Mahendra Bhushan Sharma, J.
1. Additional Sessions Judge, Deeg, District Bharatpur under his judgment dated 4th April, 1981, has convicted the accused-appellant Subhan son of Sultan under Sections 302 and 323, IPC and has further convicted the accused-appellant Chhaju under Section 302/34, IPC. Both the accused-appellant have been convicted under Section 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 200/- and in default of payment of fine to under-go three months' rigorous imprisonment. Accused-appellant Subhan has further been sentenced to under-go six months' rigorous imprisonment under Section 323, IPC. Both the substantive sentences of Subhan have been ordered to run concurrently.
2. In village Kawanaka the fields of the accused persons and of the deceased, Abdul Gani, are situated. The position of their fields is deppicted in the site-plan Ex. P. 9, from which it will appear that the fields of Abdul Gani and Abdul Suleman and Yakub, two brothers of the deceased. Abdul Gani, are in the north of the fields of the accused persons. The case of the prosecution is that there was a 'med' in between the two fields and on 8th August, 1980, the above mentioned 'med' had been constructed by the accused persons. On 9th August, 1980 at about 5 p.m. when Abdul Gani, deceased, went to his field, he saw that the accused persons had demolished that 'med and had ploughed that portion also. When Abdul Gani, deceased, tried to re-construct the 'med', it is alleged, the accused persons asked him not to do so. On this, Abdul Gani said that he was only re-constructing his own 'med'. According to the case of the prosecution, both the accused persons attacked Abdul Gani deceased. The accused persons gave lathi-blows. On hearing the alarm of Abdul Gani, accused Abdul Suleman and Yakub, his brothers, reached the spot and saw the incident. He lodged Ex. P. 3, report, on 10th August 1980 at the police Station, Deeg, in which he named Bagadi son of Ladla, Yaqub son of Chhotalal and Juharu son of Jessu as eyewitnesses of the occurrence. A case was registered and investigation was set in motion.
3. Dr. R.S. Gupta (PW 1) conducted the post-mortem examination on the dead body of Abdul Gani. He found the following external injuries:
(1) Lacerated wound 1-1/2' x 1/2' x bone deep on the right eyebrow
(2) Oblique lacerated wound 3-1/2' x 1/2' x bone deep on the scalp at left parietal ominence, extending from 1' left to the mid-line towards hair margine with depressed fracture of left parietal bone with clotted blood.
(3) Defused swelling 1-1/2' x 3/4' on the back of left palm on unlar side.
(4) Red bruise on the outer surface and middle part of the right upper arm 2-1/' x 1'.
(5) Abrasion 1/2' x 1/4' with clotted oozed blood on the top of the right shoulder at front surface.
4. In the opinion of Dr. Gupta all the injuries were ante mortem caused by blunt object. Injury No. 2 was grievous and the rest were simple. On opening the corpse he found collection of clotted blood in the left occipi-to-parietal region (in relation to injury No. 2) with depressed fracture of left parietal bone Membrances were lacerated (in relation to injury No. 2). Brain was lacerated with collection of clotted blood with intracranial haernorrhage. Stomach was distended with gas and was empty. In his opinion, the cause of death was shock and haemorrhage due to the injury on the scalp resulting in depressed fraction of the skull bone and intracranial haemorrhage with laceration of brain. The post-mortem report is Ex. P. 1. During the course of the incident when Abdul Suleman had gone to the spot and intervened accused Subhan, is said to have given lathi blows to him. The injuries of Abdul Suleman (PW2) were examined by Dr. Gupta on 12th August, 1980. Dr. Gupta found abrasion irregular 3/4' x 1/2' on the left shoulders joint 2-1/2' posterior to left acromion. The injury was simple and caused by blunt object. The duration of the injury was within 36 to 72 hours.
5. The SHO seized and sealed the blood-stained earth from the place of occurrence, prepared inquest report on the dead body of Abdul Gani and after investigation filed charge-sheet against the accused persons.
6. During the trial, on behalf of the prosecution as many as seven witnesses were examined, including Abdul Suleman (PW 2), Yakub (PW 3), Bagadi (PW 5) and Juheru (PW 6) as eye-witnesses of the occurrence. Bagadi (PW 5) and Juharu (PW 6) did not support the prosecution case and were declared hostile. After the close of the prosecution evidence the accused per-sons were examined under Section 313 Cr.P.C., 1973 to explain the circumstances appearing against them in the evidence of the prosecution witnesses. They stand or, a bare plea of denial. The accused persons examined Mahmmoda (DW 1) and Nirmal (DW 2) in, their defence. The learned Additional Sessions Judge convicted and sentenced both the. accused-appellants as mentioned above.
7. The only argument advanced by the learned, counsel for the accused appellants is that the learned Additional Sessions Judge had wrongly convicted the accused, Subhan, under Section 302, IPC. According to the learned counsel for the accused-appellants, looking to the facts and circumstances of the case that the quarrel took place all of a sudden, without premeditation, at best an offence under Section, 304 II, IPC is made out against accused Subhan. He further contends that it is not a case where it can be said that both the accused-appellants gave beating to Abdul Gani in furtherance of any Common intention. It cannot be said that the intention of the accused persons was to cause death of Abdul Gani as the quarrel took place all of a sudden. Section 34, IPC is not attracted and the accused, Chhaju cannot be convicted under Section 302 or 304-II IPC with the aid of Sections 34 IPC.
8. We have given our careful consideration to the arguments advanced by the learned counsel for the accused-appellants and the learned public prosecutor for the State.
9. The alleged two eye-witnesses Bagodi (PW 5) and Juharu (PW 6) did not support the prosecution. There is still the evidence of Abdul Suleman (PW 2) and Yakub (PW 3), the two eye-witnesses of the occurrence, who stated that Subhan gave blows by lathi on the head of Abdul Gani. Their evidence is corroborated by the evidence of Dr. Gupta (PW 1) who found injury No. 2 on the scalp. It can, therefore, be said that accused Subhan is the author of injury No. 2 in the scalp of Abdul Gani.
10. So far as accused Chhaju is concerned, it is not the case of the prosecution that he gave any fatal blow to the deceased, Abdul Gani and all that has been said by the, eye-witnesses, Abdul Suleman (PW 2) and Yakub (PW 3) is that when as a result, of blow on the head given by Subhan, Abdul Gani fell on the ground, Chhajju gave a lathi blow on the right eye-brow. The other blow which is alleged to have been given by Chhaju on Abdul Gani is on his palm and right shoulder. Thus it can be said that Chajju caused simply injury to Abdul Gani. It is also stated by Abdul Suleman (PW 2) that when he intervened, accused Subhan gave a lathi blow to him and his statement to this extent is corroborated by the statement of Dr. Gupta (PW 1) who on examination found an injury on his left shoulder by blunt weapon. Thus, the fatal injury to the deceased was given by Subhan.
11. Before we deal with the question of Sections 34 IPC in this case, it would be appropriate to first deal with the question whether ah offence under Section 302, IPC or Sections 304-11, IPC is made out against the accused-appellant, Subhan.
12. It has been stated by Abdul Suleman that before the date of incident there was no quarrel between them and the accused person in connection with the 'med' and the quarrel took place on that day all of a sudden. There is material on record that the fields on which the quarrel took place between Abdul Gani and the accused appellants, were lying fallow, and no crop was standing there. It appears from a perusal of site-plan, Ex. p. 9 that there were no signs showing that the accused persons had ploughed the portion of the 'med' also, which is said to be existing between the fields of the accused persons and the deceased, Abdul Gani. on the date of occurrence and, the occurrence took place all of a sudden. So far as accused Subhan is concerned, he gave a blow by lathi on the head of the deceased, Abdul Gani. Thereafter also blows were given, but no blow was given on the vital part of the deceased. Under these circumstances, it can be said that the accused had the knowledge that death will be caused and therefore, he is liable to be punished under Section 304-II IPC. We, therefore, find that the offence of accused-appellant Subhan falls under Section 304-II IPC, and not under Section 302, IPC as held by the learned Additional Sessions Judge.
13. We have already stated while narrating the facts of the case that the occurrence took place all of a sudden and the accused persons were in fields which were adjacent to the fields Of the deceased, Abdul Gani. Lathi is such a weapon which every villager carries with him. Under such circumstance, when the quarrel starts both the accused persons gave beating to Abdul Gani and caused five injuries to him, out of which injury No. 2 was on the scalp. No blow was repeated on the vital part of the body. It cannot be said that the intention of the accused-persons was to cause the death of Abdul Gani, or the beating was administered to the deceased, Abdul Gani, by the accused persons in furtherance of the common intention of both the accused persons. The accused persons can be held liable for their own acts. We are, therefore of the opinion, that Chhaju cannot be convicted under Section 304-11, IPC. He is convicted 323, IPC.
14. In the result, the appeal is partly allowed. The conviction of accused-appellant Subhan is altered from s 302, IPC to Sections 304-II, IPC and he is sentenced to undergo five years' rigorous imprisonment. We maintain his conviction under Section 323, IPC and sentence awarded to him by the learned Additional Sessions Judge, Deeg. The sentences shall run concurrently. So far as accused-appellant Chhaju is concerned, his conviction under Section 302/34, IPC is altered to Sections 323, IPC. He has remained in custody for about two years. We sentence him to one year's rigorous imprisonment. He is already on bail. He need not surrender. Accused Subhan is in jail. He may be informed of the result of the appeal.
15. A copy of this judgment should be sent to the Superintendent, Central Jail, Jaipur.