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Lal Chand Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 348/78
Reported in1984WLN99
AppellantLal Chand
RespondentThe State of Rajasthan
Cases ReferredVirsasingh v. The State of Punjab
criminal procedure code - section 156(2)--investigation--validity of--u posted as s.i. in reserved police lines investigated matter at nohar under orders of circle inspector, nohar--held, investigation is not illegal.;pw 7 umedsingh was not the station house officer of police station, nohar on 22-4-77. he was then posted as sub-inspector in reserve police lines at district headquarters, ganganagar.;pw 7 umedsingh was posted in ganganagar district and nohar is a part of it. as such umedsingh being posted in district ganganagar was competent to make investigation at any place within the district. he carried out the investigation under the orders of the circle officer of police, nohar. as such the investigation does not become bad in law. the investigation is not illegal and does not stand.....s.s. byas, j.1. accused lal chand, manphool, net ram and bhadar were convicted under sections 302 and 342, ipc and each was sentenced to imprisonment for life on the first and three months' rigorous imprisonment on the second count by the learned additional sessions judge (1), haunmangarh vide his judgment dated 20-9-78. both the sentences were directed to run concurrently. they have come-up appeal to challenge their conviction and sentence.2. succinctly stated, the prosecution case is that deceased-victim birbal jat was the real nephew (brother's son) of accused lal chand. accused manphool and netram are sons of accused lal chand. accused bhadar is also their near relative. they all are residents of village dhilkijathan p.s. nohar district ganganagar. birbal had two daughters kamla and.....

S.S. Byas, J.

1. Accused Lal Chand, Manphool, Net Ram and Bhadar were convicted under Sections 302 and 342, IPC and each was sentenced to imprisonment for life on the first and three months' rigorous imprisonment on the second count by the learned Additional Sessions Judge (1), Haunmangarh vide his judgment dated 20-9-78. Both the sentences were directed to run concurrently. They have come-up appeal to challenge their conviction and sentence.

2. Succinctly stated, the prosecution case is that deceased-victim Birbal Jat was the real nephew (brother's son) of accused Lal Chand. Accused Manphool and Netram are sons of accused Lal Chand. Accused Bhadar is also their near relative. They all are residents of village Dhilkijathan P.S. Nohar district Ganganagar. Birbal had two daughters Kamla and PW 2 Krishna. Accused Lal Chand wanted that they should be married to the brother-in-law of his another son Nathu. Birbal did not carry out his wishes and got his daughters married to some other persons in village Rampuriya. This sowed the seeds of discordance between Birbal and the accused persons. The accused started harboring the ill-will against Birbal. At about 8.00 or 9.00 A.M on 22-4-77, Birbal was going to his field. When he reached near the Nohara of Manphool, accused Netram and Bhadar came from the opposite direction with Lathies in their bands. They challenged Birbal and cried aloud that would finish him. Birbal, apprehending danger, ran towards South in a street. Accused Manbhool and Lal Chand came out from their house with Lathies in their hands. They encircled Birbal. Meanwhile accused Net Ram and Bhadar also reached there. All the four accused opened an on-slaught on Birbal and struck blow; to him with their Lathies. Birbal fell down out-side the house of Ramswaroop, as shown in site plan Ex.P13. Accused continued to strike blows to him Smt. Krishna(PW2) who was going to throw rubbish, raised cries. PW 3 Surjaram, PW 4 Inder Raj, PW6 Chhalu Ram, Hansraj, and Ram Swaroop came there. They tried to intervene. PW 4 Inder Raj, in his efforts to protect the victim, received an injury on his person. The accused dragged Birbal and took him to their house. There they dropped him in a roofless Chhapper, shown by mark `B' in site plan Ex. P13. Birbal's mother Smt. Mathuri (PW 6) and his wife Smt. Bhuri, on bearing the noise, reached there. Mst. Mathuri tried to protect her son but she too was not spared. She also sustained some injuries. The accused continued to strike blows to Birbal there also in the roofless Chhapper. Thereafter they dispersed away taking their Lathies with them. (PW 3) Surjaram left for the Police Station Nohar at about 11.15 AM. and verbally lodged report Ex. P 8 of the occurrence. The police registered a case under Sections 307 and 342, IPC and proceeded with investigation. Birbal became unconscious on the spot and there was profuse bleeding from his wounds. He was taken to his house by Inderraj, Chhaluram and Ors. The Investigating Officer Umed Singh (PW 7) arrived on the spot on the sans day and sent Birbal to Nohar Hospital, where his injuries were examined. The Investigating Officer inspected the site and seized the blood-stained soil. The injuries of Birbal were examined at Nohar Hospital and from there he was taken to Bhadra where he was admitted for treatment in the Government Hospital. His injuries were again examined at about 8. 10 P.M. by PW 1 Dr. J.P. Swami, the then Medical Officer Incharge, Government Hospital Bhadra. He found the following injuries on the person of Birbal:

(1) One lacerated wound 3-1/2' x 1/4' skin and muscle deep. Bone is exposed on the scalp on right fronto parietal bone obliquely

(2) One lacerated wound 3-1/2' x 1/4' skin and muscle deep, bone is exposed on the scalp, on left fronto parietal region horizontal

(3) One lacerated wound 2' x 1/2' cartilage exposed left pinna from near the helix upto the lobule

(4) One big bruise with swelling 4' x 2' superficial with swelling on the dorsum of left wrist with deformity

(5) One superficial abrasion 1/4' x 1/4' on the left malareminance

(6) One bruise with abrasion superficial margins not well defined on the left chin on the eentre

(7) Four bruises each 6' to 8' x 1/2' superficial crossing each other on the back across the vertabra at the level of the 1/12 to 1/1

(8) One bruise superficial margins not well defined on the dorsum of right wrist

(9) One bruise with abrasion 4' x 1/2' superficial on left gluteal region posterior aspect 4' below posterior iliac supine

(10) One bruise with abrasion 2' x 1/2' superficial left gluteal region oblique

(11) One bruise with abrasion 2' x 3/4' superficial on right thigh posterial lateral on the uper 1/3rd.

Injuries No. 1,2,3, and 4 were classified as grievous and the remaining as simple. The injuries were stated to have been caused by some blunt object like Lathi. The duration of the injuries was held to be within 12 hours. The injury report prepared by Dr. Swami is Ex.P 1. He also took the skiagram of parietal region of the victim's body and found both parietal bones, temporal and occipital bones fractured. The X-ray plates are Ex.P 2 and Ex.P 3. Despite medical help, Birbal did not survive and succumbed to the injuries at about 2.10 P.M. on 23-4-77 in the hospital. The police added section 302, IPC during investigation. The post-mortem examination of the victim's dead body was conducted at about 5.30 p.m. on the same day by the same doctor Swami (PW 1). He noticed the following injuries on the victim's dead body:

External--As stated in injury report Ex.P 1.


Cranium and spinal cord--there was big haemotoma below the front-occipital muscle and below the skin of the scalp. The scalp bone is fractured starting from left temporal going across the interparietal junction and then to right temporal and then to the left occipital bone with depression. The skull is fractured on the top not the base. Membranes were congested and having areas of big hemorrhages. Brain lacerated at both the parietal lobes near the great central longitudal sinus the left and right occipital lobes were also lacerated with the base with big hemorrhagic areas and fluid blood.

Thorax--Both the lungs were pale and on cutting air comes out. Heart-right side full of fluid blood, left side empty.

Large vessels--Full of fluid blood.

Muscles--bones and joints-the pericardium and fronto occipitalis muscle were torn badly along with the muscles of the dorsum of left wrist and band with great haemotomas. The scalp bones were fractured at the top with depressions. The metacarpal of 1st and 2nd fingers with fractured of the shaft in the centre with dislocation of metacarporal phalangeal joint of the same fingers on left side.

3. Dr. Swami was of the opinion that the cause of death was brain Jaceration, hemorrhage, brain compression, consequent shock, respiratory and circulatory failure due to neuronal injury. The post mortem examination report prepared by him is E^. P 4. The accused persons were arrested and in consequence of the information furnished by some Lathies were recovered, some of which on chemical examination were found stained with human blood. The blood-stained clothes of the deceased-victim were seized and sealed. Human bolod was detected on them on Chemical examination. It may be mentioned that accused Lal Chand was arrested on 25-7-77. At the time of his arrest, a scratch was found on his left ankle below the knee. After when the investigation was over, the police presented a challan against the accused persons in the Court of Munsif and Judicial Magistrate, Nohir, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302/34 and 342, IPC against all the four accused persons, to which they pleaded not guilty and faced the trial. Accused Lalchand, in his statement under Section 313, Cr. PC, stated that he was sitting at his house and the deceased-victim Birbal came there with a Lathi in his band. Birbal struck him five or seven blows with his Lathi. Seeing this, his son Nathu (not an accused) came with a Lathi and struck blows with it to Birbal in order to ward-off further hearing. The remaining three accused denied their presence on the spot. They stated that they have been falsely roped in. During trial, the prosecution examined eight witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found no merit in the defence put forward by the accused-appellants. The charges against them were held duly proved. They were consequently convicted and sentenced as mentioned as the very out-set. Hence this appeal.

4. We have heard Shri B.R. Purohit, learned Counsel for the accused-appellants and the learned Public Prosecutor Shri R.P. Dave assisted by Shri M.L. Garg, counsel for the complainant. We have also gone through the case file carefully.

5. In assailing the conviction of the appellants, the learned Counsel for the appellant raised various grounds, which for the sake of convenience may be classified as under:

(1) The investigation was unauthorized;

(2) the testimony of PW2 Krishna, PW 3 Surjan Ram and PW 6 Smt. Mathuri has been wrongly relied upon to convict the accused persons. Their evidence is discrepant, self contradictory and inconsistent. They should not be taken to be the witnesses of truth in view of the fact that PW 4 Inder Raj and PW 5 Chhalu Ram have lent no support to the prosecution and turned hostile. The prosecution has also with held independent eye witnesses;

(3) the right of private defence put forward by accused Lalchand has been wrongly rejected, and

(4) even if the prosecution case is taken as true, the offence made out would not be covered by section 302, IPC. The offence made out is that under Section 325, or utmost under Section 304, Part II, IPC.

6. It would be proper to take up these contentions at seriatim.

7. It was argued by Mr. Purohit that the investigation was made by PW 7 Umedsingh who was not posted at Police Station, Nohar. The case was registered at Police Station, Nohar. Shri Umedsingh was working as Sub-Inspector in Reserve Police Lines, Ganganagar. He had, therefore, no jurisdiction to carry out the investigation in the instant case. Since the investigation was carried out by an unauthorized person, the whole trial stands vitiated. We find no force in the contention. It is true that PW 7 Umedsingh was not the Station House Officer of Police Station, Nohar on 22-4-77. He was then posted as Sub-Inspector in Reserve Police Lines at district Headquarters, Ganganagar. He stated that be came from Ganganagar on 22-4-77 in connection with the investigation of a criminal case No. 15/77 under the direction of the Distsict Superintendent of Police. At Nohar, he was directed by Circle Officer of Police to make investigation in the instant case also. He, therefore took up the investigation in his hand.

8. Under Section 156(2), Cr. PC occurring in Chapter XII relating to the powers of the Police Officer for investigation, no proceeding of a Police Officer can be called in question at any stage on the ground that the case was one which such officer was not empowered under this section to investigate. We may point out that PW 7 Umedsingh was posted in Ganganagar District and Nohar is a part of it. As such Umedsingh being posted in District Ganganagar was competent to make investigation at any place within the district. He carried out the investigation under the orders of the Circle Officer of Police, Nohar. As such the investigation does not become bad in law. The investigation is not illegal and does not stand vitiated. No authority was brought to our knowledge by the learned Counsel that the investigation of the nature in the instant case vitiates the trial and the accused should be acquitted on that coun: alone. The first contention, thus, has no substance.

9. It was next argued that evidence of PW 2 Mst. Krishna, PW 3 Surjaram, PW 4 Inder Raj, PW 5 Chhaluram and PW 6 Smt, Mathuri was wrongly replied upon by the Court below in convicting the appellants. It was argued that none of them is a witness of truth and their testimony is f wholly insufficient to warrant the conviction of the appellants. Now, each of these witnesses has claimed to have seen the occurrence.

10. PW 2 Smt Krishna is the daughter of the deceased-victim. She stated that at the breakfast time on the day of occurrence, she was going to throw the rubbish at a place situate in the west of her house. Her father was going a few steps a head of her to go to the field. When her father reached near the rubbish-stacks, accused Netram and Bhadar came out from a fens with Lathis in their hands. They cried aloud to finish her father. Apprehending danger, her father Birbal ran in the South side. Accused Manphool & Lalchand came out from their houses with Lathies in their hands. Accused Netram and Bhadar were after her father. All these four accused persons surrounded her father. Accused Netram struck a blow of his Lathi on the head of her father. Her father fell down in the street out side the house of Ramswaroop. There after all the four accused started striking blows to him. She raised cries and met Surjram (PW 3) out side the house of Manphool. She told him that her father was being assaulted and belaboured by the appellants and requested him to intervene. In the meantime PW 4 Inderraj, PW 5 Chhaluram and Ramswaroop also arrived there. They tried to intervene to save her father but the accused did not relent. PW 4 Inderraj sustained injury in a bid to protect her father. The accused there after dragged her father and took him in their roofless Chhapper situate in their court-yard. There they also, continued to strike Wows to her father. Her mother Smt. Bhoori and grandmother PW 9 Smt. Mathuri came there. Smt. Mathuri tried to save her father and she also received some injuries at the hands of the accused persons The accused persons after beating her father, ran away taking their Lathies with turn Her father became unconscious. PW3 Surjaram immediately left to lodge the report at the Police Station. She was cross examined at length but nothing could be extracted from her which may be helpful to the accused. PW 3 Surjaram is the person who lodged the report at the Police Station. He deposed that at about 8.00 or 8.15 A.M. on the day of occurrence he was returning from his field. Smt. Krishna (PW 2) came crying to him and told him that the appellants were beating her father Birbal. He saw that the accused had encircled Birbal outside the house of Ramswaroop. He went ruining there and saw that the accused were beating Birbal with Lathies. Birbal was lying on the ground and had become unconscious. Meanwhile Inderraj (PW 4), Chhaluram (PW 5), Ramswaroop and one more person came there. They all asked the accused not to beat Birbal but they did not relent. The appellants dragged Birbal and took him to their Chhalu(sic)ram, where also they struck blow to him. PW 6 Smt. Mathuri and the victim's wife Smt. Bhoori came there. Smt. Mathuri received a blow of Lathi on her hand. The accused thereafter disappeared. He and other persons who had assembled there, took Birbal to his house. Thereafter he want to the Police Station Nohar and lodged report Ex. P 3 of the occurrence. He was cross-examined but again nothing could be elicited from him which may be helpful to the appellants, the only thing which could be elicited from him was that the accused persons had a right of way in his field and he does not allow them to use that way. But he denied the suggestion that due to this reason he was falsely deposing against the appellants.

11. PW 4 Inder Raj, though turned hostile to the prosecution and refused to support the theory that the appellants had dragged and taken Birbal to their Chhapper, stated that at the time of occurrence he was going to the house of one Hemraj. In the way he saw all the four appellants striking blows to Birbal, outside the house of Ramswaroop Birbal was lying on the ground at that time. Smt. Krishna was standing there. Many persons collected at the spot but he could not recollect their names. The witness further stated that he also tried to intervene and in that attempt he received a Lathi blow of accused Lalchand on his hand. He then went away to his house. He was declared hostile because he did not support the prosecution that the accused had dragged and taken Birbal to their Chhapper. In cross examination, nothing could be elicited from him which may cast any suspicion on his sworn testimony. PW 5 Chhalu ram is a total hostile witness. He deposed that he saw the deceased-victim and accused Lalchand fighting which each other in the house of the appellants. Birbal struck some blows with his Lathi to accused Lalchand. There after Lalchand's son Nathu (not an accused) struck two blows of his Lathi on the head of Birbal. Birbal thereupon ran away to his house The witness was cross-examined by the prosecution and he was confronted with his police statement Ex. P 11 and statement Ex P 12 recorded under Section 164, Cr.PC He d(sic)nied to have given the statement Ex.P11 before Police during investigation. He admitted to have given statement Ex. P 12 before the Judicial Magistrate but alleged that he gave it at the instance of Police who threatened him with dire consequences in case he did not gave the statement as they wanted from him In our opinion, PW 5 Chhaluram has been won over by the accused and for that reason he has suppressed the real truth. Looking to the injuries of Birbal and the fact that he became unconscious he could not run away to his house after he was belabored. As will be discussed later on at the appropriate stage, no injuries were found on the person of Lalchand. As such PW 5 Chhalu Ram appears to be a total liar who has scanty regard for truth. Any way his hostile attitude does not diminish the direct testimony of the other eye witnesses.

12. PW 6 Smt. Mathuri is the mother of the deceased-victim. She deposed that Birbal left the house to go to his field. After some time she heard the cries of Smt. Krishna. She and Birbal's wife Smt. Bhoori went running to, the house of appllants and found Birbal lying in their Chhapper. The appellants were beating Birbal with Lathies. She requested them not to do so and thereupon accused Lalchand struck two blows of his Lathi on her left upper arm and elbow. PW 3 Surjaram, PW 2 Smt. Krishna, PW 4 Inderraj, PW 6 Chhaluram, Hansraj, and Ramswaroop were also there in the Chhapper. She was cross-examined but again nothing could be taken out from her which may cast doubt on the veracity of her testimony.

13. It is true that PW3 Krishna PW6 Smt Mathuri are the close relatives of the deceased-victim being his daughter & mother. But that hardly constitutes a good and valid reason to discard their direct testimony. The fact that in a muder case the witnesses are the close-relatives does not detract from the evidentiary value to be attached to their testimony. It is difficult to imagine that these two relative witnesses would leave the real assailants and substitute the innocent appellants in their place. So also, no reasons appear to discard the direct testimony of the ocular witnesses PW 3 Surja Ram and PW 4 Inderraj. The learned Sessions Judge accepted the evidence of PW 2 Smt. Krishna, PW 3 Surjaram, PW 4 Inderraj and PW 6 Smt. Mathuri as reliable and dependable. After a careful scrutiny of their testimony, we are unable to take a view different from that of the learned Sessions Judge.

14. It was argued that no marks of dragging were found from the place of occurrence which is alleged to have taken place outside the house of Ramswaroop to that of the house of the appellants. A perusal of site plan Ex. P 13 shows that the victim was first of all belaboured at place marked 'A' in it. From there he was taken to place 'B' No marks of dragging were found by the Investigating Officer in the way from place 'A' to 'B'. It appears that the marks were not found because it is a thorough fare and the marks stood wiped off. The fact that no marks of dragging could be found is not a factor to be taken into consideration to distrust the testimony of the ocular witnesses. Marks of dragging were found from place A to B which is in the Court-yard of the appellants because it is not a thorough-fare. The names of all these ocular witnesses have been mentioned in the First Information Report Ex. P 8 lodged within two or three hours of the incident. The names were disclosed at the earliest available opportunity.

15. We, therefore, find no force in the contention that the evidence of the aforesaid eye witnesses was wrongly relied upon or taken as true by the trial Court. The contention is barren of substance and must be rejected.

16. It was next argued by Mr. Purohit that the plea of private defence taken by the appellant was wrongly rejected. It was argued that when accused Lalchand was arrested on 25-4-77, one scratch was found on his ankle below the knee. This injury suggests that he Was belaboured by the deceased-victim. Since the prosecution witnesses have not explained this injury of accused Lalchand, it should be taken that they are not witnesses of absolute truth. It was argued that the failure of the prosecution to explain the injury on the person of accused is a circumstance which must be taken into serious consideration. It was urged that the accused is not required to prove his defence to the hilt. All that is requited from him is that there should be preponderance of probabilities in his favour. The presence of injury on the person of accused Lalchand suggests that he was belabored by the deceased-victim. In these circumstances the plea taken by accused Lalchand that Birbal came to his house and belabored his and him son Nathu, in order to protect him from being further beaten, struck blows to Birbal, should be accepted as genuine.

17. We have given our anxious consideration to the contention and find no force of whatsoever nature in it.

18. The right of private defence is a right to self-help and must be accepted when the circumstances show its existence. The Court should be not feel shy in accepting this right if it is there. Now, accused Lalchand was arrested on 25-4-77 i.e. after three days of the occurrence. Avery minor scratch on his left ankle was found when he was arrested, vide at rest memo Ex. P 23. This is a superficial injury which can be sustained by a villager in more than one way. If accused Lalchand was belabored by Birbal as pleaded by him, he could have got himself medically examined within reasonable time. He was free before his arrest made on 25-4-77 There was none to deter him from getting himself medically examined. He failed to do so. In these circumstances it cannot be accepted that he was belabored by the deceased victim as pleaded by him, There must be circumstances to make out a right of private defence. Mere conjectures and surmises are not sufficient to make out this d fence. Suffice it to say that we are unable to accept that a right of private defence was available to the accused simply because a minor seratch Was found on his left foot at the time of his arrest, the right of private defence cannot be extended to the accused as there is no no material to make it out. The right of private defence is not to be assumed. It has to be made out and established. The contention, therefore, holds no ground.

19. Lastly survives the question relating to the nature of offence. Mr. Purohit with his usual vehemence contended that in the facts and circumstances of the case the offence made out is not of murder under Section 302, IPC nor appellants can be convicted under it with the aid of Section 34, IPC Mr. Purohit contends that the offence made out is that of causing hurt under Section 323, IPC. The contention requires deliberations at some length.

20. Frequently the cases occur where several persons take part in assaulting a man who dies from the consultative effect of the assault. The question arises what offence ha? the accused committed. If there is evidence that the blow of any of the accused caused the death of the victim, he would be held guilty of homicide. But if it cannot be ascertained, then all would be held liable for hurt or homicide or even murder according to the nature and violence of the as(sic)ult and the intention and knowledge imputable to the accused.

21. In the instant case in hand, as admitted by Smt Mathuri (PW 6) (mother of the deceased-victim), accused Lal Chand is the real brother of her husband and accused Netram and Manphool are the sons of Lal Chand. There is thus close relationship between the deceased-victim and the appellants. The motive alleged is that accused Lalchand wanted the victim's daughters married to the brothers-in-law of his another son Nathu. The deceased-victim did not carry out his (accused Lalchand's) wishes and got his daughters (Kamla and Krishna) married with some other persons It is said that this annoyed accused Lalchand. In our opinion, the motive alleged is not sufficient to drive and push the appellants to commit the murder of the victim. Looking to the proximate relationship between the victim and the appellants and the motive advanced, we are unable to conceive that the appellants wanted to finish the victim for ever. As such, we find that accused had no common intention to cause the murder of victim Birbal.

22. The death of the victim took place due to head injuries No. 1, and 2, which according to Dr. Swami (PW 1) were sufficient in the ordinary course of nature to cause death. There is no evidence, who out of the appellants caused these fatal injuries No. 1 and 2. There is omnibus statements of the ocular witnesses that appellants struck blows to the victim, without specifying who hit him where. Of course, PW 2 Smt. Krishna deposed that first blow of the head was struck by accused Netram. How ever, in her cross-examination she admitted that accused Netram struck a blow from behind on the victim's head. But there is no injury on the back of the head of the victim. As such, we cannot say that accused Netram struck any blow on the head of the victim.

23. The position which stands is that the accused made an assault on the victim and struck blows to him with Lathies. It is common for the villagers to keep ordinary Lathies with them. There was no common intention on the part of the appellants to commit the murder of the victim. It is not proved as to who of the accused caused injuries No. 1 and 2 to the victim which resulted in his death. In these circumstances, we are of the opinion that the accused wanted to give a severe beating to the victim. The offence made out is therefore, not of murder but that of causing grievous injuries to the victim. We may notice the observations of their Lordships of the Supreme Court made in similar cases involving identical situations. In Shrikishan and Ors. v. The State of Uttar Pradesh : 1972CriLJ1313 , there was no previous enmity between the accused appellants on the one hand and the deceased-victim on the other. Injuries were caused by lathies only. There was no material on record to show as to who gave the fatal blows. Their lordships held that it was a case covered by Section 325 read with 34, IPC and not that under Section 302 read with Section 34, IPC. In Ramlal v. Delhi Administration : 1973CriLJ17 , the assault was made on the victim by more than one accused with Lathies. Blows were inflicted on the head. But there was no evidence which out of the two blows was given by the accused. The offence was taken to be under Section 325 read with Section 34, IPC. In Ninaji Rajiv v. The State of Maharashtra : 1976CriLJ1154 , the victim was assaulted by a number of persons, resulting in his death. No common intention to cause death was proved. Their Lordships held that no offence under Section 302/34, IPC was made out. It was held that the accused had the common intention only of causing grievous injuries with Lathies and Khunt.

24. The learned Public Prosecutor invited bur attention to the well-known case of Virsasingh v. The State of Punjab : 1958CriLJ818 and contended that the offence made out is that under Section 302, as the case is covered by clause III of Section 300, IPC. We are unable to agree with the learned Public Prosecutor. In the case of Virsasingh, there was only one accused who inflicted fatal blow to the victim, which were found sufficient in the ordinary course of nature to cause death. It was in those circumstances that the offence made out was taken to be of murder under Section 302, IPC. Here is not that situation.

25. Learned Counsel for the appellants also raised some insignificant contentions relating to the seizure of tea, Gur etc. and recovery of the utensil which Smt. Krishna was carrying to throw the rubbish etc. We may say that these insignificant contentions do not destroy the main fabric of the prosecution case viz. that accused appellants made an assault on the victim and inflicted blows to him.

26. In the resule, we partly allow the appeal of accused Lalchand, Manphool, Netram and Bhadar. Their conviction and sentence under Section 302/34, IPC, are set-aside and instead they are convicted under Section 325/34 IPC and each of them except accused Manphool is sentenced to four years' rigorous imprisonment. The conviction and sentence of accused Lalchand, Netram and Bhadar under Section 342, IPC are maintained. They were oh bail during the pendency of appeal and are not present today. They will surrender before the trial Court within 15 days, failing which the learned Additional Sessions Judge shall issue warrants of arrest against them and send them to jail to undergo the unexpired portion of their sentence.

27. Accused Maaphool was nearly 15 years of age at the time of his conviction. As such he cannot be sentenced to any punishment in view of the provisions of Sections 360 & 361, Cr. PC and the provisions of the Probation of Offenders Act. He has also been convicted under Section 842, IPC. Since no punishment can be imposed on him unless special reasons are there, the punishment awarded to him under Section 342, IPC is also set-aside. No previous conviction stands at his discredit. As such, instead of sentencing him to any punishment, we hereby direct that he be released on his entering into a bond for a some of Rs. 3000/- together with a surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Hanumangarh to appear and receive sentence when called upon during a period of next two years and in the meantime to keep the peace and be of good behaviour. He is allowed two weeks time to submit he aforesaid bonds. The appeal shall stand accordingly disposed of.

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