S.S. Byas, J.
1. Since these two appeals, one by accused Dali Chand and the other by the State, arise out of one and the same judgment of the learned Sessions Judge, Pratapgarh, they were heard together and are disposed of by a common judgment.
2. The Police, Nimbhera submitted a challan against as many as 41 persons in the court of Munsif and Judicial Magistrate for offence punishable under various Sections of the Penal Code. The case was committed for trial to the Court of Sessions. The learned Sessions Judge framed charges Under Section 148, 366, 460, 323, 325, 326, 307 and 302 IPC and also in alternative read with section 149 against all of. them, to which they pleaded not guilty and faced the trial.
3. In the nut-shell, the case set up by the prosecution in the course of trial was that PW 16 Smt Mangi was married to accused Dalichand. The relations between them were not happy. He deserted her and brought another wife. Smt. Mangi started living with her parents in village Griyawas. A few days before the occurrence, Smt. Mangi was given in Natra-marriage of PW 6 Chandmal and consequently she came to live with him in his house at Nimbhera. This was, reseated to by accused Dalichand and his parents. They threatend Chandmal and the members of his family with dire consequences. In the night intervening between 18th and 19 September, 1977, accused Dalichand went with his companions including his father Mana, other relatives and friends nearly 40 to 50 in number to the house of Chandmal and Lald a siege around it. The miscreants had come to forcibly take away Smt. Mangi. Chandmal and the members of his family woke-up and put resistence by raising cries. It led to the use of violence by the accused party. Chand Mal, has father Phoolchand (PW 1) and Smt. Mangi, (PW 16) were landed blows. Chandmal's mother Smt. Motiya came to intervene but she too was not spared. Accused Dalichand thrust the Gupti in her back. She succumbed to the injury instantcously on the spot. The accused party then dragged Smt. Mangi, lodged her in a truck they had brought and made good their escape. A report of the occurreuce was lodged varbally at about 2.30 A.M. in the same night at police station, Nimbhera by Chandmal. The police blistered a case and investigation ensued. The autopsy of the victim's dead body was performed by Dr. Ravi Bhargava (PW 3) the Medical Jusrist. He found the following injuties:
(1) Incised wound 3 c.m. x 1 cot. x scalp above right eye brow depth
(2) Lacerated wound 1 x 1/2 cm. x submental region
(3) Stab wound horizontal 2 cm. x 1 cm. x 5 cm. deep with well defused edges, blood and air bubble coming out.
(1) The third and 4th ribs fractured.
(2) Left lung-punctured posteriority and blood oozing out whole torasic cavity-full of blood on left side.
According to the doctor, the cause of death of Smt. Motiya was puncture of lung from stab wound causing intense heamorrhage and leading to shock. The post-mortem examination report issued by him is Ex P. 1. The injuries of PW 1 Phoolchand, P-W 6 Chandmal, PW 8 Badrilal and PW 17 Narain were also examined. Five injuries including one fracture of skull bone were found on the person of Phoolchand. Three simpls injuries on the person of Badrilal, six simole injuries on the person of Chandmal and one simple injury on the person of Narain were found. The accused persons ware rounded up. Lathies and Gupties were recovered in consequence of the information furnished by them whilst under police custody. During trial, the prosecution examined 18 witnesses and filed some documents. In defence, one witness was examined. On the conclusion of trial, the lear ed Sessions Judge recorded his findings as under:
(1) Accused Dalichand accompanied with many others, went to the house of Chandmal to bring back his wife Smt. Mangi which was not an unlawful object. As such no unlawful assembly could be said to have been formed by the miscreants. None of the objects mentioned in Section 141, IPC to make an assembly as unlawful could be established by the prosecution;
(2) The identity of the miscreants other, than of the three viz, Dalichand, Mana and Hukmichand was not satisfactorily established by the prosecution
(3) It was accused Dalichand who caused the death of Smt. Motiya by thrusting Gupti in her back. It was his individual act and none else could be saddled with constructive or vicarious liability as the act was not done in pursuance to any intention or common object. The offence made out agaist accused Dalichand was that of murder punishabls under Section 302 IPC
(4) Accused Manaram had earned grievous hurt to PW I Phool Chand and simple injuries to others. He was, therefore, liable under Section 325 IPC
(5) Accused Hukmichand caused simple injuries to the victims. He was, therefore, liable under Section 323 IPC, and
(6) The marriage between accused Dalichand and Smt. Mangi (PW 16) did not dissolve and subsisted on the day of the occurrence.
4. As a result, accused Dalichand was convicted under Section 302 IPC and was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine of further undergo three months' rigorous imprisonment. Accused Mana was convicted under Section 325, IPC and was sentenced to one year's rigorous imprisonment with a fine to further undergo of Rs. 500/-, in default of the payment of fine three months' like imprisonment. Accused Hukmichand was convicted under Section 323, IPC and was sentenced to two months' imprisonment with a fine of Rs. 500/% in default of the payment of fine to further undergo three months' like imprisonments. The remaining 38 accused persons were acquitted of all the offences they were charged with. Accused Mana and Hukmi Chand were also acquitted of the remaining offences. So also, accused Dali Chand was acquitted of the rest of the offences. Aggrieved against his conviction and sentence, accused Dalichand has filed the appeal. The State applied for leave to appeal against the acquitted persons. Leave to appeal was granted by this Court on 6-11-79 against the acquittal of Mana, Nanu, Heeralal, Hukmichand, Mangi Lal, Dhanna, Badrilal, Raghunath, Deokaran and Kacher.
5. We have heard Shri Doongersingh, learned Counsel appearing for the accused and Shri M.C. Bhati, the learned Public Prosecutor for the State. We have also gone through the case file carefully.
6. We well first take the appeal of the State. Shri Bhati, the learned Public Prosecoutor submitted that the acquittal of the ten accused persons named above was Wholly wrong and bad in law. It was argued that the evidence of the eye witnesses was discarded on insufficient ground by the court below. Since all the miscreants had come together the ten acquitted accused were equally liable for the murder of Smt. Motiya. The identity of the accused-persons was established beyond any manner of doubt by the injured witnesses of the prosecution. In reply, it was submitted by Shri Doongarsingh hat most of the eye witnesses did not know the acquitted accused before the occurrence.lt was a dark night and there was no sufficient light for the injured witnesses to correctly identify the miscreants. No test identification was conducted during investigation and no reasons were forthcoming for not getting the identification test conducted. The learned Sessions Judge had carefully scrutnized the prosecution evidence led to establish the identity of the culprits, The prosecution evidence relating to the identity of the culprits was discrepant and worthy of no credence. We have taken the respective contentions into consideration. PW 1 Phoolchand is the father of Chandnmal and an injured victim. In his examination-in-chief, he stated that he could identify only Dulichand, Mana and Mangilal and none else. As such the testimony of this witness is of no material help to the prosecution as regards the identity of the acquitted accused persons. Dalichand and Mana have been convicted, but the identity of Mangilal could not be satisfactorily established by the other injured witnesses PW 6 Chandmal correctly identified accused Dulichand and Mara. But his testimony relating to the identifiaction of other culprits is not above the board and free from suspicion. In his examination-in-chief, he wrongly identified a number of persons. He, of course, correctly identified accusecd. Hukmichand, He did not mention the names of these culprits, for example Mangilal, Chunnialal, Kesuram, Shankerlal and others in the First Information Report lodged by him though he tried to establish their identity during trial. The learned Sessions Judge rightly held that the evidence of this witness established the identity of only three culprits viz. Dalichand Mana and Hukmichand. PW 7 Smt. Kamla is the wife of Badrilal (PW 8), who is the real son of Phoolchand (PW 1). She identified only accused Dalichand and none else. PW 8 Badrilal, who, as stated above, is the real son of Phoolchand, turned hostile and identified none. PW 17 Narainalal is also the real son of PW 1 Phoolchand. He correctly identified Dalichand, Mana, Mangilal and Badrilal. But in his police statement be admitted that he could identify only accused Dalichand and Mana and was unable to identify any other culprit. As such the testimony of this witness renders no help to the prosecution against the acquitted accused-persons. PW 16 Smt. Mangi deposed that 40-42 persons came in that night to forcibly take her away. Her testimony relating to the identity of accused Dalichand, his father Mana and Hukmichand has been accepted by the trial judge, but not in respect of the acquitted accused. After going through her testimony, we also arrive at the same conclusion. Her testimony in respect of the acquitted accused persons is not dependable specially in this circumstance that rone of the other eye witnesses lent support to her. PW 2 Shantilal and PW 3 Himmatsingh simply stated that a huge crowd collected at the house of PW 1 Phoolchand. A truck was standing there. The did not identify any of the miscreants. PW 2 Shantilal admitted that it was a dark right and the electricity was not Working.
7. The way in which the investigation was carried-out cannot be appreciated and approved. The police submitted a challan against as many as 41 accused persons. Except accused Dalichand and his father Mana, the others were not known to the eye witnesses and yet no test identification was got conducted by the investigating agency for the reasons best known to them, but permitting us to say that what should have been done was not done to establish the identity of the culprits. The investigation was carried out in a perfunctory manner with no Attempt to establish the identity of the real culprits. We are, therefore, unable to accept the contention of the learned Public Prosecutor that the identity of the acquitted accused persons stands satisfactorily established by the evidence of the injured witness. Since the identity of the acquitted accused persons does not stand satisfactorily established, the appeal of the State must fail.
8. It was text argued by the learned Public Prosecutor that accused Mana and Hukmichand were admittedly with accused Dalichand according to the finding of the learned Sessions Judge. Smt. Motiya was done to death by accused Dalichand. As such Section 34, should have been invoked by the trial court to convict accused Maria and Hukmichand under Section 302, IPC. We are again unable to accept the contention. The miscreants had come to forcibly take away Smt. Mangi (PW 16). She was the wedded wife of accused Dalichand. The marriage between the two, did not stand dissolve and subsisted till the day of the occurrence and probably even thereafter. Accused Dalichand and his father Mana had, therefore, a right to make attempt to take Smt. Mangi back to their house. They had come for this purpose and for no other object. In the given circumstances of the case, there is no room for contention that they had come to commit the murder of some body. If accused Dalichand thrust the Gupti in the back of Smt. Motiya, it was his individual act. It cannot be said that accused Mana and Hukmichand shared the common intention with him in causing the murder of Smt. Motiya. In order to bring Section 34, IPC into play, the prosecution should show that each of the co accused shared the common intention of the other. Intention of one must be known to the other. As discussed above, the circumstances do not permit us to reverse the finding of the trial court and substitute it by a finding that accused Mana and Hukmichand shared a common intention with accused Dalichand, when the latter thrust a Gupti in the back of Smt. Motiya We are, therefore, unable to accept the contention of the learned Public Prosecutor that accused Mana and Hukmichand should have been convicted under Section 302 by applying the provisions of Section 34, IPC.'
9. For the reasons stated above, the appeal of the State against the acquitted accused Mana and Hukmichand must also fail. We are unable to convict these two under Section 302 read with Section 34, IPC.
10. We shall, now, address ourselves to the appeal of accused Dalichand. Keeping in view the overwhelming and consistent evidence of PW I Phoolchand, PW 6 Chandmal, PW 7 Smt. Kamla, PW 16 Smt. Mangi and PW 17 Narainlal, learned Counsel appearing for him did not challenge the finding of the court below that it was accused Dalichand who had caused the death of Smt. Motiya be thrusting a Gupti in her back. What has been contended before us is that the offence made out is not covered by Section 302 but falls under Section 304 Part II, IPC. It was argued that accused Dalichand had gone to bring his wife back to his house and he had a right to do so. The complainant party was illegally keeping his wife with them. He had no intention to kill any body of the complainant party and much less Smt. Motiya. It was the sudden act without any impulse of accused DaliChand that only one injury was caused by him td tee deceased-victim. In these circumstances, 'intention', which is the core of first two Clauses of section 299, IPC cannot be pressed into service Only 'Knowledge' that his act was likely to cause the death, could be attributed to accused Dalichand. The contention does not appear to be without force. It can be safely said that accused Dalichand went to bring his wife back to his roof. He had no intention to cause the murder of any body of the complainant, party. If he had any grudge against any of the members of the complainant party, it was PW 6 Chandmal who was keeping Smt. Mangi. If accused Dulichand had caused the murder of Chandmal, we would have gathered an intention on his part. The prosecution evidence shows that when there was a confusion Smt. Motiya happened to come and she was given a blow in the back with Gupti by accused Dalichand. He had no intention to commit her murder. The 'intention' to commit murder is completely lacking. A similar situation arose in Shanker v. The State of Madhya Pradesh (l979 SCC(C-i)632)There the accused caused injury with a dagger on the neck of victim. It was held that the offence made out is not covered by Section 304 but Section 302, fart II, IPC In Hariram v. The State of Hariyana (1993 Cr. LR (SC) 122). Jeelly was thrust in the chest of the victim. There was no evidence regarding intention to kiil. It was held that the offence made out is under Section 304, Part II and not under Section 302, IPC. Again, in Jawahar Lal and Ors. v. The State of Punjab 1983 Cr. LR (SC 168) the accused landed a blow on the chest of the victim with a knife. The accused did not intend to inflict the particular injury. Clause III rdly of Section 300 was held not applicable so as to bring the case under Section 302, IPC. The offence made out was held as covered by Section 304 Part II, IPC.
11. In the instant case also, as discussed above, the injury to the deceased-victim was caused in her back. If the accused intended to cause her murder, he would have thrust the Gupti in her chest or any other vital organ. It is not there in evidence that accused Dalichand intended to inflict the particular injury to the victim. In these circumstances, the case is not covered by the first two Clauses of Section 299, IPC. It was observed by their Lordships of the Supreme Court in Jawahar Lal'case (supra) that:
In our opinion, in these circumstances it would be difficult to say that the appellant intended to cause that particular injury. Even if the injury inflicted proved to be fatal, the case would not be covered by Part III of Section 300, IPC.
12. We are, therefore unable to maintain the conviction of accused Dalichand under Section 302, IPC. The offence made out against him is covered by Section 304 Part II, IPC.
13. In the result:
(1) The appeal of the State is dismissed;
(2) The appeal or accused Dalichand is partly allowed. We alter his conviction from one under Section 302 to that of under Section 304 Part II, IPC and reduce the sentence from life imprisonment to Seven Years' rigorous imprisonment. The fine is maintained, and
(3) the appeals are disposed of accordingly in the manner indicated above