Judgment:
Y.R. Meena, J.
1. These cross appeals are directed against the judgment of the learned Additional Sessions Judge, Nohar dated 28-3-1985, whereby, he convicted and sentenced as under : -
(1) Accused Prem & Mst. Rameti:
Under Section 304/34, I.P.C. 10 years' R.I. and a fine of Rs. 500/-
Under Section 324/34, I.P.C. 2 years' R.I.
Under Section 447, I.P.C. 2 months' R.I.
(2) Accused Nathuram:
Under Section 304/34, I.P.C. 10 years'R.I. and a fine of Rs. 500/-
Under Section 324, I.P.C. 2 years'R.I.
Under Section 447, I.P.C. 2 months' R.I.
All the substantive sentences have been ordered to run concurrently for each accused.
2. The accused-appellant have challenged their conviction for the offences as stated above, while the State has challenged the judgment on the ground that the accused-appellants are liable for conviction for the offence under Section 302, IPC, therefore, they should be convicted for the offence under Section 302, IPC instead of Section 304, IPC.
3. The prosecution case is that one Jagdish s/o Hariram (deceased) r/o Village Birkali, lodged an oral report at the police station, Nohar stating that his maternal uncle Nathuram and Prem live at Birkali, have a dispute on the agricultural land between the accused and the deceased, therefore, they are in inimical relations. On the morning of 7-11-1981, the informant had gone to his field to sow the gram. His sister Shanti came to the field with his meals at 10 a.m. The land of his maternal uncles Nathuram and Prem is just adjacent to the field of the informant and his father Hariram. At about 12.00 noon, his father Hariram and one Gulab also came on the field. On seeing them, the informant's maternal uncle Prem came to his father and complained that his (Hariram) son was abusing the accused appellants. Immediately, thereafter, his maternal uncle Nathu, and Mst. Rameti w/o Prem came to their field, who had sickles in their hands. Nathuram caught hold of the hand of his father Hariram, Nathu and Mst. Rameti gave sickle blows to him. Hariram some how escaped and ran away towards village but the accused persons caught hold of him again under Bordi tree and gave merciless beating. Prem had a pistol and he used the butt of pistol. Nathu and Mst. Rameti gave sickle blows and also used bricks. The informant i.e. son of the deceased tried to save his father Hariram, on which, Nathu gave a sickle blow on the left side of the forehead of Jagdish. Prem also threatened them not to come near, otherwise, he would kill them. The informant Jagdish and Gulab ran away. As a result of severe beating, there was profused bleeding from the person of the deceased and he died. He along with his sister came to their mother and narrated the whole incident. On this information, a case under Sections 302/34,324,447, IPC was registered against the accused-appellants at police station, Nohar. The post-mortem was got conducted. The site-plan was prepared. Samples of blood-stained soil and controlled soil were taken and they were sent to the F.S.L. Two blood-stained wooden patties, blood-stained clothes of the deceased, bloodstained Juti, were also collected from the spot, sealed and sent to F.S.L. for chemical examination. Panchayatnama was prepared. Accused Prem, Nathuram and Mst. Rameti were arrested. At the instance of accused Prem, a blood-stained broken pistol was recovered. At the instance of accused Nathu and Mst. Rameti, blood-stained sickle was recovered. After usual investigation the challan was filed in the Court of Munsif & Judicial Magistrate, Nohar, who in his turn, committed the case to the Court of Session. The accused-appellants pleaded not guilty but they claimed for trial. During trial, as many as 14 witnesses have been examined by the prosecution. The statements of the accused persons under Section 313, Cr.P.C. were recorded.
3. The prosecution case is that one Jagdish s/o Hariram (deceased) r/o Village Birkali, lodged an oral report at the police station, Nohar stating that his maternal uncle Nathuram and Prem live at Birkali, have a dispute on the agricultural land between the accused and the deceased, therefore, they are in inimical relations. On the morning of 7-11-1981, the informant had gone to his field to sow the gram. His sister Shanti came to the field with his meals at 10 a.m. The land of his maternal uncles Nathuram and Prem is just adjacent to the field of the informant and his father Hariram. At about 12.00 noon, his father Hariram and one Gulab also came on the field. On seeing them, the informant's maternal uncle Prem came to his father and complained that his (Hariram) son was abusing the accused appellants. Immediately, thereafter, his maternal uncle Nathu, and Mst. Rameti w/o Prem came to their field, who had sickles in their hands. Nathuram caught hold of the hand of his father Hariram, Nathu and Mst. Rameti gave sickle blows to him. Hariram some how escaped and ran away towards village but the accused persons caught hold of him again under Bordi tree and gave merciless beating. Prem had a pistol and he used the butt of pistol. Nathu and Mst. Rameti gave sickle blows and also used bricks. The informant i.e. son of the deceased tried to save his father Hariram, on which, Nathu gave a sickle blow on the left side of the forehead of Jagdish. Prem also threatened them not to come near, otherwise, he would kill them. The informant Jagdish and Gulab ran away. As a result of severe beating, there was profused bleeding from the person of the deceased and he died. He along with his sister came to their mother and narrated the whole incident. On this information, a case under Sections 302/34,324,447, IPC was registered against the accused-appellants at police station, Nohar. The post-mortem was got conducted. The site-plan was prepared. Samples of blood-stained soil and controlled soil were taken and they were sent to the F.S.L. Two blood-stained wooden patties, blood-stained clothes of the deceased, bloodstained Juti, were also collected from the spot, sealed and sent to F.S.L. for chemical examination. Panchayatnama was prepared. Accused Prem, Nathuram and Mst. Rameti were arrested. At the instance of accused Prem, a blood-stained broken pistol was recovered. At the instance of accused Nathu and Mst. Rameti, blood-stained sickle was recovered. After usual investigation the challan was filed in the Court of Munsif & Judicial Magistrate, Nohar, who in his turn, committed the case to the Court of Session. The accused-appellants pleaded not guilty but they claimed for trial. During trial, as many as 14 witnesses have been examined by the prosecution. The statements of the accused persons under Section 313, Cr.P.C. were recorded.
4. Taking into account evidence on record including the statements of the prosecution witnesses and statements of the accused persons, the learned Additional Sessions Judge, Nohar came to the conclusion that the accused persons are responsible for committing the offence punishable under Section 304, IPC, thus he convicted and sentenced the accused persons as stated above.
5. Being dissatisfied with the judgment o f conviction and order of sentence, the State came up in appeal with a grievance that the accused persons should be convicted for the offence punishable under Section 302, IPC, while in cross appeal, the accused-appellants prayed that they have not committed any offence and they have been wrongly convicted for the offence punishable under Section 304, IPC.
6. Mr. Bhagwati Prasad, learned counsel for the accused-appellants submitted that the F.I.R. is belated. The motive in this case alleged, is that son of the deceased abused the accused persons and that cannot be substantive motive behind the murder. The prosecution has concealed the true facts. PW1 Jagdish and PW2 Sushila, both are children and interested witnesses. They are son and daughter of the deceased, therefore, they are interested witnesses. The prosecution has not explained the injuries on the person of Nathu and Prem. The FIR reached on the next day in the Court of Munsiff and Judl. Magistrate, Nohar. The incident took place in the field of the accused-appellants and dead-body was also recovered from the field of accused persons. Alternatively, the case does not travel beyond Section 304, Part II, IPC as there was a sudden fight in the heat of passion. The learned Public Prosecutor has placed reliance on the judgment of the learned Addl. Sessions Judge, Nohar.
7. Mr. P. N. Mohanani, learned counsel for the complaint submitted that there is a motive behind the murder. The accused-appellants and the deceased were in inimical relation as there was a dispute in respect of agricultural land, which was ultimately given to the deceased just before three months i.e. before the date of this occurrence. PW1 Jagdish and PW2 Mst. Sushila are the son and daughter of the deceased but only on that ground, they should not be disbelieved. Their version is further corroborated by the statement of PW3 Gulab, who is an independent witness and has witnessed the occurrence. The presence of the accused-appellants cannot be doubted as they themselves medically examined and sustained simple injuries during incident.
8. Heard Mr. Bhagwati Prasad, learned counsel for the accused-appellants, Mr. C. R. Jakhar, learned Public Prosecutor for the State and Mr. P. N. Mohanani, learned counsel for the complainant and perused the entire material on record.
9. The prosecution case is that on 7-11-1981 at about 12 noon, the accused-appellants have mercilessly beaten the deceased Hariram, which resulted in his death on the spot. In support of the prosecution case, the prosecution has examined, inter alia, three eye-witnesses namely; PW1 Jagdish, PW2 Mst. Shanti and PW3 Gulab. PW1 Jagdish is son of the deceased Hariram and Mst. Shanti (PW2) is daughter of Hariram. Gulab PW3 is by caste Musalman and is an independent witness.
10. Mr. Bhagwati Prasad, learned counsel for the appellants, submitted that the F.I.R. is belated. The occurrence took place at 12 noon on 7-11-1981. The FIR was lodged on the next day. We have perused the material on record and FIR, it appears that the F.I.R. was lodged by Jagdish (PW1) at 4 p.m. on 7-11-1981 i.e. on the same day. The distance between the place of occurrence and police station is 14 miles. Considering these facts, the FIR was lodged just after 4 hours of the occurrence, therefore, it cannot be said that the FIR is in any way belated. Hence, there is no substance in the submission of the learned counsel for the appellants on this issue. Mr. Bhagwati Prasad further contended that PW1 Jagdish and PW2 Shanti should not be believed as they are interested witnesses and PW1 Jagdish was 13 years of age and PW2 Shanti was 8 years of age at the time of incident.
11. It is true that PW1 Jagdish is son of the deceased Hariram and he is aged 13 years, but his trustworthiness should not be doubted only on the basis that he is son of the deceased. The evidence on record be appreciated taking into over all facts and circumstances of the case. The prosecution case is that Jagdish went in the morning to sow the gram in his field. Thereafter, at about 10.00 a.m. his sister Mst. Shanti came along with break-fast/meals at the field. The accused-appellants have agricultural land just adjacent to the land of the deceased. The accused Prem was ploughing the field while Mst. Rameti and Nathuram were harvesting the crop. At about 12 noon, the deceased Hariram came on the field along with one Gulab. On seeing Hariram, (deceased), the accused Prem came and abused him. He was caught hold by Nathuram and then gave beating. He, however, escaped and ran towards village, he was again caught hold by these accused persons who gave beating mercilessly to him. While the deceased was being beaten by these accused-appellants, PW1 Jagdish tried to save or intervene. On that, Nathuram gave a sickle blow on the left side of the fore-head and there was bleeding from the injuries caused by Nathuram. The accused Prem also threatened that in case, they tried to save the deceased, they will be killed. Hariram expired on spot. PW1 Jagdish and PW2 Shanti ran towards their house and narrated the whole incident to their mother PW8 Maina. She saw the injuries on the left side of the forehead of Jagdish. She admitted in her statement during trial that the blood-stained shirt and payjama of PW1 Jagdish were taken into custody. They were sealed and sent for chemical examination to Forensic Science Laboratory. The FSL report further supports the case of prosecution that item No. 11-payjama was stained with human blood. PW1 Jagdish also alleged that his father was beaten by accused Prem with pistol, and by accused Nathu and Mst. Rameti by sickles. While hand-grip frame of the pistol was broken, accused Prem took bricks and gave beating to the deceased. Similarly, when handle of sickle (danti) was broken, the accused Nathu and Mst. Rameti also gave beating with bricks. The broken pistol was recovered at the instance of accused Prem and so also the broken sickle at the instance of accused Nathuram. Two wooden patties were found on the spot. They were also stained with blood. One of them was the hand-grip frame of pistol that was the 'butt' of the pistol and other wooden patti was the broken handle of sickle, which were recovered at the instance of Prem and Nathuram respectively. Thus, these recoveries further corroborate the statement or version of Jagdish (PW1).
12. The version or statement of PW 1 Jagdish is further corroborated by Dr. Sushila Choudhary (PW10), who admits in her statement during trial that at about 4.30 p.m. she medically examined Jagdish (PW1) and found injuries on the left side of the forehead. She prepared the injury report Ex.P/19. The injury was caused with sharp edged weapon. The size of the injury was 1' x 1 1/4' x 1/8'. This has been supported by the Investigating Officer also, who took the injured to the hospital after lodging the F.I.R. This further finds support from the F.I.R., which was lodged by him. In view of this fact, trustworthiness of this witness cannot be doubted. He is consistent in his version, therefore, his testimony cannot be discarded only for the reason that he is a son of the deceased. On the contrary, why he will implicate falsely these accused persons and leave out the real culprits.
13. Learned counsel for the appellants further submitted that the incident took place in the field of the accused-appellants. The body was recovered from that place, therefore, the prosecution story is doubtful. PW1 Jagdish has clarified the facts that when his father Hariram came to his field at about 12 noon, the accused Prem came to him and complained him about Jagdish that he was abusing him. On that, the accused Nathuram and Mst. Rameti also came to his father. Nathuram caught hold of his hands and gave sickle blow at his back. He, however, escaped and ran towards the village. The accused- , appellants chased him. They again caught hold of him after 20-25 steps from that place towards the village near Bordi tree and gave him again sickle blow. He fell down and they continuously beat him with sickle and butt of the pistol, the Investigating Officer has taken controlled soil and blood-stained soil. Two blood-stained wooden patties were also recovered from that place, therefore, it is not the case that the deceased went voluntarily to quarrel with the accused-appellants rather while he was beaten in his field, he escaped and tried to save himself, ran towards the village. The adjacent field was of the accused-appellants. There, they caught hold of him and gave merciless beating, which resulted in this death. This version has also been corroborated by the statement of PW3 Gulab, who is an independent witness. Thus, looking to the statement of PW1 Jagdish and the corroboration of his version with the independent witness PW3 Gulab and other evidence which connect the accused-appellants with the alleged crime. There is no justification to disbelieve or discard the testimony of PW1 Jagdish.
14. Other eye-witness is PW2 Shanti, who was 8 years of age at the time of occurrence. Though the trial court has not believed her statement but looking to her age and situation, in which, she has witnessed the scene of occurrence i.e. killing of her father, she cannot be expected to narrate the whole incident in photogenic way, such as, how many blows are given by whom and on which part of the body of the deceased and from which side of the weapon used. She was eight years of age and the appellants were killing her father beating mercilessly. How one can expect the answers of such questions from her in such a situation, therefore, though the conviction cannot be based only on the sole statement of PW2 Shanti but she cannot be ignored in toto. Her presence at the field is natural, when his brother had gone on field, she can take her break-fast/meals at the field. She witnessed that occurrence and her statement corroborates up to some extent.
15. Third eye-witness is Gulab. He came along with his father Hariram in the field. He fully supports the statement of PW1 Jagdish. Name of Gulab (PW3) also finds place in the F.I.R. PW3 Gulab is an independent witness, who supports the prosecution that while these three accused persons were beating mercilessly with sickles and pistol and bricks near the Bordi tree, PW1 Jagdish tried to save his father. On that, Nathuram accused gave a sickle blow at his left side of the forehead. He sustained the injury and Prem and other accused also threatened them either to run away from this place otherwise, they would be killed. Gulab PW3 is an independent witness and he fully corroborates the statement of PW1 Jagdish.
16. Mst. Rameti was arrested on 12-11-1981. At her instance, blood-stained sickle was recovered. The accused Prem and Nathuram were arrested on 15-11-1981. At the instance of Prem, a broken pistol of 12 Bore blood-stained was recovered. At the instance of accused Nathuram, one broken blood-stained sickle was recovered. The Investigating Officer has recovered 2 wooden patties blood-stained from the spot; one was handle of sickle and other one was broken butt of pistol. They were found stained with human blood, they were seized, sealed and sent for chemical examination. The FSL report reveals that a pair of wooden patties tallied with the hand-grip frame of the pistol Ex.3 and if two patties are placed together, it forms a butt of pistol. The broken handle (Ex.5) belongs to sickle (danti) Ex.P/15, which was recovered at the instance of Nathuram. Thus, parts of the weapons used, were found on the spot and other part was recovered at the instance of the accused i.e. a substantial evidence against the accused-appellants. Thus, these recoveries easily connect these accused persons with the alleged crime.
17. Learned counsel for the appellants further submitted that the recovery - witness PW4 Sohanlal has been declared hostile. There were two recovery witnesses namely, Sohanlal and PW5 Rawataram. In their examination-in-chief, they admit that these articles are recovered from the accused-appellants but in cross-examination, they said that they were standing outside the house and they have not recovered these articles from the accused-appellants. These recovery-witnesses are from the same village. They are not coming with plain truth, and the broken weapons, which were recovered at the instance of the accused-appellants and broken wooden patties recovered on the spot, is more than sufficient to hold that these weapons are used in the crime by these accused-appellants. No doubt is left in the recovery of the arms used by these accused-appellants.
18. Learned counsel for the accused-appellants next argued that the accused Nathuram sustained three injuries and Prem accused sustained one injury and they have not been explained by the prosecution. The prosecution has not come with clean hand and true facts in this case, therefore, the benefit of doubt should be given to the accused-appellants. We do not agree with the submission of the learned counsel for the appellants for the reason that if we read the injury report along with his statement, it appears that the injured Nathuram and Prem were examined by Dr. Motiram and he found the injuries sustained by these accused-appellants namely, Nathuram and Prem were of 7-10 days prior to the said occurrence, and they were examined on 15-11-1981. Thus, this confirms the presence of the accused persons during the incident. Again, if we look into the injury report, the accused Nathuram sustained 3 simple injuries; one is on the right little finger, second is on the right thumb and third is on the left fore-arm. The prosecution case is that while Nathuram giving sickle blow on the head of the deceased that sickle was broken and he took up bricks and started hitting with bricks at his head. In that process, it is possible that he might have sustained these simple injuries. In the case of Prem, he sustained one fresh scar when they caused more than 12 injuries on his head with pistol, sickles, bricks and all at a time it is possible that, in that process, he sustained there injuries. Thus these injuries support the case of prosecution rather the defence of the accused-appellants.
19. The next submission of the learned counsel for the accused-appellants was that there is no motive behind the murder. The prosecution has come only with the motive in this case that the accused Prem was complaining before the incident to the deceased that his son has abused them, that cannot be a motive for murder. If Jagdish has abused these appellants, they could beat him as he was alone in the field but they have not beaten him rather killed Hariram, father of Jagdish (PW1), that creates a grave doubt in the prosecution story. To prove the motive in all cases, is not necessary but that is, of course, an important aspect to be looked into. It is true that accused Prem had complained the deceased that his son has abused them but that was not only reason and grievance of the accused-appellants against Hariram but a long standing enmity on account of the dispute over agricultural land, which was just settled before 2-3 months prior to this incident and finally that land was given to the deceased Hariram by the Panchayat. The accused-appellants might not be happy with this settlement. The case of the prosecution further finds support from Ex.P/18 post-mortem report, Dr. Sushila Choudhary (PW10), who conducted the postmortem examination, found 12 injuries on the per son of the deceased.Injuries Nos. 1,2, 3, 5, 6, 7, 8, 9 and 12 were caused by blunt weapon and injuries Nos. 4, 10 and 11 were of by some sharp weapon. This also supports! the prosecution case to the extent that the injuries found on the person of the deceased can be caused by weapon, which has been used by these accused-appellants, i.e. bricks, sickles, and pistol butt. In the opinion of the doctor, the cause of death was shock due to brain damage and haemorrhage.
20. Now, the next question arises for our consideration is whether the accused-appellants are liable for the punishment under Section 302/34, IPC or Section 304, Part I, IPC. Learned counsel for the appellants alternatively submitted that the case does not travel beyond Section 304, Part II, IPC as the incident took place without pre-meditation. The accused-appellants were busy with harvesting and cultivation. They had no specific arm with them. The occurrence suddenly took place as the son of the deceased abused him just before it. In such cases, they are liable for the punishment under Section 304, Part II, IPC. They were convicted for the offence under Section 304, Part I, IPC. Nathuram and Prem have already been served the sentence. Not only that, after such a long time, even if, they are found guilty for the offence under Section 302, IPC they should not be sent back to the jail.
21. Whether the accused-appellants should be convicted under Section 302, IPC or under Section 304, IPC, we would like to refer the views of this Court and their Lordships of the Supreme Court on this question.
22. In Tulsiram v. State of Rajasthan, 1985 R Cr C 19, in para 14, this Court has considered almost similar facts and held that the offence made out is, therefore, falls within the ambit of Section 302, IPC. The relevant portion runs as under : -
'In the instant case, the accused inflicted as many as 11 injuries with a heavy and hard stone on the head of the deceased victim. It is pertinent to note that all the injuries to the victim were caused on her skull. It is in the knowledge of every body that the head is a delicate and vulnerable part of the human body. The injuries resulted in as much as four fractures of skull bones. Thus, the head was broken as a coconut. It is not the case of single blow. Here is the case of repetition of blows. The accused continued to hit the head of the victim with a heavy and hard stone till she was dead. The case is, therefore, covered by first two clauses of Section 300, IPC. He hit the victim with the intention of causing her death. Further he hit her atleast with the intention of causing such bodily injuries as he knew to be likely to cause the death of Mst. Narayani. The case directly attracts the applicability of first two clauses of Section 300, IPC. The offence made out is, therefore, falls within the ambit of Section 302, IPC.'
23. In Prabhu v. State of M.P., 1991 Cri LJ 1373 (SC): (AIR 1991 SC 1069), in para 2, their Lordships observed as under (at page 1373; of Cri LJ) :-
'The High Court also came to the conclusion that they beat him to death. Both the courts have come to the conclusion that having regard to the number of injuries inflicted on the deceased it was not possible to uphold the contention that there was no intention to kill.'
On the basis of the facts of the case, their Lordships upheld the conviction under Section 302, IPC.
24. For bringing the offence within the four corners of Section 304, Part II, IPC, four tests are applied : -
1. It was a sudden fight.
2. There was no pre-meditation.
3. The act was done in the heat of passion.
4. Assailants had not taken advantage or acted in any cruel manner.
25. The main argument on this issue of learned counsel for the appellants Shri Bhagwati Prasad was that Nathuram and Mst. Rameti were armed with sickles and Prem with pistol but he did not use it and it shows that they had no intention to commit murder of the deceased Hariram. The first question arises for consideration is whether the pistol was in workable condition or not. It has not been clarified during trial. Apart from it, we cannot ignore the fact that the deceased was beaten mercilessly by the three assailants and hit only on the vital parts i.e. head. It was broken into pieces. The injuries, which are found during post-mortem are as under :-
1. Lacerated wound - 2 1/2' x 3/4' x 1/2' on the left side of fore-head start from upper border of left eye-brow. Transvers to face.
2. Lacerated wound - 3' x 1/2' x 1/4' on the left side of face, starts from left eye lateral angle. Transvers to face.
3. Lacerated wound-1/2' x 1/2' x 1/2' on the upper lip start from nose. Upper lip lacerated and three frontal teeth fallen due to injury.
4. Incised wound - 1' x y4' x %' on chin. Transvers to face. All teeth are mobile due to injury and transvers fracture of mandible present.
5. Lacerated wound - 3' x 1' x bone-deep on occipital region 6' above right mastoid process, longitudinal to scalp.
6. Lacerated wound - 5' x 11/2' x bone-deep. On scalp 7' above left mastoid process. Brain matter earring out from the wound. Transvers.
7. Lacerated wound- 1 1/2' x 1/2' x bone-deep on occipital region 5' above left mastoid process. Transvers to scalp.
8. Lacerated wound - 1' x 1/2' x bone-deep on right side of scalp 3' above right mastoid process. Transvers to scalp.
9. Contusion - 3' x 3' redish in colour on right side of scalp 5' above right mastoid process on parietal region.
10. Incised wound - 1 1/2' x 1' bone-deep on scalp 4W' above root of nose, brain matter coming out from this wound. Longitudinal to scalp.
11. Incised wound - 1' x 1/2' x bone-deep on scalp frontal bone 3W above left eye-brow brain matter coming out from the wound. Transvers to scalp.
12. Abrasion - 1' x 1' on right knee joint present.
26. Assuming that first three tests are satisfied but after seeing the injuries, how it can be said that fourth test i.e. assailants had not taken advantage or acted in any cruel manner in this case. Admittedly, Hariram was armless, while the assailants Nathuram and Mst. Rameti were armed with sickles and Prem was armed with pistol. They have given beating mercilessly till the deceased died on the spot while the sickle of Nathuram was broken, he took out bricks and continuously hit him with bricks putting one brick under his head, so is the case of Prem, while he gave a pistol blow so forcefully with the butt side of the pistol on the head of the deceased, that the butt of the pistol was broken. He also took out a brick and gave him brick blow. The skull was pressed transversally by which the brain matter come out. There were so many fractures in the skull bone and pieces of skull bone mixed with brain matter. The fractures noticed during post-mortem were as follows : -
1. Transvers fractures at mandible present.
2. There is fracture of right side of frontal parietal, temporal bone in several pieces and pieces mixed with brain matter.
3. There is fracture at left side of frontal parietal, temporal bone in several pieces and pieces mixed with brain matter.
4. There is radiant fracture at right side of occipital bone skull is pressed transversally. ;
5. Three upper frontal teeth are misplaced due to injury.
27. This is the cruelty, which the appellants had done with the deceased. Considering these facts, in our opinion, the learned trial court has failed to consider 4th clause of Section 300 and wrongly convicted the accused-appellants under Section 304, Part I, IPC. This is clear cut case of Section 302, IPC.
28. Learned counsel for the accused-appellants next submitted that there was no intention to commit murder of deceased Hariram, therefore, there should be no conviction with help of Section 34, IPC. Again, we do not agree with this contentions. Section 34, IPC is attracted when the act is done by several persons in furtherance of common intention. The common intention can be a minute before the incident or at any time before the commission of offence. It depends upon the facts of each case. In this case, while the deceased came along with Gulabai about 12 noon, immediately Prem came to him and complained that his son has abused him. Soon thereafter Nathuram brother of Prem and Mst. Rameti wife of Prem came there and Nathuram caught hold of his hand and gave a sickle blow on his hand. Smt Rameti gave a sickle blow at his back. Hariram escaped and ran away. They chased him and lacerated and three frontal teeth fallen due to injury caught hold of him again after covering 20-25 steps. They again started giving sickle blow on his head and ultimately he fell down. The beating was continued while the handle of sickle of Nathuram was broken in the beating and butt of the pistol of Prem was also broken. Mst. Rameti brought bricks and they started giving blows with bricks on his head mercilessly. He died on the spot. These acts show that they acted in furtherance of the common intention to do him away. They gave blows only on his vital part i.e. head. It was badly broken into several pieces. Hence, in our opinion, it is a clear cut case of common intention of murder punishable under Section 302, read with Section 34, I.P.C.
29. Learned counsel for the appellants next submitted that the offence was committed as back as in the year 1981 and Nathuram and Prem have served their sentence awarded to them by the trial court and no useful purpose will be served in sending them in jail again. He relied upon the decision of this Court in Sunder v. State (1982 R Cr C 80). It is true that if the offence is petty and it was committed long back, in that case, no purpose is served in sending the accused in custody after lapse of long time but in the case in hand, the offence was committed in November, 1981. The accused-appellants have been convicted under Section 304, Part I, IPC and sentenced them to undergo 10 years' R.I. It cannot be said that they were out of prison for a long time, which would affect adversely in their improvement and rehabilitation in the society. In such a heinous crime, there is no justification to let them go free on the ground that they are out of custody for a long period.
30. Learned counsel for the appellants lastly submitted that when the trial court has taken a reasonable and possible view that should not be interfered with in appeal. We agree that a reasonable view taken by the trial court, should not be interfered with but that view should be reasonable one. Considering the decision of their Lordships of the Supreme Court in Prabhu v. State of M.P. (supra) and the view taken by this Court in the case of Tulsiram (supra), it cannot be said to be reasonable one. The Trial Court itself should have convicted the accused under Section 302, IPC instead of Section 304, Part I, IPC.
31. In the result, the appeal of the accused-appellants is dismissed while the appeal of the State is allowed. The conviction under Section 304, Part I, read with Section 34, I.P.C. is set aside. We convict all the three accused-appellants, namely Prem, Mst. Rameti and Nathuram under Section 302 read with Section 34,I.P.C. and sentence each of them to undergo life imprisonment. We confirm the conviction and sentence of the accused-appellant Nathuram under Sections 324 and 447, I.P.C. and also confirm the conviction and sentence of accused-appellants Prem and Mst. Rameti under Section 324 read with Sections 34 and 447, I.P.C. All the sentences of imprisonment of all the three accused-appellants will run concurrently.
32. The accused-appellants are not present today. As such, warrants will be issued against them for serving out the remaining sentences.