C.M. Lodha, J.
1. These are two connected appeals arising out of the judgment of the Additional Sessions Judge No. 2, Sri Ganganagar dated 26-11-1970 whereby the learned Judge acquitted Pooran Singh and Jeet Singh altogether and convicted Mukha Singh under Section 302, I. P.C. and sentenced him to imprisonment for life. Meja Singh was acquitted under Section 302/34, I. P.C. but was convicted under Section 324, I. P.C. and sentenced to two years rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to undergo two months further rigorous imprisonment.
2. Briefly stated the prosecution case is that on 4-4-1970 in the after-noon the deceased Chanandas was taking grass in a bullock cart from his field to his village Kaliyan which is situated at a distance of five miles from police station Sadar Ganganagar. The accused Meja Singh was coming on foot behind the cart with a bundle of fodder on his head. He wanted to put the bundle of fodder in Chananda's cart but the latter refused saying that it might be stolen property. This led to a quarrel between the deceased Chanandas and the accused Meja Singh (who) took it to heart. On the next day i. e. 5-4-70, it is alleged that while Chanandas and his brothers P.W. 1 Howandas and P.W. 3 Dhanu Ram were working in their field, the accused Meja Singh armed with a 'Barchha' and accompanied by his brothers Pooran Singh, Mukha Singh s/o Pooran Singh and Jeet Singh went to the field of the deceased and challenged Chanandas to get ready as death was awaiting him. Thereupon Chanandas tried to run away in the direction of the village but Mukha Singh accused thrust the spear which he was carrying with him into the abdomen of the deceased Chanandas as a result of whi6h Chanandas was fatally injured and died soon thereafter. His brother Howandas was also injured by the accused Meja Singh who inflicted a blow with a spear on his left cheek. Apprehending that he may also be killed, Howandas took up a Taqwa' lying nearby and attacked Meja Singh with the same. Dhanu Ram, another brother of Chanandas raised hue and cry and the accused made good their escape.
It is alleged that at the time of the incident Mukha Singh was armed with a spear. Meja Singh had also a spear while Pooran Singh had a pistol and Jeet Singh was empty handed. Pooran Singh is reported to have pointed his pistol towards the complainants party. The spear struck by Mukha Singh got stuck up in the body of Chanandas who was gasping for breath. Howandas pulled out the blade of the spear from the body of Chanandas and thereafter Ohanandas expired. Then Howandas accompanied by another Dhanu Ram, Panch and Kishan Chand, Sarpnch went to the police station Sadar Ganganagar and lodged the first information report of the occurrence verbally and the same was reduced to writing by P.W. 7 Iqbal Singh, Station House Officer, Sadar Ganganagar. A copy of the same has been placed on the record and marked Ex. P/l. After completing the investigation the police prosecuted all the four accused in the court of Munsif Magistrate, Sri Ganganagar, who committed them for trial to the court of the Sessions Judge, Ganganagar, who transferred the case for trial to the Court of Additional Sessions Judge No. 2, Sri Ganganagar.
3. In the course of trial the accused denied having committed any offence. The accused Meja Singh, however, appeared as a defence witness D. W. 2 and stated that he and Chanandas had a quarrel on the day previous to the occurrence. He wanted to place the bundle of fodder that he was carrying on his head in the cart of Chanandas, but Chanandas did not permit him to do so and abused him. When they reached the village, Chanandas beat him with a wooden rod. He goes on to state that on the next day i. e. 5th April, 1970 at about 12 in the noon he was going to the field of one Mohan Singh to bring fodder and while he was at a distance of 10-12 'Panvdas' from the thrashing floor of Chanandas P.W. 1 Howandas, P.W. 3 Dhanu Ram and P.W. 4 Sain Datta Ram attacked him with the various weapons they were carry, ing in their hands. Chanandas had an axe, Howandas had a 'Gandasi', Dhanu Ram had a 'Barchha' and Sain Datta Ram had also a 'Gandasi'. His case is that no doubt he struck a blow with a spear but he did so in exercise of the right of private defence of his person. He has also stated that at the time of the occurrence the accused Mukha Singh, Pooran Singh and Jeet Singh were not present at the spot.
The learned Additional Sessions Judge accepted the evidence of P.W. 1 Howandas, P.W. 3 Dhanu Ram and P.W. 4 Sain Datta Ram to the extent that Chanandas and Howandas were attacked by the accused Mukha Singh and Meja Singh in the manner, stated by the prosecution, but he did not accept their evidence as against Pooran Singh, and Jeet Singh and came to the conclusion that these accused had not participated in the occurrence and have been falsely implicat-ed. However, he found that the prosecution had failed to establish any preconcert between the two accused Mukha Singh and Meja Singh to commit the murder of Chanan-das. His finding on the point though not very clearly expressed is that Meja Singh, aggrieved of the incident which took place the previous night, suddenly launched an attack on Howandas and Mukha Singh also attacked, Chanandas of his own accord causing a fatal injury to him. To put in other words, his view seems to be that both the accused had not formed the common intention and it was just a chance encounter. In this view of the matter he held each of the accused liable for their individual acts and convicted and sentenced them as stated above. Mukha Singh was held liable for causing the murder of Chanandas and sentenced under Section 302 and Meja Singh was held liable for the injury caused to Howandas and sentenced under Section 324, I. P.C.
4. Mukha Singh and Meja Singh have filed a joint appeal from their convictions and sentences and the same has been registered as D. B. Criminal Appeal No. 52 of 1971. Aggrieved by the order of acquittal of Pooran Singh altogether and of Meja Singh under Section 302 read with Section 34, I. P.C. the State has also filed an appeal to this Court and that has been registered as D. B. Criminal Appeal No. 1022 of 1971. Instead of dealing with the two appeals separately we find it convenient to deal with the cases of each individual accused.
5. So far as Jeet Singh is concerned he has been acquitted by the trial court and there is no appeal before us from the order of his acquittal. As regards Pooran Singh, it may be stated that he was 65 years old at the time of the occurrence. He is said to be carrying a pistol in his hand but admittedly he did not use it. The prosecution has assigned no specific part to him. We are not prepared to believe that if Pooran Singh were present at the spot he would have remained standing as a silent spectator particularly when his brother Meja Singh was beaten with a 'Taqwa' by Howandas. There is no denying the fact that a pistol is a very formidable weapon to keep the enemy or assailant at bay. We are inclined to think that if Pooran Singh had been present there with the pistol, it would not have been possible for Howandas to inflict a number of injuries on the person of Meja Singh. P.W. 1 Howandas had stated that Pooran Singh simply pointed his pistol at them. In the course of cross-examination the witness has further stated that Pooran Singh simply showed his pistol, but did not fire it and that he was standing at a distance of 3 or 4 'Panvadas (15 to 20 feet) from Howandas at the time Howandas inflicted injuries to Meja Singh. The same is the evidence of Dhanu Ram and Sain Datta Ram. In our opinion, this is a case of over implication. We are extremely doubtful about the presence of Pooran Singh armed with a pistol. In this view of the matter the trial court was justified in acquit- ting Pooran Singh and we do not see sufficient ground for setting aside his acquittal.
6. We may next consider the case of Mukha Singh. The evidence of P.W. 6 Dr. S. K. Sharma, who performed the postmortem examination on the dead body of Chanandas the same day at 5.30 p.m., shows that there was a punctured wound 2'xl'x abdominal cavity deep on the right side of the chest in the eleventh intercostal space 2' lateral to the midline. On opening the dead body it was found that the posterior portion of both the lungs was congested and both the sides of heart were empty. Dyphram was punctured. The mestery was cut and the peritonium cavity was full of blood. Peri-tonium was also punctured. Stomach was full of semidigested food. The ascending colon was cut through and through. Liver was punctured H'xl'xl' on the lower border of the right lobe. The cause of death according to Dr. Sharma was haemorrhage and shock resulting from puncture of the liver.
7. The prosecution case as revealed from the first information report as well as the evidence by the eye witnesses Howandas and Dhanu Ram is that Mukha Singh struck a blow in the abdomen of the deceased Chanandas as a result of which the blade of the spear went through and through. No other injury was caused to the deceased according to the said eye witnesses. Thus, the evidence of the eye-witnesses is fully corroborated by the medical evidence. At this stage we may also observe that there is no room for doubting the presence of P.W. 1 Howandas, as admittedly he had also received injuries in the course of this incident. He was examined by P.W. 6 Dr. S. K. Sharma the same day at 3.45 p.m. and was found to have a punctured wound l'xl/6' through and through on the left cheek directed medially. Even according to the defence version as put forth by the accused Meja Singh D. W. 2, Howandas was present at the time of the occurrence though according to Meja Singh he was one of the aggressors. We also do not see any reason to doubt the presence of P.W. 3 Dhanu Ram as the same has been admitted by D. W. 2 Meja Singh. He is a brother of the deceased Chanandas and Howandas and it is very likely that he must have accompanied them that day to work in the field. Howandas lodged the first information report and he has mentioned therein the presence of Dhanu Ram as well as that of Sain Datta Ram.
8. P.W. 4 Sain Datta Ram states that he was returning from his field and on the way he witnessed the incident. As already stated above, his name has also been mentioned in the first information report. Nothing has been brought out in the cross-examination of this witness to show that he is in any way interested in the prosecution or is unfavourably disposed against the accused. His presence has also been admitted by the accused Meja Singh D. W. 2. We, therefore, do not see any reason to doubt his testimony as regards the part played by Mukha Singh. The evidence of the three eye witnesses Howandas, Dhanu Ram and Sain Datta Ram is quite consistent so far as the part played by Mukha Singh is concerned. It appears to us that the accused Meja Singh has taken the whole burden upon himself with a view to save Mukha Singh. However, we are not prepared to accept the statement of Meja Singh for the simple reason that if Meja Singh had in fact killed Chanandas, there was absolutely no reason for the witnesses to have left him out and falsely implicate Mukha Singh. As a matter of fact the complainants had a greater grievance against Meja Singh than against Mukha Singh because it is common case of both the parties that the quarrel had taken place between Chanandas and Meja Singh on the previous day and Mukha Singh had nowhere come in the picture at that time. It is, therefore, in our opinion, proved to the hilt that Mukha Singh caused the injury with a spear to the deceased Chanandas in his abdomen as a result of which Chanandas died.
Dr. Sharma has clearly stated that the injury found on the person of Chanandas was sufficient in the ordinary course of nature to cause death. The injury was caused on a vital part of the body and with a very formidable weapon namely, a spear. The spear was thrust with such a great force that it went through and through and got fixed in the abdomen and was taken out later on by Howandas after the accused had left the scene. In these circumstances he would be clearly liable under Section 302, I. P.C. for causing the murder of Chanandas unless his case falls under any of the exceptions to Section 302. We propose to deal with this aspect of the case, now, as it is Meja Singh who has raised this. We may, however, state that if this defence raised by Meja Singh finds favour with us, Mukha Singh would also be entitled to the benefit of the same even though he has not pleaded it but has denied his presence altogether.
9. learned Counsel for the appellants has urged that a number of injuriet were found on the person of Meja Singh who was examined by Dr. S. K. Sharma the tame day at 6.45 p.m. The injury report of Meja Singh is Ex. P/3 (marked by the committing court). The following injuries were found on the person of Meja Singh:-
1. Incised wound 1 1/2' X 1/4 bone deep on the left parietal region directed outwards and forwards.
2. Incised wound 2' x 1/6' x 1/6' on the left parietal region directed backwards behind injury No. 1.
3. Incised wound 2'x1/2'x bone deep on the right frontal region directed forwards.
4. Incised wound 3/4' x 1/25' x 1/2' x on the left shoulder directed backwards outwards.
5. Contusion 2' x 1 1/2' on the back of the left forearm in the lower third.
6. Abrasion 2 1/2'x 1/2 in the medial aspect of the left leg below the knee joint in the upper 1/3.
7. Contusion 1' x 1' on the bridge of the nose.
8. Contusion 7' x 1 1/2 on the left side of the back of the chest.
9. Contusion 4'xl' on the right side of the back of the chest injury No. 5 grievous and rest all simple. Injury Nos. 1 to 4 with sharp weapon and rest with blunt weapon duration within 1 day.
It is contended on behalf of the accused that Meja Singh was attacked first by the complainants and the injuries to Chanandas and Howandas were caused by the accused in the exercise of their right of private defence.
10. It may be pointed out that a counter first information report of the occurrence was lodged by Meja Singh the same day at 5.40 p.m. whereas the first information report in this case was lodged 3 hours earlier i. e. at 2 p.m. and has been marked on record as Ex. D/6. It appears to us that the first information report lodged by Meja Singh Ex. D/6, was an afterthought and was only by way of a counter-blast. In Ex. D/6 it has been stated by Meja Singh that after the occurrence when he came to his house, Jeet Singh administered liquor to him and thereafter Pal Singh took him hi a 'rikshaw' to Sri Ganganagar. Neither Jeet Singh nor Pal Singh has been examined by the defence. Their evidence would have been relevant to show as to what was the version given to them by Meja Singh immediately after the occurrence. D. W. 2 Meja Singh has stated that he was going to the field of Mohan Singh to bring fodder but Mohan Singh too has not been produced. He also stated that he had an extra 'Ohaddar' for fodder and a sickle with him, but neither a 'Chaddar' nor a sickle was found at the spot though a turban alleged to belong to Meja Singh was found there. We are not prepared to accept the version given by Meja Singh that though he was alone yet he proved to be more than a match for the alleged four assailants namely, Chanandas, Howandas, Dhanu Ram and Sain Datta Ram even though all his opponents were armed with deadly weapons such as axe and 'Gandasis. His version, as we have already observed above, appears to us to be unworthy of any trust inasmuch as if in fact he had inflicted the fatal injury to Chanandas the complainants would not have attributed that injury to Mukha Singh. There is yet another weakness in Meja Singh's defence. In his statement in the committing court marked Ex. P/20 he took a completely different stand and stated that Dhanu Ram aimed a blow with a spear at his shoulder but the blow struck Chanandas. When he was confronted with this portion of his statement, he could not give any explanation for this blatant discrepancy and all that he stated is that he made this sort of statement in the committing court falsely due to fear. We are not prepared to place any reliance on the statement of the accused Meja Singh made under Section 342A, Criminal P.C. (1898).
11. learned Counsel for the accused appellants has also argued that the accused are alleged to have come from the southern side and the deceased is also stated to have run towards the southern side to save himself. This, according to learned Counsel, is highly unnatural inasmuch as seeing the enemies the deceased dare not run towards the same direction. We have scrutinised the evidence of the witnesses in this connection and find that there is no substance in the argument. It cannot be said from what has been stated by the eye witnesses that the deceased ran exactly towards the accused who may have reached very near the deceased and the complainant's party when the latter actually saw them and, therefore, there is nothing unnatural or improbable if the deceased ran towards the south eastern side of his field even though the accused may have come from southern side. This argument, in our opinion, does not at all help the accused in their theory of self-defence.
12. learned Counsel has further referred to the statement of P.W. 4 Sain Datta Ram wherein he has stated that Chanandas had run 20 'Panvadas' when he was hit by Mukha Singh and Mukha Singh only advanced about a 'Panvada' from where he was standing and inflicted the blow to Chanandas. P.W. 1 Howandas has, however, stated that Chanandas received the blow at the hands of Mukha Singh while he was 7 or 8 'Panvadas' away from the thrashing floor in the east. All that may be said in this connection is that the distances given by the witnesses are very rough and approximate. In any view of the matter they do not make any difference so far as the question and the manner of attack are concerned. Consequently we have come to the conclusion that the accused Mukha Singh and Meja Singh were the aggressors and the plea taken by Meja Singh that injuries were caused to the deceased and Howandas in exercise of tha right of private defence is not established.
13. There is consistent evidence against Meja Singh that he caused injury with a spear on the left cheek of Howandas. The evidence of Howandas in this respect is fully corroborated by the medical evidence as well as the other eye witnesses Dhanu Ram and Sain Datta Ram whose presence at the scena of occurrence has been believed by us. Meja Singh has, therefore, rightly been convicted under Section 324, I. P.C. for causing a simple injury by a sharp weapon to Howandas.
14. The only question that remains to be decided is whether Meja Singh has been rightly acquitted of the charge under Section 302 read with Section 34, I. P.C. in respect of the murder of Chanandas. It has been argued in support of the appeal filed by the State that Meja Singh and Mukha Singh had pre-planned to commit the murder of Chanandas and in order to accomplish this object both of them had come to the field of Chanandas armed with spears and, therefore, Meja Singh should be constructively held liable under Section 34, I. P.C. for tha murder of Chanandas. We have given our anxious consideration to this matter. Admittedly Meja Singh had a quarrel with Chanandas on the previous day and consequently he was anxious to retaliate. Both of them armed with spears went to the field of the deceased Chanandas next day at 12 in the noon. The weapons with which they had armed themselves, it cannot be denied, were deadly. It is true that there is no direct evidence as to what was the common intention of the two accused and as to what common intention the two accused had formed before the commission of the crime. It is difficult in most cases to prove the intention of an individual and it has to be inferred from the act, conduct or other relevant circumstances in each case. It was observed by their Lordships of the Supreme Court in Ram Tahal v. The State of U.P. : 1972CriLJ227 :
There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it has to be inferred from tha act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.
15. In Nazir v. Emperor AIR 1948 All 229 :1948) 49 Cri LJ 271, Reghubar Dayal, J., as he then was, speaking for the Court observed:
We are of opinion that each of the persons joining in the commission of a cri- minal act is liable for any such act committed by any of the persons joining as was done in furtherance of the common intention and that it is not necessary for the liability of all that they must have the common intention about the exact result which was to follow from the act or about the offence which would be made out on account of the actual physical act and its result. We are of this opinion as we consider it practically impossible for any set of people to decide beforehand all the acts which may have to be performed in order to carry out the common intention. Only such acts are not to be deemed to be the acts done in furtherance of the common intention as could not have taken place ordinarily in carrying out of the common intention.
16. Now, applying the principles laid down by their Lordships in the above case we find that the accused appeared on the scene armed with spears and Mukha Singh mounted the attack on Chanandas with such a force that a through and through injury in the abdomen was caused with a spear which was thrust in the abdomen of the deceased. It is further clear from the evidence of Howandas that when he tried to go near the deceased to save him Meja Singh inflicted injuries to Howandas with a spear. Both the accused subsequently ran away. The acts of the accused have to be judged in the background that Meja Singh had a quarrel with the deceased on the previous day and naturally he was the aggrieved party. It appears to us that in order to wreak vengeance he took Mukha Singh with him, a comparatively young and stout fellow, to help him in wreaking the vengeance against Chanandas. Taking into consideration the totality of the circumstances we have come to the conclusion that both the accused had a common intention to cause the death of Chanandas. It further appears to us that Mukha Singh being younger and stronger took the lead and finished Chanandas with a single blow with the spear which he seems to have wielded with great force and thereafter when Howandas tried to go near his brother, the deceased Chanandas, Meja Singh injured him also but Howandas was able to find put a Taqwa and repelled the attack of Meja Singh. In our opinion, the attack was a premeditated one and there is no justification why Meja Singh should not be made liable for the act of other confederate Mukha Singh as was likely to be committed in carrying out the common intention of beating Chanandas with a spear. It would have been normally foreseen and even contemplated by both the accused that by mounting an attack on the deceased with spears they would cause his death. In this view of the matter Meja Singh has been wrongly acquitted of the offence under Section 302 read with Section 34, I. P.C.
17. In the result we dismiss appeal No. 52/61 filed by the accused Mukha Singh and Meja Singh. We allow the appeal filed by the State in part qua Meja Singh only and set aside his acquittal under Section 302 read with Section 34, I. P.C. He is convicted under Section 302 read with Section 34, I. P.C. for causing the murder of Chanandas and is sentenced to imprisonment for life. He is on bail. The Chief Judicial Magistrate, Sri Ganganagar is directed to get him arrested and send him to jail to serve out the sentence awarded to him. The sentences awarded to him under Section 302 read with Section 34, I. P.C. and under Section 324, I. P.C. shall run concurrently and he will be entitled to the benefit of Section 428, Cri. P.C. 1973. The State appeal against Pooran Singh is dismissed.