J.P. Jain, J.
1. Fakir Chand son of Ramrakh Jat was found murdered in the Khaliyan of Buddha Nayak in village 'Dhani' on 22-11-68. In this connection two sons of Buddha, Juglal and Mansingh were tried by the Additional Sessions Judge, Churu and were found responsible for causing the murder of Fakir Chand They were convicted for an offence under Section 302 IPC and sentenced to imprisonment for life. Both the convicts have challenged their conviction in this appeal.
2. Arjun (PW1) was grazing his herd of she-goats in the nearby field on that day. Sometime before duck he heard a cry from the Khaliyan of Buddha. He saw Juglal and Mansingh inflicting blows by 'Khotan' to Fakir Chand. He went near the field of Buddha but he was threatened by the accused to dire consequences and as such he did not dare go to the place of occurrence. He, however, went to the village and met Mukhram (PW 2) at his house. Bhera Ram (PW 3) was also sitting with Mukhram. Arjun informed them about the incident and stated that Jugal and Mansing s/o Buddha have murdered Fakir Chand, Bhera Ram collected a few more persons including Sheraram (PW 4) brother of the deceased and they proceeded to the place of occurrence. They found the dead body of Fakir Chand covered by a blanket. Bhera Ram then accompanied by Mukhram went to Sidhmukl Railway Station where the police out post is also situated. He informed the head constable Deepa Ram but as the report could not be lodged in the out post they proceeded to Rajgarh. According to the prosecution, Deepa Ram also accompanied them. At 7.30 a.m, on 23-11-1968 the first information report was lodged at the police station Rajgarh. It is Ex P/1. It was also mentioned in the F.I.R. by Bhera Ram that some four or 5 days prior to the date of occurrence Fakir Chand tried to misbehave with the wife of Juglal and on that account Buddha, the father of Juglal reprimanded the deceased Fakir Chand. A case was registered under Section 302 I PC. and Shri Ram Lal, Station House officer, (PW6) proceeded to the place of occurrence and he took with him the medical officer, Dr. Shiv Narain Vyas (PW.7) for conducting the post mortem examination. According to the prosecution they reached the place of occurrence at 11.40 a.m. on 23-11-1968, The S.H.O. started the investigation. He recorded the description of the dead body and the said memo is Ex.P/2. He also collected blood stained earth and the blood stained clothes from the body of the deceased vide Ex P/3 and Ex.P/4. site plan Ex P/5 was also prepared and the description of the site plan was recorded in Ex P.10 The Medical Officer did the autopsy of the dead body of Fakir Chand and the post mortem report prepared by him is Ex.P/15. According to this report Fakirchand was found to have sustained the following four injuries:
(1) contused wound with fracture 3' x 3/4' x 3/4' scalp left parietal bone with fracture of the underlying bone and laceration of the muscles and brain.
(2) contused wound with, fracture; 2' x ' x ' lateral side of injury No. 1 with fracture of the left parietal bone.
(3) Fracture; both bones of the right leg lower one third.
(4) Contused wound with fracture 2' x' x ' left leg lower one third with fracture of the Tabia bone at the side of the injury.
3. All the injuries were grievous and caused by blunt weapon. The dector further opined that injuries Nos. 1 and 2 were dangerous to life. According to him the deceased died due to injury to the brain resulting from injuries Nos. 1 and 2. The accused persons were arrested on the same day While on custody both the accused by disclosure memos Ex.P/11 and Ex.P/12 informed the investigating officer about the 'Khotan' which they used as the weapon of offence and the place where they were concealed. This information led to the recovery of the two 'Khotans' used by the accused persons in inflicting belows to Fakir Chand from, one heap of the fodder in the Khaliyan of Buddha The 'Khotan' used by Juglal was seized by recovery memo Ex P/8 and that of Mansingh is Ex.P/7. The blood stained earth, the blood stained clothes of the deceased & the scrapping of the blood found on the 'Khotans' were sent for chemical examination. According to the report of the Chemical Examiner Ex. P. 13, all these articles were found positive for blood. These articles were passed on to the Serologist for examination. According to the report of Serologist Ex.P/14 the blood stained earth and the blood stained clothes were found to be positive for human blood but as regards the blood found on the scrappings from the 'Khotans', the serologist reported that the origin of the blood could not be determined on account of the disintegration. After the investigation was completed the two appellants were challenged in the court of Sub-Divisional Magistrate, Rajgarh, who did the preliminary inquiry and committed both the accused to the court of Sessions to stand their trial under Section 302 I.P.C. The accused denied their guilt and claimed trial. On behalf of the prosecution (PW 1) Arjun has been examined as an eye witness of the incident. Mukhram ana Bhera Ram, who had gone to the police station to lodge the first information report have been examined as PW.3. There has also been examined as PW.2 and PW.5. Shera has also been examined as PW.4. The investigating Officer Ram Lal has been cited as PW, 6 to prove the necessary memos prepared by him. Dr. Vyas as PW.7 proved the post mortem report Ex.P.15. On behalf of the defence five witnesses have been examined. The learned trial Judge found both the accused guilty under Section 302 I.P.C. and sentenced them as aforesaid.
4. Mr. Jodha learned Counsel appearing on behalf of the appellants has contended that the trial Judge was not right in placing reliance on the sole testimony of (PW.1) Arjun. He has criticised the statement of Arjun on various grounds. Another important contention that he has raised on behalf of the appellants is that the first information report was a concocted affair. He has based this argument on the statement of Bhera Ram (PW 3), in which the witness stated that he started from Sidhmukh at 10 a.m. on 23-11-1968 for Rajgarh. According to the learned Counsel, if Bhera Ram had started of 10 a.m. it was not possible for him to have lodged the report at 7.30 a.m. or the day. A submission in this regard was also made before the learned trial Judge, but it was repelled. It is true that this witness has stated in cross-examination that he started for Rajgarh at 10 a.m. suggesting the day following the incident. It has also come in evidence that there are two trains leaving Sidhmukh railway station for Rajgarh; one at 4 p.m. and the other at 11.00 in the night. Ram Lal (PW.6) Station House Officer clearly stated that he reached the place of occurrence at 11.40 a.m and he actually started his investigation from that time. According to Dr. Shiv Narain Vyas he started the post mortem examination itself after they reached the place of occurrence. The post mortem report also mentions 11.40 a.m. as the time when the doctor commenced the autopsy of the dead body. This lends complete assurance to the statement of the investigating officer that he reached the place of occurrence at 11.40 a.m. It appears that libera Ram made a mistake in giving the time of his starting for Rajgarh as 10 a.m That apart, Shri Ram Lal also stated that Deepa Ram Head Constable of police out post Sidhmukh had also come to Rajgarh on the night intervening 22nd and 23rd. Deepa Ram of course has not been produced by the prosecution. But according to the investigating officer he brought Deepa Ram with him from Rajgarh when he started to the place of occurrence to help him in the investigation of the case. Deeparam is one of signatories on the inquest report and the recovery memos. After having considered the evidence on record we are of the opinion that Bhera Ram and Mukhram accompanied by Deeparam started by 11 O' clock train in the night of 22-11-68 for Rajgarh and lodged the report early morning of the 23rd. If the time given in the statement of Bheraram had been correct it would not have been possible for the investigating Officer and the medical officer to reach the place of occurrence at 11.40 a.m. the distance being 32 miles. We, therefore, reject this submission as of no consequence.
5. In the alternative an argument has been made by Mr. Jodha that if Bhera Ram and Mukhram had left Sidhmukh railway station by 11.00 O' clock train they must have reached Rajgarh within one hour and there was no reason why the first information report could not be lodged soon after they reached Rajgarh. This is no doubt true that there is no explanation as to why the report was not lodged soon after Bhera Ram reached Rajgarh. However, we are of the opinion that this circumstance is not enough to throw out the prosecution case. The report was made early in the morning and the Station House Officer after registering the case soon started for investigation at 8.05 a.m.
6. Another contention raised on behalf of the appellants is that it was not possible for Arjun to have seen the assailants inflicing blows by 'Khotans' to the deceased from a distance of 100 to 150 pavandes and particularly when the time was about sun-set. From the evidence it is clearly borne out that it was not actually sun-set and there was sufficient light for one to be able to see from a distance of about 700'. On behalf of the defence Matoo (DW.2) has been produced to prove that there was a sand dune between the field of Jiwan Jagriya and the Khaliyan of Buddha Nayak where the incident had taken place. According to the witness even a man sitting on the camel's back could not see any one in the Khaliyan of Buddha No cross examination was directed in this regard either to Arjun (PW.I) or the investigating officer (PW.6). According to the site plan prepared by the investigating officer, the field of Jiwan Jagirya adjoins the field of Buddha. The witness stated that on hearing hue and cry from the Khaliyan of Buddha he went towards the place of occurrence but he was threatend by the assailants and he proceeded to the village to inform the people there. In view of the evidence placed on behalf of the prosecution and in the absence of cross examination in this regard on the part of the defence it is not possible for us to believe the defence theory that there was a sand-dune between Arjun and the place of occurrence on account of which it was not possible for him to have seen the incident.
7. Another submission on behalf of the appellant is that the witness was inimical to the accused. In this behalf Jai Karan (DW 5) has been produced According to the witness it appears that there was no direct enmity between Arjun and the accused. The witness stated that Kishan Lal brother-in-law of Arjun stole some she-goats of Buddha and a case was instituted against Kishan Lal and in that case Jai Karan appeared as a witness on behalf of the prosecution. He has not been able to state the result of that case. He, however, admitted that this happened in the year 1951. It is difficult to believe that Arjun will harbour any feeling of ill-will against the accused persons on that account and that too after such a long time.
8. A discrepancy has been pointed out in the statement of Arjun and that of Mukhram (PW2.) Learned Counsel for the appellant contended that according to Arjun be was threatened by the accused when he wanted to go to the place of incident. This fact, according to him, was not stated by Mukhram (PW 2) and also in the F.I.R. Is may be noticed here that Bhera Rum (PW 3) clearly stated at the trial that when Arjun wanted to go near the place of incident he was threatened and as such he could not reach the place of occurrence. Non- mention of this fact in the first information report or by Mukhram (PW2) does not go to show that Arjun was telling a lie. According to Bhera Ram (P.W.3) this fact was brought to the notice of Mukhram and Bhera Ram and if it was not mentioned in the first information report it was no fault of Arjun. The first information report has not been lodged by the eye witness. As such no captial can be made out of this omission and we are not prepared to hold that this is a contradiction or omission of any importance. Learned trial judge has found the statement of Arjun (P.W.1) as truthful. His statement stands fully corroborated by the testimony of Mukhram (P.W.2) and Bhera Ram Ram (P.W.3), After having scrutinised the evidence of these three witnesses we are of the opinion that the trial Judge was right in placing reliance on the statement of Arjun (P.W.1).
9. The learned trial Judge found that there was no clear evidence of motive. It is true that the motive as indicated in the first information report was that deceased Fakir Chand tried to misbehave with the wife of Juglal but the author of the first information report at the trial stated differently. There he said that it was Mansingh's wife who was said to be molested by Fakirchand. Shera (P.W. 4) stated that it was Juglal's wife whom the deceased tried to misbehave with. Mukhram (P.W.2) was silent. We, therefore, agree with the view taken by the learned trial Judge that there is no evidence of motive and it cannot be said that there was any enmity between the accused persons on the one hand and Fakirchand on the other.
10. The recovery of 'Khotan' has not been relied upon by the learned trial Judge, we find no fault in that finding.
11. The learned trial Judge convicted both the accused persons under Section 302 I.P.C. After he discussed the evidence, he observed;
Offence has been proved against both the accused beyond all reasonable doubt Now remains the question of sentence. There is no evidence as to who gave the fatal blow. There is no clear evidence of motive but if the F.I.R. be taken to be true the accused had reason to feel aggrieved with Fakirchand who is alleged to have teased the wife of accused Juglal.
12. The learned Judge did not address himself to the question as to what offence was committed by the accused persons in the circumstances of the case. He rather held that there was no evidence who gave the fatal blow. On this premise learned Counsel for the appellant has argued that the conviction of the appellants under Section 302 is not tenable Arjun has not been able to tell the court as to which injury was cansed by which accused and who was responsible for the fatal blows which caused injury No. 1&2 causing the fractures of the skull. In this view of the matter we are disposed to think that the conviction under Section 30 simplicitor is not correct, as both the accused could not have been convicted for murder of Fakir Chand unless Section 34 I.P.C. could be pressed in service.
13. The question then arises, if Section 34 is applicable. At this stage it will be apt to extract Section 34 of the Indian Penal Code:
Section 34. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
14. According to this section the act must be done in furtherance of the common intention Common intention necesserily implies the prearranged plan. In other words there must be a prior meeting of the minds of the criminals, & a plan formed among them to perpetrate a particular crime. It is, however, not necessary that there may be any long gap of time, in fact, any gap of time between the formation of common intention and the actual execution thereof. Common intention may develop suddenly and on the spot. Thus the existence of common intention between the participants of the crime is essential element of this section, and in the absence of such common intention this section will not apply. The question of common intention under this section is one of fact to be determined in the circumstances of each case. Normally direct proof of common intention is not possible and it is rather difficult to get and such intention can only be inferred from the surrounding circumstances including the act and the subsequent conduct of the accused. But the common intention must be the necessary inference from the circumstances proved in the case. In the present case the eye witness Arjun (PW 1) only tells the court that he saw with his own eyes that Juglal and Mansing were giving blows to Fakirchand, by 'Khotan'. He further explained that 'khotan' is a danda of wood used for thrashing the grain. The place of incident was not admittedly the field of Fakirchand. We are not aware as to how Fakirchand reached the place of occurrence. Whether he reached there of his own accord or he was called by the accused persons. We can not find out from the evidence as to what tran pired before the accused persons started inflicting blows to Fakir Chand. We have already found as a fact that there was no enmity proved between the accused persons on the one hand and Fakirchand on the other. According to the medical evidence Fakir Chand sustained four injuries. All of them were grievous but the first two injuries being fractures of the skull, were dangerous and were responsible for his death. We do not know whether the head injuries were caused by both the accused or only by one. We are unable to say with certainty that both the accused jointly attacked with a common intention of murdering. Fakir Chand. In this view of the matter it is difficult to infer that the two accused were acting in furtherance of the common intention of committing murder.
15. Here reference may be made to Mahbub Shah v. Emperor AIR 1945 PC 118. (1) AIR 1945 PC 118 In that case Ghulam Quasim Shah and Mahbub Shah were tried for causing the murder of Allah Dad and tor attempting to commit murder of Hamidullah Khan. One Wall Shah was also said to have participated in the crime and was responsible for firing the shot that killed Allah Dad but he absconded and could not be arrested. Two victims in the case had collected 16 bundles of reeds from the field of Mahmud Shah uncle of Ghulam Quasim Shah. There was a scuffle between Ghulam Quasim Shah and the two victims Allah Dad & Haminullah Khan. Allah Dad picked up the stick (propeller of the boat) and struck Ghulam Quasim Shah. He shouted for help. At that stage Mahbub Shah and Wali Shah came on the scene with their guns and they fired. Wali Shah's gun fired at Allah Dad and the latter was killed lastanteously. The gun fire of Mahbub Shah caused serious injury to Hamidullah Khan. Gulam Quasim Shah was convicted under Section 302 read with Section 34 IPC and under Section 307 read with Section 34 IPC; whereas Mahbub Shah was convicted under Section 302 read with Section 34 IPC and under Section 307 IPC. In appeal the High Court set aside the conviction of Ghulam Quasim Shah on the ground that there could be no common intention so far he was concerned as he was the man in trouble and called for the help. He never asked his companions to kill the deceased Allah Dad and Hamidullah Khan. However, as regards Mahbub Shah his conviction under Section 302 read with Section 35 IPC and under Section 307 IPC was maintained. Mahbub Shah approached the Privy Council by special leave. He did not challenge his conviction under Section 307 IPC but it was argued on his behalf that the conviction under Section 302 read with Section 34 IPC was not tenable and thus the question arose before their Lordships for consideration as to the scope and effect of Section 34 IPC. Their Lordships observed:
To invoke the aid of Section 34 successfully it must be shown that the criminal act complained against was done by one of accused persons in furtherance of the the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner, as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case.
16. In the case before the Privy Council though it was found that the accused Mahbub Shah and Wali Shaharam to the assistance of Gulam Quasim Shah and they fired simultaneously in the direction of the complainant killing Allah Dad on the spot and causing injuries on the person of Hamidullah, their Lordships held that there were no circumstance from which it could be inferred that the appellant Mahbub Shah must have been acting in concert with Wali Shah in pursuance of a concerted plan when alongwith him ran to the rescue of Ghulam Quasim Shah. Their Lordships further observed that evidence falls far short of showing that the appellant and Wali Shah ever entered into a premeditated concert to bring about the murder of Allah Dad in carrying out their intention to rescue Quasim Shah. Their Lordships sounded a note of caution that care must be taken not to confuse same or similar intention with common intention; the partition which divides 'their bounds' is often very thin; nevertheless the distinction is real and substantial, and if Overlooked will result in miscarriage of justice. In their Lordships' view the Inference of common intention within the meaning of the term of Section 34 should never be reached unless it is necessary inference deducible from the circumstances of the case.
17. This principle has been reiterated with approval by their Lordships of the Supreme Court. Reference may be made to the following cases--Panduran and Ors v. State of Hyderabad AIR 1956 SC 216, Ram Tahal and Ors. v. State of U.P. : 1972CriLJ227 , Garib Singh and Ors. v. State of Punjab : 1972CriLJ1286 , Shri Kishan and Ors. v. State of U.P. : 1972CriLJ1313 , and State of U.P. v. Iftikhar Khan and Ors. : 1973CriLJ636 .
18 Their Lordships in all these cases held that a common intention should be anterior in time to the commission of the crime showing a prearranged plan and prior concert, and though it is difficult in most cases to prove the intention of an individual; it has to be inferred from the act of conduct or other relevant circumstances of the case. The totality of the circumstance must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. The pre-arranged plan may develop on the spot during the course of the commission of the offence, but the crucial circumstance is that the said plan must precede the act constituting the offence. The court must come to a definite conclusion that the accused had a prior concert with one or more person named or unnamed for committing the offence.
19. In Gharib Singh's case their Lordships observed that the aid of Section 34 IPC can be taken to maintain the conviction even though no charge was framed for it provided the evidence establishing it has been clear and free from doubt.
20. In the instant case learned Counsel for the State placed reliance on two circumstances, one is that the accused persons threatened the witness that if he would come near the place of occurrence, he would be dealt with seriously and the fact that the accused persons had enmity with the deceased. We have already recorded that the enmity between the accused and the deceased has not been established. So far the threat of concerned, in our opinion, it is no circumstance to prove that two accused persons had a pre-arranged plan for commiting the murder of Fakirchand, As a matter of fact we are not even aware as to whether both the accused were there from the beginning or only one of them was there and the second joined later. There is not an idea of evidence to establish that there was a meeting of minds of both the accused & they acted in furtherance of the common intention and that common intention was to kill Fakir Chand.
21. Mr. Singhvi, has however, placed reliance on Ganpat and Ors. v. The State ILR (1951) 1 Raj 278. The fact of that case are distinguishable. In that case four appellants had come together to give beating to the victim and it was also proved that there was enmity between assailants and the victim Another case is Rishideo Pande v. State of Uttar Pradesh : 1955CriLJ873 In this case the appellant was convicted under Section 302 read with Section 34 IPC by the trial Judge, and there were as many as six circumstances relied upon which undisputably proved in the case. As pointed out above in the present case there is no evidence except that Arjun (PW 1), saw the two accused inflicting blows on the person of Fakirchand. In our opinion the Supreme Court case has no relevancy. The Privy Council case of Masaud and Ors. v. Emperor AIR 1946 PC 45 was also referred to on behalf of the state. The accused X, Y and Z were convicted of murder of one N. The story of the eye witnesses A, B, and C was that they saw Y and Z beating with sticks N, and saw X grappling with G. Before the witnesses reached the spot, X, Y and Z ran away together. B said that Y and Z got X released from G. There was also other evidence on record that X had strong grounds for entertaining feelings of enmity against N,--grounds based on relations of X and N with a girl named Fatima; that Y was younger brother of X, that Z was their tenant, and that X, Y and Z lived at the dera of X. There was no evidence of enmity between G and N. The point was whether there was evidence to justify conviction of X under Section 302/34, Penal Code. Their Lordships held that the murder was committed in furtherance of the common intention of all the accused.
22. Having regard to all the decisions referred to above we are clearly of the opinion that from the material available on record we are not able to raise an irresistible inference that Juglal and Mansing were acting in furtherance of the common intention to commit the murder of Fakirchand.
23. We have held above that the conviction of the appellants under Section 302 cannot be maintained as it was not possible for the trial judge or for ourselves to find out as to which accused inflicted the fatal injuries, We have also found that we are unable to take the help of Section 34 in the facts and circumstances of the present case. All the injuries are grievous and according to the evidence of Arjun (PW 1) both the accused inflicted blows and we have no other option but to convict the appellants under Section 325 IPC. Juglal was 18 years of age and Mansingh was 15 years old on the day the trial court decided the case and convicted them under Section 302 IPC. We set aside their conviction and sentence under Section 302, IPC and we convict them under Section 325 IPC. The maximum punishment awardable is seven years as such they are entitled to the benefit of the provisions of Section. 6 of the Probation of Offenders Act. The appellants are on bail. Having regard to the circumstances of the case, the nature of the offence and the character of the offender it will be expedient to release them on probation of good conduct and instead of sentencing them atonce we direct that each of them shall enter into personal bonds in the sum of Rs. 5,000/- with one surety in the like amount, and they shall keep peace and be of good behaviour for a period of two years, The bonds shall be furnished within one month from today to the satisfaction of Additional Sessions Judge, Churu.
24. The appeal is partly allowed as indicated above.
25. Learned Counsel for the State prays for leave to appeal to Supreme Court. The case has been decided largely on the appreciation of evidence. We do not think it to be a fit case for certification under Article 134(1)(c) of the Constitution. The prayer is rejected.