1. This is an appeal by the State against the acquittal of Bherumal and Babulal of an offence Section 302. I. P. C. by the Additional Sessions Judge of Sirohi.
2. The case for the prosecution was briefly this. Foujmal deceased was a young man of about 19 years of age, and used to live in village Mandar. Roopchand P. W. was a relation of Foujmal. This Roopchand had a brother Manilal who wag also a young man. Babulal accused is of the same caste as the deceased, and is the son of Amichand who was also an accused in this case, but has been acquitted. .
Babulal's mother had a sister Rohni Bai, Her parents are dead, and she used to live with her brother-in-law Amichand, and is still living with him. It is said that she fell in love with Manilal but Manilal's family was not in favour of the marriage of Rohni Bai with Manilal. It is also said that Manilal himself was not keen on marrying Rohni Bai. She was however, so keen in the matter that she offered 'Dharna' for some time at the house of Manilal's family.
Even this however did not move the members of Manual's family, and Rohni Bai's desire to marry Manilal did not bear fruit. In this connection, some pamphlets were also issued, and one such pamphlet is Ex. 11 which was recovered along with a large number of others from the house of. Amichand by the police on 8-2-1952.
Anyhow, the result of all this action on the part of Rohm Bai was that there were strained relations between Amichand and members of Manilal's family. It is said that because of those strained relations Amichand wanted to take revenge, and used his son Babulal, and his neighbour Bherumal, who is also a young man, to murder Foujmal, a relation of Manilal. In order to do this, a sword was first purchased from Kapura Lohar of that very village sometime before 31-1-1952, on which date the murder took place.
3. With this back-ground let us look at the story as to what happened on 31-1-1952. It is said that on that day Bherumal accused took Foujmal deceased to a hillock known as 'liladhar-Ki-Bhankri' which is at a short distance from the Abadi of Mandar. Bherumal and Foujmal were seen going towards this hillock at about 3.30 P. M.
After about an hour, say at about 4.30 P. M., Babulal and Bherumal were seen returning from that hillock to the village. At that time, their clothes and their hands were blood-stained. Chandanmal P. W. saw them on the way, and asked them how they had got those blood-stains. On this, they told Chandanmal that three Dakoos had come to the hillock and had caused injuries to Foujmal, and killed him and that those same persons had also caused injuries to the two of them, but they managed to escape.
Thereafter these two accused went away to their house, while Chandanmal went to the Bazar where he met Roopchand and Genmal. He told them what he had seen, and what the two accused had told him regarding the killing of Foujmal. Thereupon, Roopchand and Genmal went straight to the police station which also happens to be in Mandar, and made a report.
In this report, they said that Foujmal, Babulal and Bherumal had gone to the hillock to ease themselves, and Babulal and Bherumal had returned with blood-stains on them, and were saying that Foujmal had been murdered by three Dakoos, and that they had managed to escape with injuries.
4. On the receipt of this report, Sardar Khan Head Constable came to the village, and went to the houses of Babulal and Bherumal and questioned them. Babulal gave no replies to Sardar Khan's questions. Bherumal repeated the same story which was already given in the first report. Sardar Khan went to the hillock. There he found the dead body of Foujmal. There were a large number of injuries on Foujmal's body.
Nearabout that body were also found a Theh, a stick, handkerchief, a pair of spectacles, a red cap and a pair of Chappls, besides the broken handle of a sword which is Ex. 3. The Sub-Inspector, who was away, and the Superintendent of Police, came to the village next morning on coming to know of the incident.
A further search of the hillock was made on the 1st of February, and a sword without the handle was found lying under a stone, and was taken in possession. It seems that by now suspicion had been aroused against the accused, and therefore their blood-stained clothes were taken in possession.
The shop of Amichand, father of Babulal accused, was also searched, and a number of red caps, and spectacles similar to those found at the hillock were recovered from there. A week later the house of Amichand accused was searched, and many other things viz., a photograph of Foujmal deceased, and some pamphlets similar to Ex. 11 and an account book were seized.
Reports were made for recording the confession of the two accused. Bherumal's confession was recorded on 18-2-1952, while the statement of Babulal was recorded on 20-2-1952. Thereafter, the case was sent up to Court against these two accused as well as Amichand who was charged with having abetted them in the commission of the murder.
5. The trial Court came to the conclusion that the evidence against Amichand was not satisfactory, and ordered his acquittal. As for the two accused he came to the conclusion that the prosecution story was true, and the accused had caused injuries to the deceased. He, However, found them guilty under Section 324 only because though the accused were charged under Section 302, I.P.C. there was no charge under Section 34, I, P. C,, against them.
The learned Additional Sessions Judge was of the view that in the absence of such a charge it was not possible for him to convict the accused of the offence under Section 302, I. P. C., for it was not known which of the accused had caused the fatal injuries. He, therefore, convicted both the accused under Section 324, I. P. C., and sentenced them to three years' rigorous imprisonment each.
6. The case of the accused which they put forward in the trial Court was that they had gone with the deceased to the hillock to ease themselves. After they finished that, the three of them began to play about there. It may be mentioned that all were young men of about 18 or 20. Then two or three persons came to the hillock, who looked like Dakoos. These three young men were frightened on seeing these two or three persons, and all of them ran towards the village.
There were stones, thorns and dry branches of trees on the way, and they stumbled against these things and fell down at times. That was how the two accused received the injuries which were found on their person, and from which blood had come out staining their clothes. They had looked behind but could not see Foujmal following them and therefore did not know what happened to him. They of course, denied that they had said anything to Chandanmal or even met him.
As for the confession, Bherumal said that he was told that he would be made an approver if he made a confession, and therefore it was on that inducement that he confessed on 18-2-1952, as desired by the police. Both of them also denied fill other circumstances appearing in evidence against them including the purchase of the sword, and said that the witnesses were giving evidence on account of enmity.
After the conviction of the two accused under Section 324. I, P. C., there was no appeal by Bherumal. He seems to have been satisfied with the sentence passed on him. There was, however, an appeal by Babulal to this Court, but sometime afterwards he sent an application to the Court that he did not want to press the appeal, and therefore his appeal was dismissed in August, 1954.
7. The present appeal by the State was filed in October, 1954, after the dismissal of Babulal's appeal.
8. A preliminary point has open raised on behalf of accused Babulal that as his appeal was dismissed by this Court even though on his own asking it was not open to this Court to hear the Government appeal against his acquittal under Section 302, I. P. C., and that the Government's appeal was barred after the dismissal of his appeal.
Reliance in this connection is placed on --'State v. Kalu', AIR 1952 Madh.-B. 81 (FB) (A) where Chaturvedi, J. held that where after an appeal under Section 423 (1) (b), Criminal P. C. by the accused against conviction has been dismissed by an appellate Bench of a High Court, if an appeal is filed against acquittal of accused on other charges by the Government under Section 417, such an appeal is not competent.
9. The case so far as it goes certainly supports the contention made on behalf of Babulal. But there is one important distinction between the Madhya Bharat case and the present case. In that case, the appeal against conviction had been heard on the merits after notice to the State, and then dismissed. In the present case, the appeal was dismissed without hearing the State, though a notice had been issued to the State.
The order-sheet, however, shows that no appearance had been put on behalf of the State, and the State was not heard as Babulal did not press the appeal. It is, in our opinion, unnecessary in view of this distinction to examine the reasons in support of the Madhya Bharat case. We may in this connection refer to -- 'U. J. S. Chopra v. State of Bombay', (S) AIR 1955 SC 633 (B).
The question there was whether after the dismissal of an appeal by the High Court summarily It was open to an accused to show cause against his conviction under Section 439 (6), Criminal P. C. in case there was an application for enhancement of sentence against him.
The majority of the Judges in that case held that where the petition of appeal, or application for revision of an accused has been summarily dismissed either without hearing him or after hearing him or his pleader, as the case may be, there is no judgment of the High Court replacing the judgment of the lower Court and the High Court in exercise of its revisional jurisdiction either suo motu or on the application of the interested party would be in a position to issue the notice of enhancement of sentence, and thereafter the accused would have a right under Section 439 (6) to show cause against his conviction irrespective of what has happened in the past unless and until there 1st a judgment of the High Court already pronounced against his conviction after a full hearing in the presence of both the parties on notice being issued by the High Court in that behalf.
It is only when there is such a judgment that there can be no notice for enhancement and no further hearing by the High Court. Applying the principle of this case to the facts of the present case, it is obvious that when Babulal's appeal was dismissed by the High Court on his own prayer that he did not want to press it, and there was no hearing given to the State, the order of the High Court is not such a judgment as would preclude us from hearing the appeal of the State against the acquittal of Babulal under Section 302 I. P. C. The preliminary objection therefore is overruled.
10. Before we consider the evidence in this case, we should like to dispose of a contention made by the learned Government Advocate. He contends that the accused were convicted under Section 324, I. P. C., and certain facts were found against them. One of them did not appeal against his conviction, while the other appealed. He did not press his appeal, and allowed it to be dismissed.
Consequently, he urges that it is not open to the accused to challenge before us now in this appeal the findings of fact arrived at to sustain their conviction under Section 324, I. P. C. It is, therefore, urged that as the facts are the same, whether the accused be convicted under Section 324, or Section 302, I. P. C., all that we have to see in appeal is whether in law the Additional Sessions Judge was justified in acquitting the accused.
In any case, it is urged that whatever conclusion we may come to so far as conviction under Section 302, I. P. C. is concerned, the accused have no right to challenge their conviction and sentence under Section 324, I. P. C., and that must stand.
11. We are not prepared to accept this contention so far as the powers of this Court are concerned. The State wants us to convict the accused under Section 302, I. P. C., and we cannot and should not do so unless we are satisfied both in fact and in law that the accused are guilty under that section. We are, therefore, not bound by the findings of fact arrived at by the Additional Sessions Judge, on the basis of which he convicted the accused under Section 324, I. P. C.
Further if we come to the conclusion that the case under Section 302, I. P. C. is not proved on the facts, and if the conviction under Section 324, I. P. C. depends on exactly the same facts, we have the power under Section 439, Criminal P. C. to interfere with the conviction under Section 324, I P. C., even though the accused may have no right to challenge that conviction having either not appealed or having not pressed their appeal.
At the same time, we cannot refrain from pointing out that this appeal by the State is not the usual kind of appeal from acquittal where on the facts also the Sessions Judge has decided in favour of the accused. As we shall show later, the facts are exactly the same, whether there is to be a conviction under Section 324, I. P. C., or under Section 302, I. P. C.
The Sessions Judge on those facts has convicted the accused under Section 324, I. P. C., and though there is a technical acquittal on the ground of a legal defect under Section 302, I. P. C., the judgment is really one of conviction on the facts, and all that the State wants us is to uphold that judgment of conviction on the facts, but amend it on the legal question whether on those facts and the manner in which the charges have been framed in this case, a conviction under Section 302, I. P. C. is possible.
Though therefore we must satisfy ourselves that on the facts the conviction is correct, the accused have no right to address us on the correctness of the conviction on the facts for one of them did not take the opportunity to appeal, and the other, though he did appeal, later did not press that appeal, and allowed it to be dismissed. This aspect of the matter has to be borne in mind in view of the peculiar circumstances of this appeal by the State.
12. Before we consider the question of law involved in this appeal, let us briefly review the evidence to satisfy ourselves whether the findings of the trial Court on the facts are correct.
13. The first important fact Is that the deceased was seen by Samrathmal P. W. 1 going with accused Bherumal on 31-1-1952, towards the hillock, where his dead body was found a little later, at 3-30 P. M. Samrathmal did not see Babulal at that time, and it may be that Babulal might have preceded Bherumal & the deceased, as appears to be the case from the evidence of Chena P. W. 2. But there seems to us no reason to doubt the testimony of Samrathmal and Chena P. Ws. in this connection, for the accused also admit in their statements that Foujmal was with them at the hillock, and had gone with them, and that they Were playing together for sometime. Nothing is brought about in the cross-examination of Samrathamal and Chena to show that they had any reason to implicate the accused falsely.
The allegation of the accused in their statements before the Sessions Court that these witnesses bore enmity with them may, therefore, be completely overlooked. If it was a fact that there was any enmity between the accused and these witnesses that matter should have been put to the witnesses in cross-examination.
It is, therefore, proved beyond doubt in this case that the two accused and the deceased had gone to the hillock either all together as stated by the accused, or one of them a little in advance of the other two, as established by the prosecution evidence, at about 3.30 P. M.
14. The next fact, which is also established beyond doubt, is that about an hour later the two accused were seen returning from that hillock without Foujmal. At that time, their clothes and their hands and feet were blood-stained. They were again seen by Samrathmal who was still sitting in front of his house when they returned.
Samrathmal had no talk with them, but Chandanmal P. W. 8, who happened to be coming on that very Rasta, also saw them returning from the hillock with their clothes and bodies bloodstained. He asked them how that had happened, and this seems to us to be a very natural question. The accused Bherumal replied that three Dakoos had come to the hillock, and had killed, Foujmal and had also caused injuries to the two of them. Chandanmal also said that the accused replied to his questions in a normal manner.
There is no reason whatsoever for not believing the statement of Chandanmal. All that was brought out against him was that some four years ago Amichand, father of Babulal, accused, had made some complaint against him in the Tahsil for causing hurt to him. But that matter was compromised.
There is no reason to hold that there was any enmity between Chandanmal and the accused, and his statement along with that of Samrathmal dearly establishes that at about 4.30 P. M., the two accused returned from the hillock with their clothes and bodies blood-stained, and on being asked what had happened, Bherumal said that three Dakoos had come and killed Foujmal and injured two of them.
Babulal did not contradict this explanation of Bherumal, which was given in his presence, and he must be held to have acquiesced in it.
15. It has been alleged by the accused in their statements that Roopchand and others of his family bore enmity with them and have manufactured this false case against them. We are of opinion that this allegation is also without substance. In the first place, if there was anybody aggrieved in the matter of Rohni Bai, it would be Amichand and not Roop Chand and members of his family.
In the second place, the conduct of Roopchand, after Chandanmal informed him of what lie had heard from the accused, shews that there was no desire on his part to manufacture any false case against the accused. It seems that after Roopchand got information, he accepted the explanation of the accused at its face value, and made a report in the Thana according to what Chandanmal had told him. He made no additions to it and no subtractions from it.
That is not the conduct of a man who is out for the blood of the accused. He did not even express any suspicion against the accused in the report, and it seems that people in the village accepted the statement of the accused, at any rate, at that time. No one even went to the hillock to look for the dead body till after the arrival of the police. We are, therefore, satisfied that the accused were seen returning from the hillock at about 4.30 P. M. with their clothes and bodies blood-stained, and gave a certain explanation about the blood found on them.
16. Then there is the fact that soon afterwards, say at about 5 P. M. or so, the dead body of Foujmal was discovered at that very hillock to which the accused had gone with him, and from which the accused were returning without him an hour later with blood-stained clothes and bodies. A broken hilt of a sword was also recovered near the dead body.
Next day a blood-stained sword, to which the hilt fitted, was also recovered under a stone near about it. These facts and circumstances cast the heaviest responsibility on the accused to explain what happened to Foujmal while he was with them at the hillock:
17. The next circumstance, which is also in our opinion, proved beyond doubt, is the purchase of the sword from Kapura Lohar P. W. 9. The statement of this witness has been very seriously attacked on behalf of the accused, and we have been asked to scrutinise it most carefully before accepting it. We have given anxious consideration to the statement of Kapura, and have come to the conclusion that it is true so far as the purchase of the sword by these two accused is concerned.
Not a single question was put either to Kapura or to his father Hindu P. W. 6 to show that they had any enmity whatsoever with the accused, or any friendship with Roopchand or his family which would dispose them to give false evidence against the accused.
Our attention has been drawn, however, to certain discrepancies in their evidence, and we have been asked to discredit Kapura's statement on account of those discrepancies and contradictions. For example Hindu said that so far as he knew there was no sword at his house. But Kapura said that there was a sword at the house as he had purchased one some years back.
It appears that work with respect to swords is done by Kapura, and he might have better knowledge about it than his father. Then it is pointed out that Kapura and Hindu say that they work separately, while defence evidence has been produced to show that they work and live together. It is to our mind immaterial whether the father and son work together or not.
Even if they work together, it is quite possible that the father may not have an idea that a sword was at his house, while the son may know about it. Then it is urged that both father and son said in the committing court that they were first approached about the sword about one week before the murder, while in the Sessions Court they say that it was about two weeks before, and this change has been made to bring their statement into line with the confession of Bherumal accused.
All that we need say in this connection is that witnesses in India have a very hazy idea of time and distance, and we are not prepared to disbelieve them because of this discrepancy. The fact remains that both of them are certain that the accused approached them for the purchase of the sword.
18. Then our attention is drawn to certain improvements in the evidence of Kapura. That improvement was with respect to the implication of Amichand. It seems that his father Hindu had spoken about Amichand, while Kapura said that he was approached by these two accused.
Later, in the Sessions Court Kapura introduced Amichand also saying that his father had told him about it. This matter of Amichand is, in our opinion not of serious import now that Amichand has been acquitted. It is also possible that at the earlier stage Kapura merely mentioned what he knew himself, and did not say anything about what he had heard from his father.
But on a careful consideration of the evidence of these two witnesses, we are satisfied that the learned Additional Sessions Judge was right in believing them and holding that the sword and the hilt, which were recovered from the spot where the dead body of Foujmal was found had been purchased by the two accused from Kapura shortly before the murder.
This is also an important circumstance against the accused to show that a sword which they had purchased only shortly before was found bloodstained with the hilt broken lying near the place where the dead body of Foujmal was. It only stands to reason that this sword must have been used for the attack on Foujmal. The explanation of the accused about it is that they had nothing to do with it. They want to keep as far away from the sword as possible.
19. Our attention was also drawn to an entry in the account book taken away from the house of Amichand accused about the purchase of this sword. An attempt has been made on behalf of the defence by producing an expert to show that this entry is a forgery, and was put in by the police after the recovery of the account book. A hand-Writing expert has been produced to say that this entry is not in the hand-writing of Babulal.
Suffice it to say that we are not impressed by the evidence of the hand-writing expert. It has been possible to raise this argument because of the carelessness or incompetence of the Sub-Inspector. He admitted that he did not notice this entry in the book when he took it into possession on 8-2-1952, and only noticed it a week or more later on getting information from an informant.
In view of this statement of the Sub-Inspector we need not place any reliance on the entry in the account book, though it seems to us that that entry has not been interpolated. But even without that entry, there is no reason to doubt the statement of Kapura about the sale of the sword to the accused.
20. The trial Court had also relied on the retracted confession of Bherumal, which was held to be voluntary and true, in order to give support to the other evidence. We are, however, of the view that the confession made by Bherumal must be exclude from evidence as it does not appear to be voluntary. Certain circumstances have been proved, which make us doubt the voluntariness of Bherumal's confession
It appears that after his arrest, Bherumal remained in police custody for about two weeks. Thereafter, he was sent to jail, and remained in the jail for about 3 or 4 days. He was then produced before the Magistrate for recording of his confession. The Magistrate only put to him the two minimum questions required by law, and did not try to ascertain by questioning him generally whether he was making the statement voluntarily.
It appears that a few days before Bherumal made his confession, a report was made by the Sub-Inspector to the Superintendent of Police that Bherumal or at any rate one of the two accused might be made an approver. Bherumal's, statement is that he was told that if he made a confession, he would be made an approver, and it was that inducement which led him to make the confession.
Bherumal further said that after the Sub-Inspector had made a report to the Superintendent of Police for making him or one of the two accused an approver, his brother came to him in jail and told him to make a statement as desired by the Sub-Inspector and that he would then be made an approver. Bherumal's brother did go to meet Bherumal in jail a day after the Sub-Inspector had reported to the Superintendent of Police for making one of the two accused an approver.
These circumstances leave no doubt in our mind that Bherumal's confession was induced by an indirect promise held out to him that if he made the confession, he would be made an approver. In these circumstances, it is not necessary to consider whether that confession is true or not. It must be ruled out on the ground that it was not a voluntary confession.
21. As for the statement of Babulal, he entirely exculpated himself and threw the whole blame on Bherumal for the murder. That statement might also have been induced by the knowledge that whichever of the two accused made & statement would be made an approver, though he did not say so specifically in his statement.
He however said that he had been beaten by the police, and therefore made a statement in which he never admitted his guilt. We are, in the circumstances of this case, not disposed to accept this statement also as voluntary. It is not necessary therefore to consider the truth or otherwise of the statement of Babulal.
22. It has also been urged that there was no motive for the accused to commit this murder. So far as Bherumal is concerned, there was no motive for him to murder Foujmal. He seems to have joined merely as a friend of Babulal. So far as Babulal is concerned, there is a motive in this case, though it must be admitted that it is not strong. We have already referred to the episode of Rohni Bai. It may be that that episode might have left a feeling of bitterness in the minds of Rohni Bai's relations towards the relations of Manilal.
Babulal is a young man, and might have worked himself up because of that feeling, and decided on the murder of Manilal or some relation of his. The reason why they could get hold of Foujmal is that they were friends of Foujmal, and could induce him to go with them to the hillock where the murder was committed. Though therefore the motive in the case of Babulal is not strong, it cannot be said that there was no motive whatsoever for the accused to commit this murder.
23. To sum up, the circumstances which have been proved beyond doubt against the accused are that Babulal had some motive for doing injury to Manilal or any of his relations and Bherumal is a friend of Babulal. The three of them namely Foujmal, Babulal and Bherumal went to the hillock either together or Babulal a little in advance of the other two at about 3-30 P, M.
About an hour later, Babulal and Bherumal alone returned from the hillock, and at that time their clothes at well as their bodies were blood-stained. They had purchased a sword a few days before the murder, and that sword was found broken and blood-stained near the place where the dead body of the deceased was found on the hillock. The accused were asked, when they were seen returning from the hillock with blood-stained clothes and bodies, as to what had happened.
Their explanation then was that two or three Dakoos had come and attacked them. They were injured, and had managed to escape while the deceased Foujmal was killed. In the Court, however, they changed this explanation. They now say that while the three of them were at the hillock, three bad characters came there.
All of them were frightened and ran towards the village. Foujmal was left behind, and they did not know what happened to him. The two accused received injuries by falling down on thorns, brambles and stones which were there on the hillock.
24. The question, that arises, is whether on the facts proved by the prosecution as summed up above, and which are all circumstantial we can come to the only conclusion that the deceased must have been injured by the accused and no one else.
We have already said that the deceased was going hale and hearty at 3.30 P. M. towards the hillock, and the accused were obviously with him at the hillock, and they returned within an hour with blood-stained clothes and bodies. They had to explain what had happened to the deceased, and why their clothes and bodies were blood-stained. The explanation, which they gave first to Chandanmal, and which finds mention in the first report, was that three Dakoos had come and killed Foujmal and injured the accused.
In Court however, they did not stick to that explanation. They now say that they did not know how Foujmal was injured. All that happened was that three bad characters came and the accused and Foujmal ran to the village frightened and Foujmal was left behind. The accused did not know what happened to Foujmal while they themselves were injured as they fell down, and were scratched by thorns and brambles. These stories given by the accused are, in our opinion false.
The deceased had a very large number of injuries numbering 34 caused by a sharp weapon. Now if the deceased had been murdered as alleged by the accused by some Dakoos for no rhyme or reason, we would not have found so many injuries on the deceased. The Dakoos would have done their work easily by causing a few mortal wounds.
The fact that so many injuries were found on the deceased seems to suggest that those who attacked him had some motive in making the attack, which would be absent in the case of mere stranger like Dakoos, The other explanation given by the accused in Court is also, in our opinion, false. The injuries found on the accused could not, in our opinion, have been caused by thorns or by falling on stones.
Bherumal had two incised or cut wounds-one on the left fore-arm, and the other on the index finger of the left hand. These injuries were in all probability caused by mishandling of a sword. Babulal had three injuries, all cut or incised wounds on the left fore-arm, right index finger and left hand. The first two injuries could have been caused by the mishandling of the sword, and the third by accident.
But these injuries could not have been caused by thorns or brambles or falling on stones. Further if these people had run helter-skelter and had fallen on the ground and were scratched by thorns and brambles, we should have found many more injuries on other parts of their body like scratches and so on.
But no such injuries have been found on the persons of the accused. Their explanation, there, fore, whether given to Chandanmal or later on in Court, is false. The fact that they changed their explanation, and now make out that they know nothing about the murder of Foujmal, while they had originally said that Foujmal bad been killed by Dakoos, itself suggests that they themselves felt on mature thought that their earlier story would not hold water for long.
25. The facts, therefore, remain that the deceased had gone with the accused to the hillock. Within an hour the accused returned with bloodstained clothes and bodies. The explanations the accused have given about the injuries to the deceased, and the injuries to themselves are false. A sword had been purchased by them a few days before the incident from Kapura. That very sword broken and blood-stained was found near the dead body.
In these circumstances, we are of opinion that there can be no other inference except that it was the two accused who had caused these injuries to the deceased with the sword. We can think of no other reasonable hypothesis to explain the death of Foujmal, nor has any other hypothesis been put forward on behalf of the accused of a reasonable nature.
In these circumstances, we agree with the Additional Sessions Judge that it is the accused and the accused alone who are responsible for the injuries caused to the deceased,
26. Now we come to the legal question raised in this appeal, namely whether the accused have been wrongly acquitted of the offence under Section 302, I. P. C. In this connection, we should like to set out the charges that were framed against the accused.
27. The charge against Bherumal was that he and Babulal, on or about 31-1-1952 at Mandar between 3 P. M. and 5 P. M. committed the murder of Foujmal by intentionally causing his death, and thereby committed an offence punishable under Section 302, I. P. C.
28. The charge against Babulal was that he and Bherumal at the same time and place committed the murder of Foujmal by intentionally causing his death and thereby committed an offence punishable under Section 302, I. P. C. It will be noticed that Section 34 was not mentioned in these charges nor were the words 'in furtherance of the common intention of both' embodied in the body of the charge.
The learned Additional Sessions Judge has referred to two cases decided by the Supreme Court, namely
'Dalip Singh v. State of Punjab'. AIR 1953 SC 364 (C); and -- 'Ramnath Madhoprasad v. State of Madhya Pradesh', AIR 1953 SC 420 (D) and has said that in view of these authorities it was not possible to have recourse to Section 34. I. P. C. because the accused had not been charged therewith, and there was no semblance of the Ingredients of Section 34 included in the body of the charge.
It is unfortunate that if that was the view of the learned Sessions Judge, he did not take steps when he began the trial to add a charge under Section 34 to the charges framed by the Magistrate as he had full power to make amendments to the charges framed by the Magistrate.
We should like to remark that it is the duty of Sessions Judges before they begin trial of sessions cases to scrutinize the charges framed by the Magistrate carefully and amend them where they feel that they are not in accordance with law.
29. We have heard learned counsel at length on this question, namely whether the accused can be convicted of Section 302, I. P. C. read with Section 34, I. P. C. on the charges as they appear when Section 34 has not been specifically charged against them.
30. The first case is -- 'Lachhman Singh v. The State', AIR 1952 SC 167 CE). In that case it was held that:
'Where the facts of a case are such that the accused could have been charged alternatively either under Section 302 read with Section 149 or Section 302 read with Section 34, the conviction of the accused under Section 302 read with Section 149 can be altered by the High Court in appeal to one under Section 302 read with Section 34, upon the acquittal of the other accused persons'.
This case is not quite in point for there was no charge under Section 149, I. P. C. in this case. The accused were charged only under Section 302, and there was no mention of Section 34 in the charges.
31. The next case is -- 'Dalip Singh v. State of Punjab (C)'. In that case the accused had been charged under Section 302 read with Section 149, and convicted by the Sessions Judge. The High Court maintained the conviction of only four out of seven and held that the other three might or might not have taken part in the affair; but still the conviction under Section 302 read with Section 149 was maintained.
The Supreme Court held that this was not correct for on the High Court's finding there were only four persons left who could be said with certainty as having taken part in the crime. It was also remarked in that case that recourse to Section 34 could not be had because the appellants had not been charged with that even in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing.
Learned counsel for the accused relied on these observations strongly. But here again the point involved in the case before us is materially different. It is not whether we can substitute a conviction under Section 302 read with Section 34 in place of a conviction under Section 302 read with Section 149. The question is whether we can convict under Section 302 at all when there was no charge specifically under Section 34.
This case therefore is also not very helpful, The observations on which reliance has been placed have been explained in a later case by the Supreme Court. That later case is -- 'Karnali Singh v. State of Punjab', AIR 1954 SC 204 (F). In this case it was pointed out that
'Though there is substantial difference between Section 34 and Section 149 the sections also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34.
If the common object which is the subject matter of the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore to be permitted.
But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must be held to be a formal matter'.
In that case, the Supreme Court substituted Section 34 for Section 149 and explained their observations in -- 'AIR 1952 SC 167 (E)', just cited above. This case therefore obviously lays down that even though there might be no charge under Section 34, it is possible to convict with the aid of Section 34.
The view taken by the learned Judge that in the absence of a charge under Section 34 it is not possible to convict at all with the help of that section is not correct.
32. In -- 'Pandurang v. State of Hyderabad', (S) AIR 1955 SC 216 (G) it has been held that Section 149, I. P. C. unlike Section 34 creates a specific offence and deals with the punishment for that offence alone. So where the accused were not charged under Section 149, the appellate Court would require strong reasons for using that section even if it be possible to convict under that section in the absence of a specific charge.
This case establishes that section 149 stands on a different footing from Section 34. Section 149 is a specific offence by itself, while Section 34 is merely a principle under which one person is liable for the joint acts of himself and another when tile crime is committed in pursuance of the common intention of both.
Further the learned Judges considered whether the absence of a charge under Section 34 would be fatal or not, arid they said that they need not decide whether such omission is fatal. The Supreme Court, therefore, has not decided that the omission to frame a charge under Section 34 is fatal to a conviction under Section 302 read with Section 34.
33. In -- 'Nanak Chand v. State of Punjab', (S) AIR 1955 SC 274 (H), it has been reiterated that Section 149 embodies a specific offence, and Section 34 does not create any specific offence. It has also been pointed out that there is a clear distinction between Sections 34 and 149, and the two sections are not to be confused. It is added that Section 34 is merely explanatory and does not create any specific offence.
We emphasise the words 'that Section 34 is merely explanatory'. The principal element according to the learned Judges under Section 34, I. P. C. is the common intention to commit a crime, in furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime.
In such a situation Section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. It may be mentioned that this case also is not directly in point, though the observations of the Supreme Court in this case about Section 34 are of help in the circumstances of the present case.
34. The last case to which reference has been made is -- 'Suraj Pal v. State of Uttar Pradesh', (S) AIR 1955 SC 419 (I). Learned counsel for the accused particularly emphasised the following observations at page 422:
'Whether or not Section 149, I. P. C. creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as ''constructive liability' -- a convenient phrase not used in the Indian Penal Code.
There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by Sections 236 and 237, Criminal P. C.
The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor'.
In that case, the accused was charged under Section 302 read with Section 149, but was convicted by the High Court under Section 302 only. It was held that there was prejudice to the accused inasmuch as he did not know that he would be convicted for direct responsibility for the murder. The emphasis on behalf of the accused is on the sentence which says:
'The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor'.
It is urged that this sentence means that there must be a charge under Section 34 because it creates constructive liability, & if there is no such charge, there can be no conviction under Section 302 read with Section 34. In the first place, the words 'criminal liability' appearing in this sentence are limited by the words 'constituting an offence'.
If Section 34 is not an offence, as it undoubtedly is not, it cannot be the basis of a charge. Further, in this very paragraph the learned Judges go on further to put the question whether or not this lacuna had prejudiced the accused in the trial.
Now the question of prejudice would only arise where the absence of a charge was not fatal. If the absence of a charge is fatal, the conviction will have to be set aside without going into the question of prejudice. We feel therefore that learned counsel are reading more in these observations of the Supreme Court than is justified by the language used.
These observations do not lay down that what the learned Judges have called as a merely explanatory provision in the earlier case cited above (S) AIR 1955 SC 274 (H) must be included in the charge, and if it is not included in so many words, the omission is fatal. We do not mean by these words to lay down that magistrates and judges should not indicate in the charge that Section 34 would be used against the accused, it is, in our opinion, always desirable that this should be indicated in the charge.
But where by oversight or otherwise specific mention of Section 34 is not made in the charge, that defect by itself would not be fatal, if otherwise the Court can come to the conclusion that the accused had notice that they would be liable under Section 34 also, for after all Section 34 is merely an explanatory provision in the Code, and does not create any specific offence itself.
35. Now let us look at the charges that were framed in this case. Each of the accused was told that he along with the other accused intentionally committed the murder of the deceased. Section 34 was not specifically mentioned along with Section 302 in the charge-sheet, and the words in furtherance of the common intention of both' were omitted from the charge-sheet.
Can it be said in these circumstances that the accused had no idea that they would be held liable under the explanatory provision of Section 34? We are of opinion that considering that each one of them was told that he and the other were both responsible for the murder, and therefore he was guilty under Section 302, I, P. C., there was sufficient indication to the accused that each of them would be held liable for the joint act of both of them. This is what Section 34 provides namely that where an act is done by a number of persons each is held liable for the joint act of all.
This was what the charge was namely that each of the accused was liable for the joint act of both of them. The absence therefore of Section 34, from the charge, or of the words 'in furtherance of the common intention of both' is, in the circumstances of this case, immaterial, and the charge was, as framed, clearly indicative of the fact that each accused was liable for the joint act of both of them, namely the murder of Foujmal.
We, therefore, do not agree with the learned Sessions Judge that on this charge the accused could not be convicted under Section 302, I. P .C. read with Section 34, when Section 34 is merely an explanatory section.
36. The point, of course, remains that Section 34 can only be used when it is established that the act was in furtherance of the common intention of both the accused. That is a question of fact depending upon the circumstances of each case.
As has been observed by the Supreme Court in -- 'Rishideo Pande v. State of U. P.', (S) AIR 1955 SC 331 (J), it is not necessary to adduce direct evidence of common intention. Indeed in many cases it may be impossible to do so. The intention may be inferred from the surrounding circumstances and the conduct of the parties. What are; then the surrounding circumstances and the conduct of the accused in this case? The first circumstance is that both of them jointly purchased the sword from Kapura, and this sword was found broken and blood-stained at the place where the murder was committed.
Both of them went with the deceased to the hillock where shortly afterwards the deceased was found murdered. Both of them returned together with blood-stains on their clothes and on their bodies from the hillock where the dead body was later found. When asked what had happened to cause stains on their clothes and bodies, one of them gave a false explanation, while the other kept silent. It is admitted by them that they went together, were always together with the deceased at the time when the murder must have been committed and came back together.
When this is considered along with the purchase of the sword together a few days before, it can hardly be said that there was no common intention on the part of the accused, and that even if they were responsible for causing injuries to the deceased as has been found by the Additional Sessions Judge also, it was not in pursuance of the common intention.
As a matter of fact, the Additional Sessions Judge does not say that there was no common intention. He has acquitted the accused under Section 302 because he was of the view that in the absence of the charge under Section 34, there can be no conviction under Section 302. That view is, in our opinion, incorrect. Further on the charges as framed in this case we have no doubt that the accused knew that each of them was charged with responsibility for the result caused by their acts jointly.
There is, therefore, no question of any prejudice to the accused in the case of Section 34 in this case. If, for example the charge against each accused was only that he had caused the death of Foujmal without reference to the part of the other accused, it might have been said that there was Ho indication to the accused that each one would be held liable for the joint act of both.
As the charge is framed in this case, we are satisfied that it is merely defective and it is not a case of absence of a charge of the nature required by Section 34. It is open to us under Section 423 (1) (a) to convict the accused under Section 302 read with Section 34 provided it was possible for the Sessions Judge to do so on the charges that were framed in this case.
We are clearly of opinion that it was possible for the Sessions Judge on the charges framed in this case to convict the accused under Section 302 read with Section 34. Under these circumstances, we can also convict them under Section 302 read with Section 34.
37. The next question is about the sentence. Considering that both the accused were young men of about 18, we think that ends of justice would be met if they are sentenced to transportation for life.
38. We, therefore, allow the appeal, and setting aside the acquittal of the accused under Section 302, I. P. C. find them guilty under that section read with Section 34, and sentence each of them to transportation for life.