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Nanu Ram and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 154 of 1980
Judge
Reported in1984WLN(UC)511
AppellantNanu Ram and ors.
RespondentState of Rajasthan
Excerpt:
(a) criminal trial - appreciation of evidence--testimony of witnesses convincing & inspiring conviction witnesses received injuries & their presence is not doubtful--names mentioned in promptly lodged fir--held, slight change in their version at trial & fir is not sufficient to discard their evidence.;the testimony of pw 1 bhera ram, pw 2 smt. cnanda, pw 4 mana ram, pw 5 kusalaram, pw 6 mohan, pw 7 mohan ram and pw 13 hukmaram is convincing and inspires confidence. it is true that some of them are the close relatives of the deceasedvictim being his father, sons, brother and widow. but that is not a sound reason to dismiss what they testified on oath. pw 2 smt. chanda, pw 4 manaram and pw 13 hukma cam are the injured victims. their presence on the spot is not open to any doubt......s.s. byas, j.1. by his judgment dated march 31, 1980, the learned sessions judge, churu convicted and sentenced the two appellants as under:s. no. name of accused under section sentence awarded1. nanu ram 302/34, i.p.c. imprisonment for life with a fine of rs. 250/-, in default of the payment of fine to undergo three months further rigorous imprisonment, 307/34, i.p.c. four year's rigorous imprisonment with a fine of rs. 150/- in default of the payment of fine, to further undergo two months' r.i. 325/34, i.p.c. one year's rigorous imprisonment with a fine of rs. 100/-, in default of the payment of fine to further undergo one month's rigorous imprisonment. 323, i.p.c. six month's rigorous imprisonment. 447, i.p.c. three month's rigorous imprisonment.2. kana ram 302/34, i.p.c......
Judgment:

S.S. Byas, J.

1. By his judgment dated March 31, 1980, the learned Sessions Judge, Churu convicted and sentenced the two appellants as under:

S. No. Name of accused under Section Sentence awarded

1. Nanu Ram 302/34, I.P.C. Imprisonment for life with a

fine of Rs. 250/-, in default

of the payment of fine to undergo

three months further rigorous imprisonment,

307/34, I.P.C. Four year's rigorous imprisonment with a

fine of Rs. 150/- in default of the payment

of fine, to further undergo two months' R.I.

325/34, I.P.C. One year's rigorous imprisonment with a

fine of Rs. 100/-, in default of the

payment of fine to further undergo one

month's rigorous imprisonment.

323, I.P.C. Six month's rigorous imprisonment.

447, I.P.C. Three month's rigorous imprisonment.

2. Kana Ram 302/34, I.P.C. Imprisonment for life with a

fine of Rs. 250/-, in default of the

payment of fine to further undergo

three month's rigorous imprisonment.

307/34, I.P.C. Four year's rigorous imprisonment with

a fine of Rs. 150/-, in default of the

payment of fine to further undergo two

month's rigorous imprisonment.

325/34, I.P.C. One year's rigorous imprisonment with

a fine of Rs. 100/-, in default of the

payment of fine to further undergo one

month's rigorous imprisonment.

323, I.P.C. Six month's rigorous imprisonment.

447, I.P.C. Three month's rigorous imprisonment.

The substantive sentences were directed to run concurrently. The accused have come up in appeal to challenge their convictions and sentences.

2. Briefly staled, the case set up by the prosecution is that the well and agricultural lands of PW 1 Bhera Ram Jat are situated in Rohi of village Daudsar district Churu, as shown in site plan Ex. P 17. He had constructed a Dhani there, in which he was living with his deceased son Laxman Ram and other members of his family. Contiguous in the East of his field is situated the field of the accused persons. There existed a way from times immemoriable running West to East in the field of Bhera Ram to go the field of the accused. A few years before the incident, Bhera Ram closed this way and provided another way in the North of it in his field. This new way was also closed by Bhera Ram and another way was provided to the accused persons in the North of his well. This way has been shown by mark '6' in Ex P 17. The accused had been using this way nearly for a year before the incident. There also exists a public way running North to South in the field of Bhera Ram which goes from villape Gaurisar to village Kaikuriya. When Bhera Ram closed the ancient way of the accused, the accused lodged a report with police against him in which his son Laxman was arrested. The accused also filed a suit against Bhera Ram for this ancient way.

3. At the time of sun-rising on November 20, 1978, PW 1 Bhera Ram and his son Laxman were sitting at their well while his grandsons Hukmaram (PW 3) and Manaram (PW 4) were operating the well. The appellants accompanied with their brother Teja Ram (co-accused but acquitted), and father Ganpat Ram and uncle Sukha Ram came in a cart on the way shown by marks '6' in Ex P 17. Ganpat Ram and Sukha Ram were standing at some distance. Accused Nanuram had a wire-wrapped lathi while accused Kanaram had a Chosangi. Accused Tejaram had an ordinary lathi. The accused persons gave a call that since they (Bhera Ram and the members of his family) have blocked their way, they would teach them a lesson. Apprehending danger, Laxman got up and proceeded to go to wards his Dhani. Thereupon accused Nanuram struck a blow of his lathi on the head of Laxman. Laxman fell down. Thereafter the appellants and Tejaram struck blows to him with their weapons. Hukmaram (PW 4) and Manaram (PW 4) came there to help their father Laxman but they too were not spared and were severely beaten by the appellants and Tejaram. Laxman's wife Smt. Chanda (PW 2) also came there and she too was not spared. The victims raised tries. Kusalaram (PW 5), Mohanram (PW 6) Mohanram (PW 7) & some other persons came there on the spot. The appellant and Tejaram there after went away taking their camel-cart with them. There was profuse bleeding from the wounds of Laxman Ram and he passed away instantaneously on the spot. PW I Bheraram left for Police Station, Ratangarh and reached there at about 4.00 P.M. and verbally lodged report Ex. P1 of the occurrence. The police registered a case and proceeded with investigation. The Investigating Officer Pannaram (PW If) arrived on the spot and prepared site plan (Ex. P17). He also seized and sealed the blood-stained soil from the place of occurrence. He prepared the inquest report of the dead-body of Laxman. The post mortem examination of the dead-body of Laxman was performed on November 21, 1978 by PW 8 Dr. P.P. Gupta, Medical Jurist, Group Hospital, Ratangarh. He noticed the following ante-mortem injuries on the victim's dead body:

External

1. Lacerated wound 6 2 cm bone deep on left fronto parietal region middle part with haemotoma spreading all around and in sub-apersuritic region oblique left eye is ecchymised

2. Contusion 6 x 5 cm x 5 cm above right wrist dorsal with fral of right radious and ulna

3. Contused wound 4 x 2 cm x bone deep 7 cm x bone deep 7 cm above right lateral mallelous with Trace of fibula and tibia

4. Contusion 6 x 3 cm 6 cm above left fibula and tibia

Internal

1. Fracture of left frontal and parietal bones. Fractures were of depressing type. Fracture line was joining on right side through front parietal sutures into temporal bone.

The doctor was of the opinion that Laxman Ram died due to fracture of right fronto and parietal bones with sub-dural haemorrhage and shock. The post monem examination report issued by him Ex. P 11.

4. Dr. Gupta also examined the injuries of the injured victims on November 20, 1978. He noticed ten injuries on the person of Hukmaram (PW 3), 15 injuries on the person of Manaram (PW 4) and 18 injuries on the person of Mst. Chanda (PW 2). All these injuries were caused by blunt object. All the injuries of Smt. Chanda (PW 2) were found simple. The X-ray examination revealed the fracture of the left fibula of Hukmaram and fracture of fronto-parietal bones of Manaram. The injury and X-ray examination reports of these victims are Ex. P3 to Ex. P9. The appellants were arrested. The blood-stained clothes of the deceased-victim were seized and sealed. In consequence of the information furnished by the appellants, lathi and Chosangi were recovered. After, when the investigation was over, the police filed a challan against the appellants and Tejram in the Court of Chief Judicial Magistrate, Churu, who in his turn committed the case for trial to the Court of Sessions Judge, Churu. The learned Judge framed charges under Sections 302/34, 307/34, 325/34, 323 and 447, I.P.C. against them, to which they pleaded not guilty and demanded trial. Accused Teja Ram. who was 12 or 13 years of age, pleaded alibi and stated that he was falsely implicated. The appellants admitted their presence on the spot but gave a counter version of incident. According to them, they were going in a camel-cart to their field through the way provided to them by the complainant party in its field. While they were still in that way, Laxman (deceased-victim) and others came there and prevented them from going further. Thereupon they (appellants) turned their camel-cart in the way which runs from Gaurisar to Raipuriya. The members of the complain nant party also blocked that way and forcibly took away their camel-cart to their (complainant party) Dhani. It was submitted that the police have only put up a truncated version of the occurrence and have concealed the real facts. In support of its case, the prosecution examined 17 witnesses and filed some documents. In defence, the accused examined two witnesses. On the conclusion of trial, the learned Sessions Judge found no incriminating material against accused Tejram. He was consequently acquitted of the offence he was charged with. The learned Judge took the prosecution story substantially true and proved against the appellants. He found no merit in the version put forth in defence by the appellants. The appellants were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their convictions and sentences, the appellants have taken this appeal.

5. We have heard Shri B.R. Purohit, learned Counsel for the appellants, and the learned Public Prosecutor Shri M.C. Bhati assisted by Shri M.L. Garg. We have also gone through the case file carefully.

6. Mr. Purohit did not challenge the number and nature of injuries sustained by the injured victims PW 2 Smt. Chanda, PW 3 Hukmaram and PW 4 Manaram. He also did not challenge the opinion of Dr. Gupta relating to the cause of death of Laxman Ram. We, therefore, feel no necessity to deal with the medical evidence.

7. In assailing the conviction of the appellants, the first contention raised by Mr. Purohit is that the evidence of the ocular witnesses has been wrongly relied upon by the Court below in convicting them. It was argued that the eye witnesses have been found false in respect of three of the five culprits by the police and the trial court. The story disclosed in the First Information Report against Ganpat Ram, Sukha Ram and Tejaram has been given up during investigation and trial. In view of these facts and circumstances, the testimony of the eye witnesses against the appellants should not be accepted as true and reliable. Mr. Purohit took us to the FIR Ex. P 1 and the statements of the eye witnesses.

8. In FIR Ex. P. 1 lodged by Bhera Ram (PW 1), who is father of the deceased-victim and an eye witnesses of the occurrence, it has been stated at the police that the appellants accompanied by their brother Tejaram (accu-sed acquitted by the court below), their father Ganpat Ram and uncle Sukha Ram, came together in the camel cart at the place of occurrence. All of them were armed with lathies. These five miscreants struck blows to the deceased-victim and those who went to rescue or help them. During trial, the eye witnesses PW 1 Bhera Ram, PW 2 Smt. Chanda, PW 3 Muknaram, PW 4 Mana Ram, PW 5 Kusalaram, PW 7 Mohan (son of deceased victim) and Hukam Ram PW 13 stated that though Ganpat Ram and Sukharam had come alongwith the appellants in a camel cart, they (Ganpat Ram and Sukha Ram) remained standing at some distance in the field of Prabhu Ram and did not arrive at the place of incident where the deceased victim and other injured persons were landed blow. They, of course, stated that accused Tejaram was also with the appellants and took part in beating the victim but their this version was not accepted as true because the independent eye witness Mohan (PW 6) did not support the other witnesses on this count.

9. The pertinent question which arises for decision is whether the direct evidence of the aforesaid ocular witnesses should be discarded in toto simply because of the above discrepancy in the FIR and the version put forward during trial. It may be mentioned that during trial all these eye witnesses stated nothing against Ganpat Ram and Sukharam though they deposed that they came with the appellants in the camel cart but got down in the field of Prabhu Ram and did not arrive at the place of actual incident. In our opinion, this slight improvement is not sufficient to throw away the entire evidence of these witnesses. We may mention that Ganpat Ram is the father of the appellants and Sukharam is their real uncle. The very fact that the eye witnesses, most of whom are injured victims, have stated nothing during trial and investigation against Ganpat Ram and Sukha Ram, suggests that what they stated in the court is the true version of the incident. As regards accused Tejaram, his age at the time of the incident was nearly 12 years. His presence on the place of occurrence was found doubtful because PW 6 Mohan did not support the prosecution case against him.

10. All the eye witnesses named above have stated that the appellants came in a camel cart to the place of occurrence. Accused Nanu Ram had a lathi wrapped with wires while accused Kanaram had a 'chosangi' lathi with him. Accused Nanuram struck a blow on the head of the deceased-victim Laxman Ram (which proved fatal' and caused his death). Laxman Ram fell down. Thereafter both the appellants struck blows to him. This is a consistent version given by all the eye witnesses except Mukna Ram (PW 3) who has turned hostile. The testimony of PW 1 Bhera Ram, PW 2, Smt. Chanda, PW 4 Manaram, PW 5; Kusalaram, PW 6 Mohan, PW 7, Mohan Ram and PW 13 Hukamaram is convincing and inspires confidence. It is true that some of them are the close relatives of the deceased victim being his father, sons, brother and widow. But that is not sound reason to dismiss what ihey testified on oath. PW 2 Smt. Chanda, PW 4 Manaram and PW 13 Hukam Ram are the injured victims. Their presence on the spot is not open to any doubt. The names of all these witnesses have been mentioned in the FIR Ex. P 1 which was lodged promptly without any delay. For the reasons discussed above, we find no substance in the contention of Mr. Purohit that the evidence of the above ocular witnesses should be discarded or disbelieved merely because a slight change is there in the version given in FIR Ex. P 1 and that given during trial.

11. It was next contended by Mr. Purohit that the appellants had a right of private defence of person and property. This defence was wrongly rejected by the learned Sessions Judge. It was argued that the appellants had a right of way to go to their field by passing through the way existing in the field of the complainant party. It was argued that the appellants were peacefully going in a camel cart in this way at the time of the incident. The deceased victim Laxman Ram and the members of his family obstructed them from proceeding further through this way. They further forcibly took away the camel cart to their Dhani. The appellants went to the Dhani to bring their camel cart for which they had a right. The members of the complainant party offered resistance with lathies in their hands. If in taking back the camel cart and defending their person, the appellants used violence, it must be accepted that what they did was in the exercise of the right of private defence of person and property. Mr. Purohit argued with great vehemence that the accused is not required to prove his defence to the hilt and a mere preponderance of probabilities in his favour is sufficient to outweigh the prosecution case. We have given our thoughtful consideration to this contention and find no force in it.

12. It is true that according to prosecution witnesses PW I Bheraram, PW 2 Smt. Chanda, PW 3 Muknaram, PW 3 Manaram, PW 5 Kusala ram, PW 6 Mohan, PW 7 Mohan Ram PW 13 Hukma Ram, there existed a way running West to East in the field of the complainant party through which the appellants used to go to their field situated contiguous in East of the field of the complainant party. The members of the complainant party viz., PW 1 Bhera Ram and his sons closed this way and included it in their Badi. They gave a way to the appellants running parallel to this Badi. Later on they also closed this way and included that way in their Badi. But they provided another way to the appellants to go to their field. This way has been shown by Mark '6' in site plan Ex.P.17. North (o South in the field of the complainant perty. This way has been described as running between village Gaurisar and village Rampuriya. Unfortunately, this way has not been shown by the Investigating Officer in site plan Ex. P. 17 and that has created some difficulty in the appreciation of evidence. Any way, the existence of the way shown by mark '6' and the public way running between village Gaurisar and village Rampuriya has been admitted by the prosecution witnesses.

13. According to the eye witnesses, the appellants came in a camel cart in the way shown by mark '6' in Ex. P 17 Thereafter, accused Nanu Ram gave a call to teach a lesson to the members of the complainant party for the blocking the way. It is difficult for us to accept this version of the prosecution witnesses. When the appellants were already passing through the way shown by mark '6' there was no cause of grievance to them. West appears is that the appellants instead of going, through the way shown by mark '6' took a diversion and took the way which runs North to South described as that between village Gaurisar and village Rampuriya. When they took this diversion, it appears that, the deceased-victim Laxmanram went to them and asked them not to proceed further. This fact is borne out from the statement of PW 2 Smt. Chanda who is none else but the widow of the deceased-victim. It would be useful to quote the relevant portion of her statement in her own words:

;g lgh gS fd gekjs dqa, Mk.kh ,oa ckM+h ls if'Pe dh rjQ xSkjhlj ls leiqfj;k dsk jkLrk eatj'kqnk tkrk gS A mlh jkLrs genk ekjk x;k gS A

The version of the accused is that the members of the complainant party forcibly took away their camel-cart to their well. This amount to theft and robbery on the part of the complainant party and the appellants were perfectly within their right to take away back their camel cart by using reasonable force. It is true that the accused is not required to prove his defence to the hilt and a mere preponderance of probability in his favour is sufficient to make out a proper defence. But the probability should be well-founded and must be supported by the circumstances. The well of the complainant party is at some distance from the place of occurrence, where the deceased-victim and the other injured witnesses were landed blows. The Investigating Officer found no wheel-marks of the camel cart from the place of occurrence to the well of the complainant party. All the prosecution witnesses were cross-examined on this story of the forcibly taking away of the camel cart by the complainant party. Except PW 6 Mohan, none has accepted the aforesaid version. Even PW 6 Mohan, did not state this fact during investigation There is, therefore, no substance in the contention of Mr. Purohit that the members of the complainant party forcibly took away the camel cart to their well. This story of forcibly taking away of the carnal cart by the members of the complainant party is a made-up one and we feel no hesitation in rejecting it.

14. It is true that the accused had a right to go through the field shown by digit '6' in site plan Ex. P 17 and also through the way which runs between village Gaurisar and village Rampuriya. Both these ways run through the field of the members of the complainant party. If the members of the complainant party restrained the appellants from going through the way running from village Gaurisar to village Rampuriya, it did not authorise the appellants to take law into their own hand and use violence against the members of the complainant party. The right of private defence arises only against the acts which constitute an offence. It does not arise merely because an act is unlawful and wrongful. In order to give rise to a right of private defence, the act of the complainant party must amount to an offence and not only so, it must amount to an offence of a particular kind enumerated in Clause 2 of Section 97, I.P.C. Thus, in the case of defence of property the offence must be theft or robbery or mischief or criminal trespass or an attempt of commit such offence, If the members of the complainant party did not allow the appellant to proceed in their camel cart in the way running between villages Gaurisar and village Rampuriya, it cannot be said that this act of the members of the complainant party amounted to any offence enumerated in Clause 2 of Section 97, I.P.C. This restraining of the appellants by the members of the complainant party to proceed in the aforesaid way was neither theft or robbery or mischief or criminal trepass. After all the aforesaid way between village Gaurisar and village Rampuriya was running through the field of the complainant party. There was, therefore, no question of any criminal trespass or mischief. We persistency asked Mr. Purohit to quote any authority which may support his version that an obstruction in the way-right gives a power to exercise the right of private defence in respect of property. But he could not.

15. Mr. Purohit also made a faint attempt that the members of the complainant party were the aggressors. The members of the complainant party had lathies with and the appellants apprehending danger to their person were forced to have a resort to use violence. The contention has no force. None of the appellants sustained any injury. The absence of injury on the accused person generally gives rise to a presumption that the victim party was unarmed and that the weapons were with the accused were the aggressors. After all these six or seven members of the complainant party and if they had weapons with them, as suggested by Mr. Purohit, they would have caused some injuries to appellants. But no injury was caused to the appellants and that is sufficient to hold that no right of private defence of person was available to the appellants. The contention of Mr. Purohit that that plea of right of private defence of person and property put forward by the accused was wrongly dismissed by the court below, has no substance and we feel no hesitation in rejecting it.

16. The next contention of Mr. Purohit is that no offence under Section 302, I.P.C. is made out. It was argued that Laxman Ram died due to head injury. Only one blow was struck on his head. The appellants were going in a camel cart through the way through which they had a right to go. They were obstructed by Laxman Ram from proceeding further. It was at that moment that accused Nanuram struck a blow on the head of Laxman Ram. There was no intention on the part of the appellants to cause the death of the deceased. As such the offence made out should be taken to be under Section 325 or utmost under Section 304 part II, I.P.C. It was also argued that the case is not covered by Clause 3rd of Section 300, I.P.C. because the intention to cause the particular injury which ultimately led to the death of Laxman Ram has been established by the prosecution Reliance in support of the contention was placed on Randhirsingh v. The State of Punjab : 1982CriLJ195 and Jawahar Lal and Ors. v. The State of Punjab AIR 1983 SC 248. In Randhirsingh's case, their lordships of the Supreme Court observed that in order to bring the case within Clause 3rdly of Section 300, I.P.C. it must be proved that there was an intention on the part of the accused to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause the death of the victim. In other words, the injury found to be present was the injury that was intended to be inflicted. Their lordships refused to apply Clause 3rd in that case as the circumstances did not permit it. There the weapon was not carried by the accused in advance. The death of the deceased-victim occurred nearly after six days of the incident. It was in view of these peculiar circumstance that Clause 3rd was not pressed into service. In the case of Jawahar Lal (supra), the incident took place in the background of trivial quarrel. There was no previous enmity between the deceased and the accused. The accused caused only one injury and did not attempt to inflict any more harm. It was in the midst of such circumstances that Clause 3rdly was not applied.

17. Here in the instant case, there is consistent evidence of the eye witnesses that accused Nanuram had a wire-wrapped lathi with him. He struck a blow with it on the head of deceased-victim Laxman Ram Laxman Ram fell down. Even thereafter accused Nanuram did not relent and struck a few more blows though they were not on the vital limbs of the deceased-victim. There was previous enmity between the appellants and deceased Laxman Ram due to the dispute over the way-rights. According to Dr. P.P. Gupta (PW 8), the cause of death was fracture of right frontal and parietal bones with sub-dural haemorrhage, shock and death. In his cross-examination, Dr. Gupta admitted that the victim could have survived if no blow was inflicted on his head. This means the head injury of the victim was sufficient in the ordinary course of nature of cause his death. There is noting in evidence to suggest that accused Nanuram did not intend to cause this particular injury to the deceased-victim. Once the existence of the injury is actually proved and its author is known, the intention to cause that injury should be presumed unless the circumstances warrant an opposite conclusion. In the instant case the injury is on the vital part namely head and was caused with such an amount of force that the frontal and parietal bones were fractured. The lathi used inflicting that injury was not an ordinary lathi but was wire-wrapped lathi. It would, therefore, be legitimate to infer that the assailant Nanuram intended to cause that injury which was actually inflicted by him. The case of Nanuram is, therefore, squarely covered by Clause 3rd of Section 300, and the offence made out against him is one punishable under Section 302, I.P.C. He has no escape from the applicability of Clause 3rdly of Section 300, I.P.C. He has been convicted under Section 304/34, I.P.C. by the Court below. His conviction and sentence should have been under Section 302, I.P.C. because he is the author of the fatal injury which caused the death of the deceased-victim Laxman Ram. His conviction is, therefore, converted from 304/34 to 302; I.P.C.

18. The last contention raised by Mr. Purohit is that Section 34 was wrongly pressed into service as against accused Kanaram and his conviction under Section 302/34, I.P.C. is unsustainable. It was argued that accused Kanaram did not inflict any injury on the vital part of the deceased-victim. The medical evidence does not suggest that the injuries caused by him to the deceased-victim contributed to his death. It was argued that according to Dr. Gupta (PW 8) if the head injury of the deceased was not there, he could have survived. It was further argued that according to prosecution witnesses, accused Nanu Ram struck the blow on the head of the deceased victim and it was only thereafter that accused Kanaram struck blows on his (deceased) non-vital limbs. In these circumstances the infliction of head injury by accused Nanuram should betaken to be his individual act. It was also argued that accused Kanaram had an ordinary Chosangi with him. These circumstances do not permit to hold that accused Kanaram had shared a common intention with accused Nanuram when the latter inflicted a blow of his lathi on the head of the deceased and thereby caused his death. Reliance in support of the contention was placed on Neenaji and Ors. v. State of Maharasktra AIR 1976 SC 1537. It was, on the other hand, contended by the learned Public Prosecutor that the appellants are real brothers. They came together in a camel cart. They not only landed blows to the deceased victim but also to the other members of the complainant party. They came together and went away together. In these circumstances it can be safely held that they had a common intention to cause the death of deceased Laxman Ram. We have given out thoughtful consideration to the rival submissions and are of the opinion that the submission made by Mr. Purohit is not without force. It is true that the appellants are real brothers inter se. It is also true that they came together in a camel cart and went away together in that cart after the incident. It is also true that they landed blows to the deceased victim and to the other members of the complainant party. But these facts alone are not sufficient to press Section 34 I.P.C. into service for varied persons.

19. Accused Kanaram had an ordinary Chosangi with him. He did not inflict any blow on the vital limb of the deceased-victim Laxman Ram. The prosecution witnesses have, no doubt, stated that the accused Nanuram gave a call to teach lesson for blocking the way. But this story of giving a Lalkara or call does not stand to reason. The incident took place only when the appellants diverted their camel cart in the field running between village Gaurisar and village Rampuriya. It was Nanu Ram who struck the fatal blow on the head of the deceased-victim. Accused Kanaram did not strike any blow on any vital limb of the deceased-victim. The circumstances do not permit us to hold that there was any premeditation between the appellants to commit the offence of murder. Had Laxman Ram not blocked the way, probably the incident would not have taken place at all. In view of these facts and circumstances we are unable to accept the contention of the learned Public Prosecutor that accused Kanaram shared a common intention with accused Nanuram in causing the death of the deceased-victim Laxman Ram. The facts and circumstances impel us to conclude that the infliction of head injury on the victim by accused Nanuram was his individual act and was not committed in furtherance of any common intention. We are, therefore, unable to invoke Section 34 in order to convict accused Kanaram under Section 302, I.P.C. His conviction under Section 302/34, I.P.C. cannot be maintained. He, of course, struck blows to Laxman Ram which resulted in grievous hurt. He is, therefore, guilty under Section 325, I.P.C.

20. Mr. Purohit, did not challenge the convictions and sentences of the appellants for the other offences. We, therefore, need not address ourselves in respect of other offences for which the appellants were convicted.

In the result:

(1) the appeal of accused Nanuram is dismissed. His conviction and sentence are maintained subject to the observations made above that his conviction shall be taken to be that under Section 302 instead of Section 302/34, I.P.C. and

(2) the appeal of accused Kanaram is partly allowed. His conviction and sentence under Section 302/34, I.P.C. are set-aside and instead he is convicted under Section 325, I.P.C. and is sentenced to four year's rigorous imprisonment with a fine of Rs. 200/-, in default of the payment of fine to further undergo two month's rigorous imprisonment. His conviction and sentence for the other offences are maintained. His substantive sentences shall run concurrently. The period of detention, if any, undergone by him during investigation, enquiry or trial of the case shall be set-off against the terms of imprisonment imposed on him.

(3) the appeal shall accordingly stand disposed of.


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