Milap Chand Jain, J.
1. These two appeals through jail arise from the judgment dated July 18, 1974 of the Additional Sessions Judge, Jalore. The learned Additional Sessions Judge, Jalore convicted the appellant Adiya of the offence Under Section 302 IPC and sentenced him to suffer imprisonment for life. The appellant Veesa was found guilty of the offence Under Section 302/34 IPC. He, too was awarded sentence of imprisonment for life. Both of the them were also sentenced to a fine of Rs. 100/- in default of payment of fine to under go one month's rigorous imprisonment.
2. The prosecution story briefly stated is that on April 7, 1973 at about 6 P.M. the informant Narsa (PW 2) was working in his field along with two labourers Amariya and Lachhiya, Deceased Tariya visited the field of Narsa in connection with fetching water. He brought with him an earthen pitcher and asked Narsa to run the well so that he may fill water in his pitcher. Narsa thereupon told him that he will just start his well. At that point of time Visa visited the field of Narsa, and demanded Rs. 4/- from Tariya which were due to him for the labour done by Veesa for Tariya. Thereupon, Tariya replied that the he will make payment in the morning. Visa told let it be a charity. It appears that these words infuriated Tariya and he caught hold of Veesa by his shirt and told him to accompany him for making payment. At this stage Adiya also appeared and on seeing him the accused Veesa caught hold of Tariya in his arms and exhorted to inflict a blow on Tariya. Thereupon, Adiya inflicted a blow on his head with the log of wood, which was in his hand. Tariya fell down as a result of the blow. When the accused Adiya raised his hands again for making a blow on Tariya second time, the witness Narsa intervened and caught hold of the log of wood. Thereafter, the family members of the accused persons as well as the father of the deceased viz., Chimna appeared. Narsa went to the Police Station Ummedpur lodged and a report Ex. P 2 at 10.00 P.M. The injured Tariya was first removed to Takhatgarh Hospital, where he was examined by PW 1 Dr. Shyam Singh. Thereafter, Tariya was removed to Jodhpur Hospital where he succumbed to the injury. Dr. P. Dayal conducted the autopsy of the dead body of Tariya. We may mention the injury which was found on the person of the deceased Tariya by PW 1 Dr. Shyam Singh, which is as follows:
(1) A lacerated wound of about 1-1/4' x 1/8 in the left half of the scalp of full skin thickness in fronto parietal region about 5' away from bridge of the nose. There was slight bleeding from the wound.
After sustaining of the injuries, the injured remained unconscious and continued to remain unconscious till his death. In the autopsy, Medical Jurist Dr. P. Dayal noticed the following injuries:
(1) Lacerated wound 3 cm. long it was stitched and was skin deep. It was stitched 14 cm. from the bridge of nose on left side of scalp;
(2) There was a lumber puncture mark;
(3) Haemotama over the whole surface of skull on left side and in vertex region of the skull;
(4) Comminuted fracture of left temporal and parietal bone. The fracture continued as fissured fracture in the frontal region along the fronto parietal suture to the right side;
(5) Extra dural Haemotama over the left temporal region of brain;
(6) Extra dural haemotama over the right parietal region of brain;
(7) Fissured fracture about 1.5 cm. long in the anterior crevical fessa on left side;
(8) Fissured fracture about 1 cm. long in the anterior cervical fessa on right side.
After usual investigation, charge sheet was presented against the accused-persons, who were committed for trial to the court of Addl. Sessions Judge, Jalore. The learned Addl. Sessions Judge charged the accused Adiya of the offence Under Section 302 IPC and the accused Veesa of the offence Under Section 302/34 IPC. The accused-persons denied the charge and claimed to be tried. At the trial, the prosecution examined as many as 6 witnesses. The statements of the accused persons were recorded, in which, they denied the prosecution case. Adiya in his statement stated that witnesses have falsely implicated them. His brother Veesa is handicapped. His both arms do not work since birth. Similar is the statement of the accused Veesa. On the basis of the evidence of PW 2 Narsa and PW 3 Amariya coupled with the medical evidence, the learned Additional Sessions Judge found the accused Adiya guilty of the offence Under Section 302 IPC and accused Veesa of the offence Under Section 302/34 IPC.
3. We have heard Shri Doonger Singh, learned counsel for the appellants and Shri L.S. Udawat, learned Public Prosecutor for the State.
4. Mr. Doonger Singh, learned counsel for the appellant submitted that the appellant Veera has been wrongly found guilty of the offence under Section 302/34 I.P.C. The evidence relating to exhortation assigned to him consisting of Narsa and Amariya is discrepant. What exhortation was given by the accused Veesa, the version given by the witness Narsa in his trial statement in examination-in-chief stands completely negatived by the version of the FIR and by the version given by this witness in his previous statement (Ex.D. 1) recorded under Section 164 Cr.P.C. Even in Ex. D. 1 in cross-examination he categorically stated that the accused Veesa did not exhort to inflict a blow on the head of Tariya. Even exhortation assigned to Veesa by the witness Narsa is to cause a blow. He submitted that even witnes Amariya does not support Narsa on the version as appearing in the examination-in-chief. Besides that, Mr. Doonger Singh also pointed out that looking to the physical condition of the arms of Veesa, it was not possible for him to hold the victim Tariya in his arms. He also pointed out that the evidence of exhortation has been considered to be a very weak type of evidence by the Courts. Apart from that, so far as the present case is concerned, the evidence of Narsa is rendered incredible because of his different version at different stages and Amariya too, has not supported him.
5. We have considered the above submissions of Mr. Doonger Singh. On the basis of the evidence of Narsa and Amariya, in our opinion, it is clear that the prosecution has not been able to establish that the accused Veesa gave an exhortation to the effect calling upon the accused Adiya to inflict a lathi blow on the head of Tariya. What is made out from the evidence is that he simply exhorted to inflict a blow. By this exhortation and other act what offence will be made shall be examined while considering the case of Adiya.
6. The most material question, so far as the present case is concerned, is at to what offence is made out against accused Adiya. It is amply proved from the evidence on record that the author of the fatal injury on the head of the deceased is the accused Adiya. It is true that the impact of the single blow on the head of the deceased was very severe. Soon after landing of the blow, the victim became unconscious and after some time of the receipt of the injury, be died at Jodhpur Hospital. We have already noted the injures which were found by the Medical Jurist in the autopsy. The question is, can it be positively found that the assailant Adiya inflicted the blow with the necessary animus to commit the offence of murder. The back ground in which the occurrence took place, in our opinion, manifests the absence of such an intention on the part of the assailant. By no stretch of imagination, it can be said that the accused Adiya intended to cause the death of Tariya. The occurrence took place only in connection with the demand of Rs. 4/-, which was due from the deceased had caught hold of the accused Veesa by shirt. It is at that stage that a blow came to be inflicted on the head of the deceased at the instance of the accused Adiya. The circumstances, in our opinion, do not in any way indicate or point out that there was any such intention on the part of accused Adiya to cause death of the deceased. However, this knowledge can certainly be imputed to Adiya that the blow which he is going to inflict would be such which may likely cause death of the victim. Thus, in our opinion, the appellant Adiya cannot be found guilty of the offence under Section 302 IPC. He can only be held guilty of the offence under Section 304, Part II, IPC. It is an ordinary trifling matter which gave rise to the incident of causing a single blow on the head of the deceased and which no doubt resulted into death but the necessary animus and the other ingredients of that offence of murder are lacking. The appellant Adiya cannot be held guilty of the offence of murder.
7. Now the question arises, can there be common intention on the party of Adiya and Veesa for the offence of culpable homicide not amounting to murder. From the proved exhortation, in our opinion no such common intention can be found that Veesa intended to commit the offence of culpable homicide not amounting to murder. The exhortation simply related to inflicting of a blow on the deceased and it appears that Adiya himself entertained and thought to act in the manner as he did. The knowledge which preceded the act of Adiya cannot be said to be shared by the accused Veesa. As such it cannot be said that whatever intention, Adiya had, Veesa also entertained the same. Rather, there could be no common intention. As such Veesa can only be held responsible for his individual act. He can only be held liable of the offence under Section 323 I.P.C. His acts do not extend beyond holding the deceased in his arms, and making exhortation there-after. Thus we hold the accused Adiya guilty of the offence under Section 304, Part II, I.P.C. and the accused Veesa of the offence under Section 323 I.P.C. Both of the accused have remained in custody for a considerable time. Both the accused-persons were arrested on 1973. Accused Adiya continued to remain in custody upto August 18, 1978 and the accused Veesa remained in custody from April 10, 1973 to September 25, 1973 and from July 11, 1974 to August 18, 1978. In view of the period of custody, we sentence to the accused Adiya to the period of his custody for the offence under Section 304 Part II, I.P.C. Accused Veesa has remained in custody beyond the maximum prescribed period of sentence for the offence under Section 323 I.P.C. So, he is sentenced to the maximum period of sentence prescribed for the offence under Section 323 I.P.C.
8. The result is that the appeal is partly allowed as indicated above. The appellants are on bail. They need not surrender. Their bail bonds stand discharged.