Gopal Kishan Sharma, J.
1. This appeal has been preferred against the judgement dated 30th November, 1983, passed by the Sessions Judge, Tonk, where by he convicted appellant Mohammad Arif of the effence under Section 302, IPC, and sentenced him to imprisonment for life and a fine of Rs. 2000/- and in default of payment of fine, to further undergo 1 month RI. For the effence under Section 323 or 323/34, IPC he sentenced him to 3 months' RI Appellants Abid Shah and Ansar were convicted of the offence under Section 302/34 IPC and sentenced to imprisonment for life and a fine of Rs. 200/- each, and in default of payment of fine, to further undergo 1 month's RI. For the offence under Section 323 or 323/43, IPC, each of them was sentenced to 3 months' RI.
2. The brief facts of the case giving rise to this appeal, are that on 19th July, 1983, Sitaram lodged a report at PS, Kotwali, Tonk, at about 8 a.m. alleging that his mother was a contractor for plucking 'Jamun' from the trees at Idgah Bagh Hostel. In the morning his brother, Munna was dropping fruits, while his mother Mst. Phoola, Shanti, Rodi, w/o Nathu, Jaguna, wife of Peermal and he himself were collecting the fruits in baskets. At that time, Ansar, son of Abid Shah, came there and picked up some 'Jamun' from the basket of Mst. Shanti, at which, she obstructed, and Ansar gave her filthy abuses. Ansar further told that he would eat the 'Jamuns' from the basket. Sitaram then told him that he might collect 'Jamun' from the ground and eat them. Annoyed by this Ansar told that he would just then show the consequences. Thereafter, Ansar went away and after some time, he along with his elder brother, Mohammad Arif, and his father, Abid Shah armed with lathis came to the spot. Then, all the three attacked Sitaram. caught his neck and started beating him with the lathis. Mst. Shanti, Mst. Rodi Mst. Jamuna and Mst. Phoola tried to intervene but, they were also beaten by the accused persons, Mst. Jamna was caught hold of by Ansar and Abid Shah and Mohammad Arif gave kicks on her stomach. At this, Mst. Jamna fell down on the ground. On hearing the cries of Mst. Phoola & Mst. Rodi, Kishan Gujar & Raju Sharma came there. Mst. Jamna fell down on the ground and became unconscious. She was then removed to hospital, where the doctor declared her dead. On this report, a case Under Sections 302 & 323/34, IPC, was registered. After investigation and getting the post-mortem report, the police submitted a challan against the accused-appellants Under Sections 302, 302/34 & 323, IPC. After that, they were committed to the court of Sessions. The learned Sessions Judge framed charges against Mohammed Arif Under Sections 302 & 323/34 IPC. Accused Abid Shah and Ansar were charge-sheeted Under Sections 302/34 & 323/34, IPC. All the accused persons pleaded not guilty and claimed trial.
3. The Prosecution in support of its case, examined 18 witnesses in all. The accused persons completely denied the occurrence and stated that they have been falsely implicated in this case. The case of the accused persons was that their goat had gone stray and while searching his goat, Ansar went to the 'Jamun' tree and started picking up some 'Jamuns' and at this Sita Ram Munna and 2-3 ladies started abusing him and caught hold of him and beat him. He (Ansar) then started crying. At this, his brother who was also searching the goat nearby, came there and found that Ansar was being beaten by these persons. He (Mohammad Arif) pushed them one side. They have also stated that their father, Abid Shah came to the spot subsequent to the incident.
4. The learned Sessions Judge accepted the prosecution story and found the accused persons guilty of the offences and sentenced each of them as mentioned above.
5. It is not disputed that Mst. Jamna died on account of some injury. It is not a case of natural death, but of a homicide. Both the learned counsels for the parties have not disputed this fact that the death of Mst. Jamna was homicidal in nature.
6. The learned counsel for the appellants, has argued that Abid Shah and Ansar have been falsely implicated in this case, and that, Ansar was not at all present at the spot when the incident occurred but he came there subsequently. He has also argued that even from the prosecution evidence, it is clear that Abid Shah and Ansar have not inflicted any blow to Mst. Jamna. So, according to him both Abid Shah and Ansar cannot be held responsible for the death of Mst. Jamna. He then argued that both these appellants have been found guilty under Section 302/134 IPC, where as, they can be held guilty with the aid of Section 34, IPC only if there is any evidence on the record to show that the accused persons had any common object to commit the offence. In the present case, the dispute arose on a petty matter of picking up some 'Jamuns' by Ansar. While Ansar was being beaten, Mohammad Arif came there and tried to save Ansar, by pushing the ladies one side who were beating Ansar, argued Mr. Ali, the learned counsel for the appellants. According to him. Abid Shah, father of Ansar and Mohammad Arif arrived there subsequently. So, he argued that the dispute was only with regard to picking up some 'Jamuns' by Ansar, and in that dispute, the occurrence took place. So, there is no iota of evidence to show that the accused appellants had any common object for inflicting any injury to Mst. Jamna (deceased) or for causing her death.
7. It was also argued by the learned counsel for the accused-appellants that had the accused-appellants had any common object, then, Abid Shah and Ansar would have inflicted blows to Mst. Jamna. In this regard, he referred to the statements of the prosecution witnesses, namely, Sita Ram PW 1, Mst. Phoola PW 2, Radhakishan Gurjar PW 5 and Munna Lal PW 10. All these witnesses have stated that all the accused persons had come with lathis in their hands, and they stated beating Sita Ram and when Mst. Jamna came to rescue him (Sita Ram), she was caught hold of by the other two accused persons and Mohammad Arif gave a lathi-blow on the stomach of Mst. Jamna. Mohammad Arif, according to the statements of these witnesses also gave fist blows on the stomach of Mst. Jamna. So far as Abid Shah and Ansar are concerned, these witnesses have stated that they had caught hold of Mst. Jamna and Mohammed Arif inflicted blows to her. So, all the prosecution witnesses named above, have stated that Mohammed Arif inflicted blows to Mst. Jamna, and none of these witnesses has stated that Abid Shah or Ansar also inflicted some blows to Mst. Jamna. This shows that the accused persons had no common intention to beat Mst. Jamna. Apart from this, there is nothing on the record of this case which proves that the accused persons had come with any common object of murdering or even beating Mst. Jamna. We therefore, agree with the argument of the learned counsel for the accused appellants that the prosecution has failed to prove any common object the accused persons, and unless any common object is established, Abid Shah and Ansar accused-appellants in this case, cannot be held guilty of the offence under Section 302/34, IPC. Therefore, in our opinion, both the accused appellants Abid Shah and Ansar have been wrongly held guilty of the offence under Section 302/34, IPC. No case is made out against these two accused persons, and as such, we do not find them guilty of the offence Under Section 302/34, IPC.
8. Now, the question remains to be considered is as to what offence these two accused-appellants have committed in this case. All the prosecution witnesses have stated that all the accused persons were beating Sita Ram, and when Mst. Rodi, Mst. Jamna and Mst. Shanti came to rescue him, they were also beaten. Sita Ram PW 1 has stated that he was surrounded by all the accused persons, and that Mohammad Arif gave him a blow on his right side and Abid Shah tore off his 'Banyan' and also gave him a slap.
9. Smt. Phoola PW 2 has stated that all the accused persons were beating Sita Ram, and when she went to his rescue, Mohammed Arif and Ansar inflicted lathi blows to her; and further that when Mst. Jamna came to rescue Sita Ram, Mohammed Arif inflicted blows to her. She has not stated that Abid Shah also beat her or anybody else. Mst. Rodi PW 9 has not deposed anything against these two accused persons. She even could not identify the accused persons in court. She has not stated that they had beaten Sita Ram, Mst. Jamna and others.
10. Munna PW 10 has stated that Abid Shah and Ansar started beating his mother with slaps and fists.
11. So, the entire evidence is of a general nature so far as accused Abid Shah is concerned. There is no specific allegation about Abid Shah. So looking to the entire evidence. We feel that the prosecution has not been able to prove, the case against Abid Shah appellant. It has also not been established that he inflicted any blow to anybody. So, we do not find Abid Shah guilty even of the offence under Section 323, IPC. From the evidence, a case under Section 323, IPC is made out against appellant Ansar, and we accordingly find him guilty of this offence.
12. We have examined the case of Mohammed Arif, who has been found guilty of the offence under Section 302, IPC. The learned counsel for the appellants has argued that a case under Section 302, IPC, has not been established against Mohammed Arif. According to him, it is not a case of culpable homicide amounting to murder. He argued that the case of Mohammed Arif is covered by Section 304, IPC.
13. We have considered the arguments advanced by both the learned counsel and also gone through the entire record. All the prosecution witnesses have stated that. Mohammed Arif gave fist blows on the stomach of Mst. Jamna, and that he also gave lathi blow on her stomach. On account of these blows, Mst. Jamna fell down on the ground and became unconscious, and when she was taken to hospital, the doctor declared her dead. The statements of PW 11 Dr. S.S. Sarkar and PW 12 Dr. J.C. Gehlot, were also perused by us. It seems that a Medical Board was constituted consisting of Dr. S.L. Agrawal, Dr. J.C. Gehlot and Dr. S.S. Sarkar for conducting post mortem examination on the dead body of Mst. Jamna. The Medical Board opined that the cause of death of Mst. Jamna was injury to the right side of the chest-wall resuliing into pleural shock, haemotoma and death. Mst. Jamna had only two external injuries on her person, and according to the doctors, these injuries were abrasions caused by some blunt weapon. Injury No. I was on the right side posterior auxiliary line, which was a simple injury. Dr. Sarkar PW 11 has stated that the said injury could be caused by a fall on some hard object. He has also stated that there was no external injury on the chest on interior side. The Medical Board has not opined that' the injuries were sufficient in the ordinary course of nature to cause death. As such, from the medical evidence and the post-mortem report, we find that Mst. Jamna had only 2 external injuries on her person and that too abrasions. Injury No. 1 was a simple wound, and the doctors have not stated that the injuries were sufficient to cause the death.
14. Section 299, IPC defines 'culpable homicide,' According to this section, who ever causes death by doing an act with the intention causing such bodily injury as is likely to cause death, or with the knowledge that he is likely to cause death, or with the knowledge that he is likely, by such act, to cause death, commits the offence of culpable homicide. A culpable homicide is murder if the act by which the death is caused, is done with the intention of causing death or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death to the person to whom the harm is caused; or if it is done with intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or if the person committing the act Knows that it is so imminently dangerous that it must, in all probability, cause death; or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring risk of causing death or such injury aforesaid. So, in the circumstances mentioned above, a culpable homicide is murder. In the present case, there is no evidence to prove that accused Arif had any intention of causing death of Mst. Jamna. Even from the evidence it cannot be inferred that Mohammed Arif had any intention of causing such bodily injury, or that he knew that injury was likely to cause death. Even it cannot be inferred that Mohammad Arif had inflicted blows to Mst. Jamna with the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death. Also, it cannot be said that the injury inflicted by Mohammad Arif to Mst. Jamna was so imminently dangerous that it, in all probability, would cause her death. The medical evidence also does not support the case of the prosecution that the injuries were sufficient in the ordinary course of nature to cause death. So in our opinion, a case under Section 302, IPC is not made out against accused-appellant Mohammed Arif. Mst. Jamna died on account of some injury to the right side of her chest which resulted in shock and haemotoma. But that injury was not sufficient in the ordinary course of nature to cause death. So, no case under Section 302, IPC is made out against Arif accused. He had no intention of causing death of Mst. Jamna or causing such bodily injury as was likely to cause her death. So, this case is not even covered by Section 304 also. But, it is covered by Section 304-II, IPC only. Arif accused gave fist and lathi blows on the stomach of Mst. Jamna and it cannot be inferred that he had the knowledge that the said injury was likely to cause her death. He had no intention of causing death of Mst. Jamna, because, the whole dispute arose on picking up some 'Jamuns' by Ansar. While Ansar was picking up 'Jamuns' he was obstructed, and at the particular moment, the dispute arose, and Mohammed Arif inflicted blows to Mst. Jamna. It cannot be said that Mohammed Arif had come to the spot with the intention of causing death of Mst. Jamna, or inflicting such bodily injury as was likely to cause her death.
15. Therefore, in our opinion, a case under Section 302 IPC is not made out against Mohammed Arif accused also. But, a case under Section 304-II is made out against him, and we hold accordingly.
16. We thus find that the learned Sessions Judge could not appreciate the legal proposition of murder, and as such, he has incorrectly arrived at the conclusion that Mohammed Arif accused-appellant is guilty of the offence under Section 302 IPC. We are unable to maintain this finding of the learned Sessions Judge.
17. In the result, appellant Abid Shah's appeal is accepted. He is not found guilty either under Section 302/34 or under Section 333/34, IPC. He is acquitted of these charges. He is on bail. He need not surrender to his bail bonds which are hereby cancelled.
18. The appeal of Ansar accused is partly accepted. He is acquitted of the offence under Section 302/34, IPC, and found guilty under Section 323/34, IPC only. He was sentenced to 3 month's RI for the said offence. He has already been in jail for more than 2 months. We think, the period of imprisonment already undergone by him, would meet the ends of justice. We accordingly sentence him to the period of imprisonment already undergone by him. He is also on bail. He need not surrender to his bail bonds, which are hereby cancelled
19. The appeal of Mohammed Arif appellant is also partly accepted. He is acquitted of the offence under Section 302 IPC. But, he is found guilty under Section 304-II, IPC. He has been in jail since his arrest in this case. So, he has already been in jail for about 1 year and 9 months. We, therefore, sentence him to the period already undergone by him. He is in jail. He be released forthwith from the jail, if not required in any other case.