. 19. Nilamani demanded a share from the accused in their ancestral properties and in a Panchayat in which the deceased was a member it was decided that the accused should five a share to Nilmani, An anabadi piece of land belonging to the deity of the village was in occupation of the deceased. The land had a wide -ridge on which the appellant had grown red-gram on account of which there used to be frequent quarrels between him and the deceased ver the cutting of earth from this ridge and there was a quarrel on account of this when the appellant pushed the deceased. On account of these circumstances, according to the prosecution, relation between the appellant and the deceased had been strained. This bitterness was aggravated a day before the occurrence when a pair of bullocks belonging to the appellant grazed the crops of the deceased in presence of P. W. 15 the temporary Mulia of the appellant. P. W. 42, the son of the deceased, detected it, ran to the spot, drove the bullocks and flung vulgar abuses at the appellant. Next morning, P. W. 15 the Mulia refused to take the bullocks for grazing due to that incident. It is stated, the appellant therefore was wild with P. W. 48 & early in the morning at P. W. 19's shop on the date of occurrence he questioned the deceased as to the propriety of the conduct of his son in flinging such abuses at him in his absence instead of impounding the cattle. There was some quarrel between them. Thereafter the deceased and his son went to their fields and their servant (P. W. 20) who had gone in advance was ploughing. The deceased began transplanting paddy seedlings and at a distance of about 9 to 10 Kiaris further up P. W. 42 was irrigating the lands. It is alleged by the prosecution that the appellant with a Farsa in hand proclaiming that he would slay the deceased and put on a Chitan his forehead with his blood, rushed through the villape and that P. Ws. 10 and 11 dissuaded and P. W. 11 brought the appellant back to his house.
A little later, the appellant rushed out of Ms house with a huge Katari (M. O. I) in hand followed by his brother Lakshmidhar with a Farsa (M. O. II), both proclaiming as aforesaid.
From a distance, they called upon P. W. 42 to pray his Ista Debata (favourite deity) and call upon his father. It is stated that being afraid of this challenge, P. W. 42 ran towards his father while the two accused were still proceeding towards him. The unarmed deceased and his son with a lathi then advanced towards the accused and both parties met at Padan Misra's land, when the appellant Nakafodi gave a Katari blow on the deceased, in consequence of which the deceased fell down. P. W. 42 dealt a lathi blow on Nakafodi.
They caught hold of each other and struggled. In the meanwhile Lakshmidhar gave a Farsa blow on the buttock of the deceased and another blow on P. W. 42 on his right shoulder blade. During the struggle, the Katari from the appellant's hand had slipped. The appellant picked it up and chased P. W. 42 up to some distance and then returned via Matia Pokhari (the village tank) to the village and proceeded immediately to the Dharmasala Police Station with a lathi (M. O. V) where he lodged information at about 3 P. M. The investigating Officer made a station diary entry (Ex. 9) and drew up formal First Information Report (Ex. 10), in a line with it. At about 5 P. M., the Duffadar of the village produced Lakshmidhar at the Police Station along with P. W. 42. The Investigating Officer arrested both the accused and seized the bloodstained cloth of Nakafodi and the lathi held by him. The appellant had a simple lacerated injury on the left side of his forehead and a bruise on the middle of the left forearm on ulhar aspect (vide Ext. 3 the injury certificate) and P. W. 42 had a simple incised injury on his right scapular region of the back (vide Ext. 2 the injury certificate). The Investigating Officer came to the village and seized from the house of the appellant, as pointed out by the latter, the blood-stained knife, the Farsa and a small Tangi with which he had been armed at the time of the quarrel at the door of P. W. 19. From Padan Misra's land near the dead body, he seized a lathi (M. O. IV).
4. The medical Officer (P. W. 41) conducted the post-mortem examination on 8-7-55. The deceased had an incised wound on the left side of the jaw cutting the bone at the angle severing the jaw above the 3rd molar and one incised wound on the left buttock almost horizontal with the tail outwards. The jaw had been completely severed. The Medical Officer opined that the first injury could have been caused by a Katari like M. O. I and the second by a Farsa like M. O. II. According to the Medical Officer, the first injury was a grievous one and sufficient to cause death which might have been instantaneous and the second injury was simple and insufficient to cause death. In saying that the second injury was simple and insufficient to cause death according to the oost-mortem report (Ex. 8), the learned Sessions Judge committed an error of record. It is only in his evidence that the Medical Officer stated so, but in the post mortem report (Ex. 8) it was stated that in his opinion death might have been caused by the injuries received producing haemorrhage and shock. According to the said report, the second injury on the buttock cut deep into the muscular tissues near the spinal column at the level of the 412 lumbar vertebra.
5. The appellant denied the quarrel at Hari Misra's door, his alleged indignant proclamations in the village and his being brought back by P. W. 11 and his challenging P. W. 42 in the fields asking the latter to pray his Ista Debata. He admitted having lodged information at the Police Station and the blood-stained cloth having been seized by the Investigating Officer from him and explained that the cloth had been stained with the blood of his forehead consequent upon the injury that he received. He finally denied that M. O. I belonged to him. He described the occurrence as making out a case of self-defence. According to him, on the morning of the occurrence the deceased and his son abused him and asked him to go to the fields to see how his bullocks had grazed their crop. He replied that he was absent and so he would not be able to state if his bullocks had damaged their crop and told them that while going to the field to put the fence on his land he would look to it. Then he went to the fields and hardly he had planted 2 to 4 thorny bushes, the deceased and his son armed with Katari and lathi proceeded towards him girding up their loins and abused him saying that they would behead him and give him a burial there.
He also stated that the deceased aimed at him a lathi blow on his head, but that he averted his blow on the head and it struck his left hand, that a second blow was given by the deceased which struck him above his eye-brow; and that the injury began to bleed profusely and filled one of his eyes with blood. He further stated that afterwards P. W. 42 gave him a lathi blow on his right hand: that the deceased aimed another blow when he stepped aside; that the deceased then aimed a Katari blow at him and he caught hold of the Katari out of fear; that then P. W. 42 rushed at him; and that there was a struggle for possession of the Katari between him and the deceased, in course of which the Katari struck the deceased below his left ear in consequence of which the deceased fell down. He alleged that P. W. 42 then caught hold of him and tried to snatch the katari from his hands which he had snatched away from the hands of the deceased. In course of this struggle, the Katari struck P. W. 42 who successfully snatched it and threw it when it struck the deceased on his left buttock. He finally stated that the injuries were purely accidental. Lakshmidhar who is acquitted pleaded alibi.
6. 43 witnesses were examined for the prosecution of whom P. Ws 11, 17, 21, 23 to 30, 36, 37 and 42 are alleged to be the eye-witnesses to the occurrence. From Ext. 7 the spot map and the notes attached to it, it appears that the distance from which these witnesses saw the occurrence ranges between 91 to 396 yards. P. Ws 16 and 19 deposed to the quarrel si the door of P. W. 19 and the angry proclamations of the appellant were deposed to by P.Ws 10, 11, 13, 14 and 19. All these witnesses stated that in the first instance the appellant was armed with the Farsa (M. O. II). It is also in evidence that soon after the occurrence, the appellant was seen by P. Ws 1 and 19 returning via the village tank and he stated before them that he was prepared for the consequences of his act. P. Ws 31, 33 and 40 deposed that an extra judicial confession was made to them by the appellant on his way to the Police Station.
7. From the evidence of the eye-witnesses it is difficult to hold, as contended by the appellant, that the injuries on the deceased were accidental.
8. The learned counsel appearing for the appellant (amicus curiae) raised two contentions and submitted that the conviction of the appellant should be seta aside. His first contention is that it is not certain whether the death of the deceased was caused by the Katari blow (M. O. I) by the appellant or by the Farsa blow given by Lakshmidhar and consequently under these circumstances the appellant cannot be said to have caused the death of the deceased and as such he is not liable under Section 302 I. P. C. His next contention is that the evidence discloses a case of right of private defence of body and consequently the homicide is excusable.
9. With regard to the first contention, as already stated, the medical evidence is that death was due to the injuries caused, the injuries having been caused by both the appellant and Lakshmidhar. According to the post mortem report, the injury caused by Lakshmidhar with the Farsa is an incised wound at the left buttock almost horizontal with the tail outwards (1 1/2' X 1/3' XI'). The injury caused by the appellant is an incised wound on the left side of the jaw cutting the bone at the angle severing the jaw above the 3rd molar (1 1/2' X 1/3' X 1' deep). In his evidence, the Medical Officer (P. W. 41) stated that the injury caused by the appellant was sufficient to cause death and that death might or might not have been instantaneous as it all depended upon the degree of shock and haemorrhage. He also stated that the possibility of death being instantaneous before the injury on the buttock was inflicted could not be ruled out and finally he stated that if the deceased was alive after the first injury which could not be stated with certainty, the second injury might have accelerated the death and that the second injury by itself was not sufficient to cause death, Unfortunately, it Is surprising that there was no cross-examination of the Medical Officer by the appellant in the trial Court. It is contended by the learned counsel that inasmuch as according to the evidence of the Medical Officer the second injury alleged to have been caused by Lakshmidhar accelerated the death of the deceased, the appellant cannot be said to have caused the death and consequently he could not be guilty of murder.
10. As already stated by me, the learned Sessions Judge definitely found that there was no common intention to cause death between the appellant and Lakshmidhar. According to the case for the prosecution, both the accused dealt the two blows and according to the medical evidence the second blow might have accelerated the death. In the case of Chenchuramayya v. Emperor reported in AIR 1946 Mad 83 (A) a Division Bench of the Madras High Court observed in the judgment,
'The case against accused 1 seems to us to stand on a very different footing. He saw that accused 2 had struck the deceased on the head with his stick, and yet he immediately raised a heavy weapon and struck a blow which felled the deceased to the ground. If accused 2 did not cause a fracture of the skull or caused a fracture less serious than that found on post mortem examination then the act of accused I would clearly amount to murder; because he was either almost entirely responsible for the death of the deceased or materially contributed to it. Even if the fracture was caused entirely by accused 2, accused 1 would still be guilty of murder; because his blow, delivered immediately after the blow of accused 2, must necessarily have accelerated the death of the deceased.' Russell on Crime. Volume I, loth Edition, observed at page 473,
'Difficult question of causation may arise when the chain of events is interrupted by the act or omission of some third person who is not a confederate of the prisoner or controlled by him, or in some way acting in pursuance of a common purpose with him. In this situation it has often been found convenient to distinguish that which a man has caused to happen from that for which he has merely offered the occasion.' In the case of R. v. Macklin & Murphy reported in (1338) 2 Lew CC 225 (B). it was held,
'Upon an indictment for murder, it appeared that a body of persons were committing a riot, and the constables interfering for the purpose of dispersing the crowd, and apprehending the offenders, the mob offered resistance, and one of the constables was beaten severely. The prisoners all took part in the violence used and of this aggregate violence, the constable afterwards died. Alderson B, said, 'Again, it is a principle of law, that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all. The act however, must be in pursuance of the common intent .... Here, therefore, in considering this case, you must determine, whether all these prisoners had the common intent of attacking the constable; if so, each of them is responsible for all the acts of all the others done for that purpose; and if all the acts done by each, if done by one man, would together show such violence, and so long continued, that from them you would infer an intention to kill the constable, it will be murder in them all.' On the strength of those observations, it is contended that as there was no common intention according to the finding of the learned Sessions Judge, the appellant could not be convicted for murder. I feel, it is difficult to accept this contention. Cases frequently arise that the death could not have occurred but for an act on the part of the accused, but in which he had been excused on the ground that some other person intervened and appeared to have been the more immediate and direct cause of the death on the ground that the death was not the consequences of what the accused did, but was the consequence of what the intervener did. But if one person is engaged in murderously beating, another to death and a stranger, without sharing the common intention, was to rush in and add some more blows so that the victim's death was more speedily brought about, then it is a case where both would be guilty of murder and the first man could not be allowed a defence that it was the second assailant's stroke that finally ended the victim's life.
It is in the evidence of the Medical Officer that the injury caused by the appellant is sufficient to cause death. According to the authorities cited above, it follows that both the persons might be indicted for murder and held guilty of the same. But it does not follow that the person who caused the injury in the first instance sufficient to cause death can be held not guilty of murder. As observed in Russell's Treatise there must be a distinction made between that which a man has caused to happen from that for which he has merely offered the occasion. Here is the case where the appellant, according to the medical evidence, caused the injury sufficient to cause death and therefore he can be said to have caused the death by the injury he inflicted with M. O. I.
11. The second contention raised by the learned counsel for the appellant is that the appellant is exempted from liability on account of self-defence. As has been already observed, all the eye-witnesses were not near the scene of occurrence but were at a distance of 91 to 396 yards on the fields. P. W. 11 who witnesses only the Katari blow after which he ran away out of fear was at a distance of 396 yards from the place of occurrence. P. W. 17 could not say if the deceased had any weapon in his hand. P. W. 20 who is the servant of the deceased and was then ploughing in the field could not identify M. O. I. P. W. 21 witnessed the occurrence from a distance of 91 yards. P. W. 24 stated that the entire occurrence took place on the ridge and on no part of Madan Misra's land. But according to P. Ws. 3 and 7 the dead body was found lying at first after the occurrence on Madan Misra's land. They were at a distance of about 242 yards. P. W. 25 stated that the struggle between the appellant and P. W. 42 took place after Lakshmidhar gave the first stroke on the left buttock of the deceased, while the other witnesses stated that in course of that struggle Lakshmidhar dealt the blow. P. W. 27 witnessed the occurrence from a distance of about 100 yards. He stated that he did not hear any noise at all. P. Ws 29 and 30 witnessed the occurrence from a distance of 242 yards. P. W. 30 stated that the appellant dealt the Katari blow by his right hand only while the eye-witnesses who were examined before him stated that the Katari was held by the appellant with both hands at the time of dealing the fatal blow. P. W, 37 also admitted in his statement before the committing Magistrate that P. W. 42 had a spade in his hand. The eye-witnesses therefore could not have seen all the incidents. The appellant had three injuries one on the forehead and one on each of his hands. Only a single blow was dealt by the appellant on the deceased which he did not repeat. P. W. 42 covered a greater distance to reach his father and the father and the son also covered a greater distance to meet the appellant.
The appellant in his extra judicial confession before P. Ws. 31, 32 and 40 as well as in in his report at the Police Station which was a First Information Report clearly stated at the earliest opportunity that he acted in self-defence. Taking into account the above circumstances, especially the distance at which the eye-witnesses to the murder were at the time the occurrence took place and the injuries on the appellant, I am of opinion that the defence set up by the appellant is reasonable and probable and both the son and the father (the deceased) might have advanced against the appellant when the latter gave the only blow with the Katari on a vital part of the body, namely, the jaw. Under those circumstances, I am of opinion that a case of self-defence is made out in the evidence. But the blow which caused the death being on a vital part of the body when the deceased was armed only with a lathi is in my opinion a case of exceeding the right of private defence. The appellant could have disabled the deceased by giving the blow on the leg or on the hand. I am, therefore, of the opinion that the appellant is guilty of culpable homicide not amounting to murder as the case falls under Section 300, Exception II, I. P. C. I would therefore set aside the conviction and sentence of the appellant under Section 302 I. P. C. The appellant is convicted for culpable homicide not amounting to murder under Section 304, Clause (1) I. P. C. and sentenced to undergo rigorous imprisonment for seven years. With this modification, the appeal is dismissed.
12. I agree.