Judgment:
K. Jayachandra Reddy,; S. Mohan and; G.N. Ray, JJ.
1. This appeal has been filed on behalf of 12 accused persons. The appellants along with three others were tried for offences punishable under Sections 302, 323, 325/149 and 447 IPC. The trial court acquitted two of them of all the charges and convicted the rest under Sections 304(2)/149, 323/149, 325/149 and 447 IPC and sentenced each of them to undergo five years' RI and other sentences. All the sentences were directed to run concurrently. During the pendency of the appeal in the High Court one of the accused, namely, Nathu died. Twelve appellants preferred an appeal and the State also preferred an appeal against the acquittal of the murder charge. The High Court while dismissing the appeal filed by the State confirmed the conviction as awarded by the trial court. Hence the present appeal.
2. The prosecution case is as follows: The accused and the material witnesses of whom some are injured and the deceased belonged to Kishanpura village. PW 5, Madho, lodged a report on 29-7-1972 alleging that they had a field in which they raised a boundary wall about a month back and on that day while his brother, his nephew and he himself were harvesting crops, they heard a noise and they saw the accused persons demolishing the boundary wall and they also saw some of the accused persons inflicting injuries on the deceased and other attacking the other witnesses. When PW 5 reached that place, two of the accused Johari and Hanuman gave him a lathi blow. After inflicting these injuries the accused left the place. The injured and the witnesses went to the police station and lodged a report. A case was registered and investigation commenced. The deceased, Shrilal, succumbed to his injuries. The doctor who conducted the post-mortem found eight injuries out of them the first injury was lacerated wound on the parietal region and rest were all abrasions and swellings either on the fingers or on the hands. The injured witnesses were also examined for their injuries. On them also, the doctor who examined found some abrasions and wounds. The accused were arrested and after completion of the investigation the charge-sheet was laid.
3. It appears during the same occurrence some of the accused persons also received injuries and they also gave a report and a case was registered.
4. The learned trial Judge having considered the evidence of eyewitnesses particularly the evidence of injured witnesses and other surrounding circumstances took the view that there was an unlawful assembly and the common object was not to commit murder but was only to commit culpable homicide. Accordingly, he convicted the accused persons under Section 304 Part II read with Section 149 IPC. The accused persons were also convicted under Sections 323/149, 325/149 and 447 IPC for causing injuries to the witnesses. The High Court while dismissing the appeal of the State, however, held that a case of unlawful assembly is not made out and, therefore, Section 149 IPC could not be applied and in that view of the matter altered the conviction to Section 304 Part II read with Section 34 IPC but maintained the sentence. The sentences awarded for other minor offences were confirmed.
5. Learned counsel for the appellants submits that the High Court has not considered the genesis of the occurrence and has also not considered the effect of the accused having received the injuries during the course of the same transaction and the accused had the right of self-defence and, therefore, the judgments of the High Court as well as of the trial court are to be set aside particularly in view of the fact that the right of self-defence cannot be denied to the accused persons.
6. The cross-examination in respect of the counter case cannot in any manner affect the evidence of the witnesses in the present case unless there are material discrepancies or omissions. So far as the present case is concerned, the trial court as well as the High Court have considered the evidence of the five eyewitnesses who were all injured. No doubt the High Court has not discussed in detail the plea of the accused regarding the self-defence but on the basis of the evidence to the extent considered has given a categorical finding that the plea of self-defence cannot be accepted. The High Court, however, having regard to the nature of the weapons used and injuries inflicted on the deceased held that an offence under Section 304 Part II read with Section 34 IPC is made out.
7. Learned counsel for the appellants further submits that the High Court having given a finding that there was no unlawful assembly and that Section 149 could not be made applicable erred in convicting all the accused under Section 304 Part II read with Section 34 IPC. According to the learned counsel to apply Section 34 to a case of this nature there should be clear evidence to show that all of them shared the common intention and in the absence of such evidence only such of those accused who inflicted the injuries on the deceased alone could be liable under Section 304 Part II. We find considerable force in this submission. The High Court while excluding the applicability of Section 149 has in so many terms mentioned that it was a sudden quarrel and there was a fight and each party inflicted injuries on the other and the accused in the instant case were armed with ordinary weapons and not with deadly weapons. Having stated so, to apply Section 34 there should be clear evidence that everyone of them participated in the attack otherwise all the 13 accused cannot be made constructively liable by the application of Section 34. The evidence shows that Johari, Bheru and Hanuman, appellants 4, 11 and 12, respectively alone inflicted injuries with lathis on the deceased and they can only be convicted under Section 304 Part II read with Section 34 IPC.
8. In the result, the appeal of appellants 1 to 3 and 5 to 10, namely, Ramkaran, Sarwan, Ram Narain, Rameshwar, Sheoji, Narayan, Ramu, Bhagata and Jagdish is partly allowed and their conviction under Section 304 Part II read with Section 34 IPC is set aside. Their conviction under Sections 325/34 IPC is, however, confirmed but the sentence awarded to each of them under that count is reduced to 10 months' RI. They are also convicted under Sections 323 and 447 IPC. The conviction and sentence under these counts are, however, confirmed. All the sentences to run concurrently.
9. So far as appellants 4, 11 and 12 are concerned, it is represented that appellant 11, Bheru, died during the pendency of the appeal in this Court and, therefore, his appeal abates and it is accordingly dismissed. As regards other two accused-appellants 4 and 12, namely, Johari and Hanuman, their conviction under Section 304 Part II read with Section 34 IPC is confirmed but we reduce the sentence to 3 years' RI. They are also convicted under Sections 323, 325/34 and 447 IPC. Their conviction and sentence under these counts are, however, confirmed. All the sentences to run concurrently. Subject to this modification of sentence, the appeal of Johari and Hanuman is dismissed.