S.S. Vyas, J.
1. By his judgment dated February 22, 1978, the learned Sessions Judge, Udaipur convicted and sentenced the three accused appellants as under:
____________________________________________________________________Name of accused Section under which Sentence awardedconvicted____________________________________________________________________1. Kela 302, I.P.C. Imprisonment forLife2. Mst. Baski 302/34, I.P.C. Imprisonment forLife3. Bhera (i) 302/34, I.P.C. Imprisonment forLife(ii) 324, I.P.C. Three years' rigo-rous imprisonment(His sentenceswere directedto run concurrently______________________________________________________________________
The accused have come up in appeal to challenge their conviction and sentence. Since all the three appeals are directed against one and the same judgment, they were heard together and are disposed of by a common judgment.
2. Briefly recalled, the facts and circumstances leading to the prosecution and conviction of the accused appellants were that accused Kela and Bhera are real brothers and accused Mst. Baski is their real sister. They are residents of village Gadliya district Udaipur. Heera the deceased victim in the case was the real brother of P.W. 3 Otta of village Samed situate not far away from Gadliya. Mst. Laxmi d/o Wajja of village Neruch was betrothed to the son of P.W. 3 Otta nearly before five years of the occurrence. She was taken away by the maternal uncle of accused Kela. Later on Laxmi left him and started living with Babla, the son of P.W. 3 Otta. This annoyed accused Kela. On the next day of Dipawali 1976 i.e. 23-10-76, accused Kela and Bhera went in the morning to the house of Jeta Patel in village Gadliya for exchange of pleasantries as is the usual costom in that area P.W. 3 Otta, P.W. 6 Roopa and deceased victim Heera also went there for the same purpose. It is alleged that there accused Kela expressed his annoyance and thereatened to finish Heera In the evening, Otta, Roopa and Heera were returning to their village. When they reached near the river situate village Gadliya, Otta and Roopa crossed it but Heera lagged behind. While Heera was on the other side of the river, the accused persons came there. Accused Bhera and Mst. Baski caught hold of Heera. Accused Kela took out a nife and thrusted it in the abdomen of Heera. Heera raised cries and fell down. Otta and Roopa turned back to help Heera. Accused Bhera thereupon shot arrows towards them. The arrow injured the right elbow of Roopa. The accused thereafter made good their escape. Roopa, Otta and some other persons gathered at the scene of occurrence. There was profuse bleeding from the wound of Heera. He was immediately taken for treatment to General Hospital, Udaipur. His injuries were examined on 24-10-76 by the Medical Jurist Dr. Tej Prakash (P.W. 7). The injury report prepared by him is Ex.P. 2. One stab wound in the right umbilical region was found. Since his condition was precarious, Dr. Tej Prakash informed the Police P.W. 2 Kanbaiya Lai, Station House Officer Hathipol, Udaipur. He immediately went to the hospital with Judicial Magistrate Shri Dhanraj (P.W. 4) Shri Dhanraj recorded the statement, Ex.P. 11 of Heera at about 10:30 a.m Despite treatment, Heera did not survive and succumbed to the injury at about 4.15 P.M. on that very day. The post mortem examination was conducted by Dr. Tej Prakash. He found the following injuries:
(1) Stab wound 3 1/2 cm. x 1 1/2 cm. x peritoneal cavity deep in the right umbilical region. Vertical. Gut protruding from the wound. Margins are clean but slight ragged on upper pole of wound.
(2) Stitched wound, approximated by the two stitches of veneses. Just above medical malleous transverse 1 1/2 cm. long.
Stab wound in the umbilical region on right side 3 1/2 cm. x 1 1/2 c..m. x peritoneal cavity deep. Congested, peritoneal tear 3 1/2 cm. x 1 1/2 cm. in umbilical region on opening foul smelling gas came out, peritoneal cavity full of foul smelling fluid blood tinged with some facial matter.
The doctor was of the opinion that the cause of death was septic, shock as a result of peritonitis and gut perforation caused by stab wound abdomen. The injury was stated to be ante mortem and sufficient in the ordinary course of nature to cause death. The post mortem examination report issued by him is Ex.P.1. The inquest report of Heera's dead body was prepared by Head Constable Shri Bhanwar Lal (P.W. 5). P.W. 2 Kanhaiya Lal, Station House Officer sent the inquest report the post mortem report and the dying declaration of the deceased victim to Police Station, Bikeria alongwith his latter as the offence was committed within the local, limits of Police Station. Bikeria. The Police Bikeria registered a case and proceeded with investigation. The accused were arrested. The place of occurrence was inspected. The blood-stained dagger was recovered in consequence of the, information furnished by accused Kela whilst under Police custody. After when the investigation was over, the Police presented a challan against the accused appellants in the court of Additional Munsif and Judicial Magistrate, Udaipur, who in his turn committed the case for trial. The learned Sessions Judge framed a charge under Section 302 and 307/34 against Kela, 302/34 and 307/34 against Mst. Baski and 302/34 and 307, IPC. against Bhera. The accused pleaded not guilty and faced the trial. During trial, the prosecution examined 307 witnesses and filed some documents. In defence, no evidence was adduced by the accused persons. On the conclusion of trial, the learned Sessions Judge held that no offence under Section 307 I.P.C. was made out. The other charges were held to have been brought home to the Excused, The accused appellants were consequently convicted and sentenced as mentioned above.
3. Before proceeding further, it may be mentioned that the accused persons were convicted on the testimony of the two eye witnesses viz., P.W. 3 Otta and P.W. 6 Roopa and the dying declaration Ex.P. 12 recorded by the Judicial Magistrate Shri Dhanraj.
4. Accused Kela passed away during tie pendency of appeal and this fact was not disputed by the learned Public Prosecutor. As such, the appeal of accused Kela due to his death, stands abated.
5. Keeping in view the over whelming evidence of the two eye witness Otta and the dying declaration Ex. P. 12, recorded by Judicial Magistrate, the learned Counsel for the accused appellants Bhera and Mst. Baski did not challenge the finding of the trial court that accused Bhera and Mst. Baski held the deceased victim Keera and accused Kela thrusted the dagger in his (deceased victim) abdomen. The learned Counsel also did not challenge the finding of the Court below that offence made out against accused Kela is that under Section 302, IPC. What has been challenged by him before us is the finding of the learned Sessions Judge in applying Section 34, IPC. It was argued that in the facts and circumstances of the case, Section 34, IPC. It was wrongly pressed into service by the Trial Court in convicting the accused appellants under Section 302, I.P.C. on the basis of sharing the common intention. It was argued that evidence of the eye witnesses and dying declaration no where reveal that accused Bhera and Mst. Baski knew it that accused Kela had a knife with him. As such the two accused cannot be set to have shared the common intention with accused Kela in causing the murdr of victim Heera. In reply, the learned Public Prosecutor supported the finding of the Court below and submitted that the three accused came together. Two of them caught hold of the victim and the third (Kela) caused stab injury. As such it can be safely inferred that accused Bhera and Mst. Baski also shared the common intention and the murder WJS committed in furtherance of their common intention. We have given our thoughtful consideration to the contentions raised before us.
6. The facts are not at all in dispute. According to eye witnesses end the dying declaration, accused Bhera and Mst. Baski caught hold of Heera and accused Kela thrusted the dagger in his abdomen. The pertinent question which arises for our deliberation and decision is whether in these circumstances Section 34, I.P.C. can be invoked to make Bhera and Mst. Baski liable under Section 302, IPC. We have carefully gone through the dying declaration as well as the evidence of the two eye witnesses.
7. Now, to constitute the common intention, it is necessary that the intention of each of the accused is known to others and is shared by them. There is no evidence to show as to how and in what manner and position accused Mst. Baski and Bhera caught the victim. Both the eye witnesses and the dying declaration are silent on this important issue. There is again no evidence that accused Kela was waiving or displaying or brandishing the dagger when the three accused persons came to the victim. There is absolutely no evidence again that these two accused had the knowledge that accused Kela had a dagger with him. In the context of these circumstances we cm only infer that it was the sudden act of Kela when he stabbed the victim, it if may be repeated that accused Kela had caused only one injury to the victim. There is again no evidence in the prosecution camp to show or suggest that accused Mst. Baski and Bhera. exhorted or incited or instigated or prompted accused Kela in any manner to stab the victim, It does not appear that there was any pre-arranged plan among the three accused persons to commit the murder of Heera. We are, therefore, impelled to say that it was the individual act of accused Kela when he stabbed Heera. As such, accused Bhera and Mst. Baski cannot be held responsible for Kela's causing the stab wound to the victim.
8. In State of Uttar Pradesh v. Ram Kishan and Ors. 1976 SCC (Criminal) 443, the co-accused had caught hold of the victim and death was caused by stab wounds inflicted by knife by one of their associates. As many as 8 injuries were caused to the victim including on the abdomen, chest and other vital paris. It was held that the co-accused had shared the common intention with the principal accused to cause grievous hurt under Section 326, IPC.
9. In Bhabanand Sharma and Ors. v. The State of Assam 1977 SCC (Criminal) 602, one accused caught hold of the hands of the deceased and the death was caused the fatal injuries to him. It was held that Section 34, I.P.C. cannot be made applicable to the accused who merely caught hold of the hinds of the victim. It was observed:
As regards 'B' merely because he caught hold of the hands of the deceased, it is difficult to hold that he shared the common intention of the other two accused in causing the death of the deceased. His intention was to join in the commission of the acts by the other two with the intention of getting the deceased assaulted severely with the' knowledge that such an assault in all probability and likelihood might result in his death. His participation in the crime, therefore, did not take him to the extent of sharing the common intention to cause murder. Applying the principle of law under Section 34, I.P.C. the case of 'B' can be separated from that of the other two accused and he could be found guilty only under Section 304, Part II as he had intentionally joined in the commission of an act with the knowledge that the assault on the deceased was likely to result in his death.
10. In Shambha Kuar v. The State of Bihar 1982 SCC (Criminal) 264, accused Shambha Kuar caught hold of the victim and the other accused Mandip gave blows to him with a knife. Accused Shambha Kuar was convicted under Section 302/34, IPC. Their Lordships of the Supreme Court held that Section 34, I.P.C. was wrongly applied. It was observed:
All that appears in the evidence is that Shambhu Kuar caught hold of the deceased and the latter scuffled to get himself released. Immediately thereafter Mandip took out a knife and started assaulting the deceased. From the mere fact that the appellant caught hold of the deceased and scuffled with him, while Mandip took out a knife and commenced the assault it cannot be inferred beyond reasonable doubt that he shared the intention of Mandip to murder the deceased. At the most, he was vicariously liable for an offence under Section 326 read with Section 34, IPC. We, therefore, partly allow this appeal, alter the conviction of the appellant to one under Section 326 read with Section 34, IPC.
11. So also, in the instant case, as discussed above, the facts and circumstances of the case impel us to hold that accused Bhera and Mst. Baski did not share a common intention with accused Kela. The act of stabbing by accused Kela was his individual act and the remaining two accused cannot be saddled with criminal liability for it. We are, therefore, unable to maintain the conviction of accused Bhera and Mst. Baski under Section 302/34, IPC. All that can be said is that-these two accused shared in a common intention with accused Kela in causing severe injury to the victim and nothing further.
12. In the result:
(1) Due to the death of Kela, his appeal stands abatted.
(2) The appeals of accused appellants Bhera and Mst. Baski are partly allowed. 1 heir conviction and sentence under Section 302/34 are set aside and instead they are convicted under Section 326/34, I.P.C. and each is sentenced to five years rigorous imprisonment. The conviction and sentence of accused Bhera under Section 324, I.P.C. is maintained. His sentences are directed to run concurrently.
(3) Accused Mst. Baski was arrested on 28-10-76 and was released on bail during pendency of appeal on 28-11-81. She has, thus, served more than five years' sentence. As such, she need not surrender. Her bail bonds shall stand cancelled.
(4) Accused Bhera was arrested on 28-10-76 and is in custody since then. He has, also, thus, served more than five years' of sentence. He shall be forthwith released if not wanted in any other case.
(5) The appeals are accordingly disposed of in the manner indicated above.