S.S. Byas, J.
1. The appeal is directed against the judgment of the learned Session Judge, Balotra dated February 28, 1981, by which the appellants Deraj and Kallaram have been convicted under Section 302/34, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 500/- in default of the payment of fine to further undergo three months' rigorous imprisonment.
2. The case set-up by the prosecution is short and simple and briefly stated it is as follows: The deceased Bhinyaram Jat, aged about 28 year was a resident of village Bisernia P.S. Chauhan district Banner. The appellants and jagram the accused acquitted by the court below are also residents of the same village. At sun set on May 7, 1980. Bhinyaram went to Bhojeria well to fetch water. While he was still there at the well accused Deraj also arrived there. Bhinyaram asked Deraj as to why he was after his children end abused them. This annoyed accused Deraj A scuffle took place between Bhinyaram and accused Deraj. PW 1 Deepa, PW 3 Magna and one Purkha intervened and separated them Deraj and Bhinyaram went towards their houses Deepa, Magna and Purkha continued to work at Bhojeria well In the midnight, Bhinyaram again came on the well and asked Deepa and others whether they had seen him being beaten by accused Deraj. While they were talking, Jagram (accused acquitted) came there and seeing Bhinyaram went away towards the Dhani of accused Deraj. After five ten minutes, the appellants Deraj and Kailaram along with Jagram came there armed with lathies. Jagram caught hold of Bhinyaram and felled him down. Thereafter accused Deraj and Kallaram struck blows with Lathies on the head, feet and neck of Bhinyaram. When Deepa, Magna and others tried to intervene, they were threatened with dire consequences by the appellants. The appellants then dragged Bhinyaram to some distance and put him in the way. There was profuse bleeding from the wounds of Bhinyaram and the clothes he was wearing got drenched with his blood. He did not survive and passed away then and there after sometime. Deepa (PW 1) went to PW 5 Tulsaram and apprised him of the incident. Tulsaram and some other persons came at the place where Bhinyaram was lying dead. Tulsaram went to Police Station, Chauhtan and verbally lodged report Ex. P 3 of the occurrence at about 10.00 A.M. on May 8, 1980. The police registered a case under Section 302/34. IPC against Dsraj, Kailaram and Jagram. The usual investigation ensued. The investigation was conducted by the Dy. Superintendent of Police Narain Singh (PW 13). He arrived on the spot inspected the site and prepared the inquest report of the dead body of Bhinyaram The blood-stained soil and the blood-smeared clothes of the deceased were seized and sealed. The autopay of the victim's dead body was conducted at about 10 00 A.M. on May 5, 1980 by PW 16 Dr. Gulab Vedara the then Medical Jurist, Government Hospital Barmer. The doctor noticed the following injuries on the victim's dead body:
(1) Ante mortem lacerated wound 2 cm. x 0.5 cm. x bone deep present over left eye brow
(2) Ante-mortem lacerated wound 2 cm. x 1 cm. x bone deep over right leg
(1) Fracture of skull bones frontal, parietal both sides and occipital bone
(2) Fracture of 8th and 9th rib left side
Dr. Vedera was of the opinion that the cause of death of Bhinyaram was shock due to head injury. The postmortem examination report issued by him is Ex. P 24. The appellants and Jagram were arrested. In consequence of the informations furnished by accused Deraj and Kallaram, two Lathies were recovered. After when the investigation was over the police submitted a challan against the two appellants and Jagram in the Court of Judicial Magistrate Barmer, who in his turn committed the case for trial to the Court of Sessions The learned Sessions Judge framed a charge under Section 302/34, IPC against all them, to which they pleadad not guilty and demanded the trial. In support of its case, the prosecution examined sixteen 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 Jagrara. The prosecution story relating to his presence on the spot and his catching hold of the deceased Bhinyaram was dismissed as untrue. He was consequently acquitted The prosecution case against the appellants was taken as substantially true. They were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentence, the appellants have taken this appeal.
3. We have heard Shri S.R. Singhi and Shri Suresh Kumbhat, learned counsel appearing for the appellants and Shri Niyazuddin Khan, learned Public Prosecutor for the State. We have also gone through the case file carefully.
4. Before dealing the contentions of the learned counsel appearing for the appellants, it would be useful to briefly notice the salient features of the case. The prosecution examined PW 1 Deepa and PW3 Magna as the occular witnesses of the occurrence. Each of them gave the same version of the incident. According to them, in the evening of May 7, 1980, when they were working at Bhojeria well, the deceased Bhinyaram came there to fetch water. While Bhinyaram was still there, accused Daraj also came there. Bhinyaram asked accused Deraj as to why he used to abuse his children. Accused Darai got annoyed. He caught bold of Bhinyaram and filled him down. A scuffle thus took place between Bhinyaram and accused Deraj. Deepa(PW 1), Magna(PW 3) and Magna's son Purkha intervened and they separated them. Bhinyaram and accused Deraj wait away towards their houses. In the midnight, while these two witnessss and Purkan were still working at the well, Bhinyaram came there and asked them whether they had seen him being beaten by accused Deraj. While the talks were going-on, Jagram (accused acquitted) came there and seeing Bhinyaram, want away. Five-ten minutes later, appellants Diraj and Kallaram accompanied with Jagram came there arms 1 with Lathies. Jagram caught hold of Bhinyaram and felled him down. Thereafter the appellants Deraj an Kallaram struck blows on the head, neck and feet of Bhinyaram. They then dragged Bhinyaram, took him 50 to 60 paces away and put him in the way. The appellants and Jagram thereafter want away. The learned Sessions Judge did not believe the prosecution story and the role assigned therein to Jagram. The prosecution story that Jagram first came to the wall and seeing Bhinyaram went away, was disbelieved. So also, the prosecution story Jagram's catching hold of Bhinyaram and felling him down was also disbelieved by the court below. Since the rob assigned by the prosecution to Jagram was not, believed, he was acquitted of the offence under Section 302/34, IPC.
5. Mr. Singhi and Mr. Kumbhat-appearing for the appellants did not challenge the incident and the testimony of PW 1 Deepa and PW 3 Magna. In assailing the conviction of the appellants, the only submission made by them is that the appellants were wrongly convicted under Section 302/34 IPC. It was argued that the deceased and the appellants were closely related inter se, having a common grand-father Panna. No bad-blood was between them before the incident. The incident took place on a trivial matter relating to the children. The appellants, therefore, had no intention to kill Bhinyaram. Since the scuffle bad taken place between the deceased and accused Deraj in the evening of May 7, 1980, Deraj got displeased and annoyed. The appellants are real brothers inter se. Accused Deraj could not digest the insult due to the deceased's scuffling with him. He and his brother Kallaram, therefore, wanted only to give a beating to their cousin Bhinyaram. Since the necessary guilty intention is not there, the offence made out is not covered by Section 302, IPC. The offence made out is that punishable under Section 325 or at the worst under the Second Part of Section 300, IPC. Reliance in support of the contention was placed on Shrikishan and Ors. v. State of Uttar Pradesh : 1972CriLJ1313 , Ram Lal v. Delhi Administration : 1973CriLJ17 , Lal Chand and Ors. v. State of Rajasthan 1984 RLW 596. Dhanna Ram and Ors. v. State of Rajasthan 1984 Cr. LR 450 Raj, and Bhagwati Prasad and Ors. v. State of Orissa 1984(2) Crimes 405.
6. In reply, it was contended by the learned Public Prosecutor that the appellants came together on the spot and jointly made an assault on the deceased Bhinyaram They went away together after dragging the deceased Bhinyaram at some distance. One of the blows was hit on the head of the deceased-victim. In these circumstances, the inevitable inference should be that the appellants had shared a common intention to cause the death of Bhinyaram. The injury inflicted on the victim's head was found sufficient in the ordinary course of nature to cause the death. As such, the learned Sessions Judge was correct in convicting the appellants under Section 302/34, IPC. We have given our anxious consideration to the submissions.
7. In Lal Chand's case (supra) to which one of us (Hon'ble Byas, J.) was a party, it was observed:
Frequently the cases occur where several persons take part in assaulting a man who dies from the cumulative effect of the assault. The question arises what offences have 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 grievous hurt or homicide or even murder according to the nature of violence of the assault and the intention and knowledge imputable to the accused.
8. The appellants have been convicted under Section 302 with the aid of Section 34, IPC. The applicablity of Section 34 depends on a criminal act having been done in furtherance of the common intention of all. The existence of a common intention between the participants in a crime is an essential element in order to press Section 34, IPC into service. In the absence of common intention, Section 34 has no applicability. To constitute 'common intention' under Section 34, it is necessary that the intention of each of the accused is known to the other and is shared by him. The question whether there was common intention is a question of fact and has to be decided on evidence. Direct proof of common intention is seldom available. Whether there was common intention or not is generally inferred from circumstances and the acts of the parties. When the existence of common intention is to be inferred from the circumstances, the circumstances must unerringly point out its existence. The inference of common intention should not, generally, be drawn unless it is the irresistible conclusion. In Srikishan's case(supra) there was no previous enmity between the deceased and the accused persons. The occurrence was an off shoot of a trifling scuffle incident between the urchins. Injuries were caused to victims by lathies only. There was no evidence as to which of the culprits had inflicted the fatal blow to the deceased victim. In those circumstances, it was held that the common intention of the culprits was only to give a severe beating to the deceased-victim. The facts in the instant case are more or less similar to those in Srikishan's case. In Ramlal's case (supra), the common intention to cause murder was missing. It could not be ascertained from evidence as to which of the culprits had inflicted the fatal blow on the head of the victim. The offence was taken to be that Under Section 325/34, IPC In Bhagwat Prasad's case (supra), it could not be ascertained in absence of clear evidence as to who of the four culprits had caused the fatal injury to the deceased. There were not circumstances to apply Section 34, IPC.
9. The aforesaid authorities, thus, render considerable help to the appellants. It may be pointed out that the observations made in Dhannaram's case (supra) are of no help to the appellants as the facts in that case were entirely different.
10. Coming to the case in hand, as discussed earlier, the appellants and the deceased are first cousins, having the common grandfather. There was no bad-blood between them before this occurrence. The scuffle between the deceased Bhinyaram and accused Deraj took place on a trivial matter relating to children. The scuffle did not result in injury to any of them. The motive that due to this scuffle the appellants wanted to finish the deceased, is lender and crucially inadequate. It could hardly prompt the appellants to commit the murder of Bhinyaram. Only two blows were inflicted to the deceased one of them, viz., on the head, was found fatal. The evidence of the eye witnesses Deepa (PW 1) and Magna (PW 3) does not point out as to which of the appellants was the author of this fatal injury inflicted on the victim's head. In view of these circumstances, it is difficult to raise the inference that the appellants had developed a common intention to kill Bhinyaram. The circumstances point out that accused Deraj got displeased and annoyed with the deceased due to the senile which took place between them. He, therefore, took his brother accused Kallaram with him to teach a lesson to the deceased. The common intention, which can be safely gathered from these circumstances, is that they wanted to give a severe beating to Bhinyaram. The common intention to cause the death is missing. According to us, therefore, the offence made out is not that Under Section 302/34, IPC. The common intention of the appellants was to cause grievous injury to the victim. Each of them can, therefore, be held guilty only for the offence Under Section 325/34, IPC. The conviction of the appellants Under Section 302/34, IPC does not appear correct and cannot be maintained.
11. In the result, the appeal of accused Deraj and Kallaram is partly allowed. Their conviction and sentence Under Section 302/34, IPC are set-aside and instead they are convicted Under Section 325/34, IPC and each is sentenced to five year's rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo two months like imprisonment. The period of detention, if any, undergone by them during investigation, enquiry or trial shall be set-off against the term of imprisonment imposed upon them. The appeal shall accordingly stand disposed of.