Judgment:
Amaresh Ku. Singh, J.
1. Since both the appeals arise out of the same judgment, therefore, it is just and proper to decide both the appeals together.
2. Heard learned Public Prosecutor for the State and the learned Counsel for the accused who are respondents in the State Appeal No. 458/1978 and appellants in the Appeal No. 409/1978.
3. At the out-set, it is pertinent to note that vide order dated 14.12.1978 leave to appeal was granted to the State only in respect of acquittal of Gulab Singh, Nimba and Roop Singh for the offence of murder. The leave sought against the other accused respondents was refused. Accused respondent Sona has died during the trial of the case and, therefore, the question of granting leave in his case did not arise.
4. After conclusion of the arguments learned Counsel for the accused appellant-respondent Nimba Ram submitted an application on 23.7.1996 alongwith the report of Sarpanch, Gram Panchayat, Naya Chainpura Panchayat Samiti, Bhinmal District Jalore and an affidavit of Gulab Singh which show that the accused appellant- respondent Nimba Ram has died. His death occurred about 10-12 years ago. The learned Public Prosecutor has not controverted this fact. Therefore, the State appeal No. 458/1978 abates against Nimba Ram. The other appeal filed on behalf of Nimba & other cannot abate because the sentence of fine was also imposed on him.
5. The facts of the case so far as they are relevant for the disposal of these appeals may be summarised as below: On 23.7.1977 Smt. Lachhi wife of Sona resident of Chainpura Nayawalal submitted a report in writing at the Police Station Bagoda. According to that report on 23.7.1977 at about 7 A.M. Smt. Lachhi's son Chela has started from the house with his animals for going towards Magrawala Badiya. At that time Lacchi herself was going towards Magrawal Badiya with a pitcher of water. When Chela reached the Oran, Gulab Singh, Roop Singh, Sona, Nimba S/o Sona, Jhutha son of Rata and Karinga son of Rata who were hidden behind the bushes and were armed with lathis and axes came out side and they collectively attacked Chela. Gulab Singh at that time said that the enemy has come and let us finish him and all the accused persons started inflicting lathi and axe blows on the body of Chela. Consequently his both hands and right leg were fractured and blood came out of his wounds inflicted on his body. When Smt. Lachhi and Chela raised an alarm Bheekha, Bhabuta and Rama rushed towards the place of occurrence and they tried to protect Chela who was being beaten by the assailants. Bhabuta and Rama also received injuries at the hands of the assailants. Thereafter believing that Chela had died the assailants went away. When Chela was being taken to Bagoda for treatment he breathed his last in the way and, therefore at the time of lodging of the first information report his dead body was also produced at the Police Station. On the basis of the report lodged by Smt. Lachhi the police registered a case under Sections 302, 147, 148, 149 and 323 I.P.C. and started the investigation. After investigation a report under Section 173 Cr.P.C. was submitted in the Court of learned Munsif and Judicial Magistrate, Bhinmal who committed the case to the Court of Sessions Judge, Jalore. Six persons, namely, Gulab Singh son of Vagatsingh, Nimba son of Sona, Roop Singh son of Vagatsingh, Sona son of Hukma, Karinga son of Rata and Jhutha son of Rata were charged under Sections 147, 148, 302 read with Section 149 and 323 I.P.C. They pleaded not guilty to the charges and the prosecution evidence was recorded. During the trial accused Sona expired, therefore, the proceedings against him were dropped and the trial continued against the remaining five accused persons.
6. The prosecution examined Hadwantsingh, P.W.I, Dharma Shanker P.W.2, Jumma P.W.3, Durg Singh P.W.4, Dr. Sumer Singh P.W.5, Mohanlal P.W.6, Bhabutaram P.W.7, Lachhi P.W.8, Rama P.W. 9, Bheekha P.W. 10, Poonamchand P.W. 11 and Balwataram P.W. 12, in support of the prosecution story. The accused persons were examined under Section 313 Cr.P.C. Bheema D.W.I, Roopsingh D.W.2 and Garwardan D.W.3 were examined in defence by the accused persons. After hearing the arguments of the parties, the learned Sessions Judge, Jalore came to the conclusion that only 4 persons, namely, Gulab Singh, Roop Singh, Nimba and Sona had taken part in the assault. Therefore, the charges under Sections 147 & 148 I.P.C. were not made out. He, therefore, acquitted Gulab Singh, Nimba, Roop Singh, Karinga and Jhutha of the charges punishable under Sections 147, 148 and 302/149 I.P.C. Accused Karinga and Jhutha were also acquitted of the charge punishable under Section 323 I.P.C. because in the opinion of the learned Sessions Judge, they have not taken any part in inflicting injuries on Chela. Accused Gulab Singh, Nimba and Roop Singh were, however, convicted under Section 304 Part II read with Section 34 I.P.C. and Section 323 I.P.C. and sentences were imposed on them as mentioned above.
7. The learned Public Prosecutor has submitted that the finding of the learned Sessions Judge that only four persons, namely, Gulab Singh, Nimba, Roop Singh and Sona collectively attacked Chela and inflicted injuries on him and that Karinga and Jhutha did riot take any part in the incident is against the law and facts. According to the learned Public Prosecutor the prosecution evidence proves that Karinga and Jhutha also participated in the incident and, therefore, the offence under Sections 147 and 148, I.P.C. is also made out and all the accused persons are, therefore, liable for the death as well as injuries caused to Chela by virtue of Section 149 I.P.C.
8. The difficulty in accepting this argument of the learned Public Prosecutor is that leave to appeal was granted in respect of three accused respondents only and they are Gulab Singh, Nimba and Roop Singh and that leave to appeal was only in respect of acquittal of the aforesaid respondents on charge of murder. Since leave to appeal against acquittal of the 5 accused persons for charge under Sections 147 and 148 I.P.C. was not granted, it is not possible to go into the merit of the contention that Karinga and Jhutha also participated in the alleged incident and that six persons had constituted an unlawful assembly with the common object of causing injuries to Chela. Therefore, the contention that the charge under Sections 147 and 148 I.P.C. has been proved and the respondents are liable for the offence under Section 149 I.P.C. cannot be accepted. The learned Sessions Judge has convicted Gulab Singh, Nimba and Roop Singh under Sections 323 and 304 Part II I.P.C. read with Section 34 I.P.C. on the basis of the finding that these three persons alongwith Sona who died during the trial shared the common intention of attacking Chela attacked him and inflicted injuries in furtherance of their common intention and thereby committed the offences punishable under Sections 323 and 304 Part II read with Section 34 I.P.C. The contention of the learned Public Prosecutor is that the offence of the respondents falls within the four corners of Section 302 I.P.C. and in any case their act is covered by Section 304 Part I, I.P.C. and, therefore, the conviction of the respondents under Section 304 Part II I.P.C. was legally impermissible and, therefore, it deserves to be set aside and the appeal filed by the State deserves to be accepted to that extent.
9. On the other hand, the learned Counsel for the accused respondents has submitted that no offence of murder or culpable homicide not amounting to murder is made out by the evidence produced by the prosecution and at best the offences committed by the respondents are punishable under Sections 323 and 325 I.P.C. and, therefore, the appeal filed by the State deserves to be rejected and the order of conviction as well as sentence passed by the learned Sessions Judge, Jalore under Section 304 Part II I.P.C. deserves to be set aside.
10. The submissions made by the parties make it necessary that the evidence produced by the prosecution and the defence should be considered by this Court for the purpose of finding out as to what offence or offences have been proved beyond all reasonable doubt against the accused respondents.
11. During the trial the prosecution has examined 12 witnesses to support the prosecution case. Out of these 12 witnesses Bhabuta P.W.7, Smt. Lachhi P.W.8, Rama P.W.9 and Bheekha P.W. 10 are the eye-witnesses of the occurrence and Dr. Sumer Singh P.W.5 is the person who conducted the post mortem of the dead body on 23.7.1977.
12. We have carefully gone through the evidence of Bhabuta P.W.7, Smt. Lachhi P.W.8 and Rama P.W.9.
13. Smt. Lachhi P.W.8 is the first informant. According to her the incident occurred early in the morning when she was going to fetch water and her son Chela was going towards his field with animals and in the bushes standing on the Gochar land 7 persons namely, Kheemji, Gulab Singh, Sona, Jhutha, Karinga, Roopji and Nimba were hidden. Kheemji was armed with Dharia, Gulab Singh was armed with a dragger (Chhura), Sona was armed with an axe, Jhutha was armed with axe with long handle, and Karinga, Roopji and Nimba were armed with Dangs and all the 7 persons attacked Chela and inflicted injuries on him. Kheemji inflicted an injury on arm of Chela with Dharia, Gulab Singh inflicted injuries on arm (hands) and Santhal with dragger, Sona inflicted injuries on legs with axe and in consequence Chela fell on the ground and when he was lying on the ground all the accused persons inflicted injuries on him. Smt. Lachhi P.W.8 has added that she raised an alarm and hearing the alarm raised by her Bhabuta rushed to the spot and no sooner Bhabuta reached the spot Roopji, Karinga and Nimba moved towards Bhabuta and inflicted injuries on him with Dangs. At that time Rama who was going with his animals also came to the place of occurrence and he was also beaten by Nimba, Karinga and Roopji with Dangs. Bheekha also tried to come to the place of occurrence but he was chased by the accused persons and he escaped by going to the village. It is also stated by her that Bhomaji and Bhuraji were going on horse back at a distance of 15 to 20 panwadas but they went away to the village and after the incident the accused persons went to village Naya Chainpura. Thereafter Bheekha brought a cart and Chela in an injured condition was placed in the cart and when he was being taken to Bagoda by Bhabuta, Bheekha and Rama Chela died in the way. Thereafter Rama returned to the village and Bhabuta and Bheekha went to Bagoda and from Bagoda the dead body was taken to the Police Station. Smt. Lachhi P.W.8 has said that she reported the matter at the Police Station and she has admitted the contents of the report Ex.P.22.
14. We have gone through the cross-examination of Smt. Lachhi P.W.8 There is nothing in her cross-examination to make her testimony doubtful.
15. Bhabuta P.W.7 is the second important witness who reached the place of occurrence after hearing the alarm raised by Smt. Lachhi P.W. 8. He has deposed that on the date of occurrence early in the morning he went to graze his animals and when he reached out-side the village he heard the hue and cry raised by Chela and he went near Chela and saw that her mother was crying and 7 persons, namely, Kheemji, Sona, Gulab Singh, Jhutha, Keringa, Nimba, and Roop Singh were inflicting injuries on Chela. Kheemji was armed with Dharia, Gulab Singh was armed with Dragger, Sona was armed with an axe, Jhutha was armed with an axe with long handle and Karinga, Nimba and Roopsingh were armed with Dangs. Bhabuta P.W. 8 stated that when these persons were inflicting injuries on Chela her mother was crying and requesting not to beat Chela. But the accused continued to inflict injuries on Chela. Bhabuta has further added that when he asked the accused not to inflict injuries on Chela, Karinga, Nimba and Roopji all the three started inflicting injuries on him with Dangs. Consequently he received injuries on head and ear as well as on his elbow and when he fell on the ground his cousin Rama came to protect him. When Rama came to protect him he was also assaulted by Karinga, Nimba and Roopji and at that time Bheekha was coming towards the place of occurrence but when he saw the injured lying on the ground he saved himself by running towards the village. It is also stated by Bhabuta P.W. 7 that on whole of his body Chela received about 30 injuries and there was profused bleeding from his wounds and when Chela was being taken to Bagoda he died on the way.
16. We have gone through the cross-examination of Bhabuta P.W. 7. There is nothing in his cross-examination which justifies that his statement is not reliable.
17 Rama P.W. 9 is the third eye-witness of the occurrence. He has deposed that on the date of occurrence in the morning Chela went towards the Badia with cows and when Chela was being assaulted in the Badia, he saw that Kheemji, Gulab Singh, Karinga, Nimba, Sona and Jhutha were inflicting injuries on Chela. Kheemji was armed with Dharla, Sona was armed with an axe, Gulab Singh was armed with lathi and dragger, Jhutha was armed with axe with long handle, and Nimba, Roopji and Karinga were armed with lathis. Rama added that on hearing the cries of his mother as well as Chela he rushed towards the spot and asked the accused persons not to beat Chela and then at the instance of Kheemji, Karinga, Gulab Singh and Jhutha started inflicting injuries on him with lathis and at that time Bheekha had also come to the scene of occurrence but on witnessing the beating given by the accused persons he ran away towards the village. It is also stated by him that Chela was being taken to the hospital, he as well as Bheekha and Bhabuta accompanied him but Chela died on the way. Rama P.W.9 has stated that the injuries on leg were inflicted by Sona, Kheemji has inflicted injuries on Chela's hand, Gulab Singh had inflicted injuries with dragger on Santhal, arms and waist and all other accused persons inflicted injuries with lathis and that Chela received 28 to 30 injuries which profusedly bleeding.
18. We have perused the statement of Rama P.W.9. There is nothing in his cross-examination so as to discard his testimony as unreliable.
19. The statement of Dr. Sumer Singh P.W. 5 who conducted the post mortem examination, shows that as many as 28 injuries were found on the body of Chela. They were ante mortem in nature. Injuries No. l, 2, 3, 9 and 10 were caused with a sharp edged weapon whereas the other injuries were caused by blunt weapons. The death was the consequence of shock caused by various injuries. In the opinion of Dr. Sumer Singh P.W. 5 none of the 28 injuries were individually sufficient to cause death in the ordinary course of nature but collectively the injuries were sufficient in the ordinary course of nature to cause death. Dr. Sumer Singh has also proved the injuries of Rama and deposed that 3 simple injuries caused by blunt weapon were found on his body and on medical examination of Bhabuta 2 simple injuries were found on the body of Bhabuta. The testimony of Dr. Sumer Singh P.W. 5 supports the statements of Bhabuta and Rama that they were also beaten by the accused persons while they were trying to protect Chela.
20. The accused respondents in their statements under Section 313 Cr.P.C. denied the occurrence and stated that they have been falsely implicated on account of enmity. Gulab Singh in his statement added that he had lodged a report against Chela in respect of unlicensed possession of a gun and quarreling with the villagers in the state of intoxication and in that case Sona son of Hukma was a witness. It is also stated by Gulab Singh that about 3 years ago he instituted proceedings under Section 107 Cr.P.C. against Rama, Bhabuta and Chela in the Court of Sub- Divisional Magistrate but he could not tell as to what has happened in that case.
21. Bheema D.W. 1 has deposed that about 10 months ago early in the morning when he was going to his house he saw that Chela was being beaten by Sonia and Harisingh. Sonia was armed with Kawadia and Hari Singh was armed with a Dang and at that time Bhura was also going on a horse back. Bheema D.W.I has added that he and Bhura pleaded before Sona and Hari Singh not to beat Chela but they did not listen to them. He as well as Bhura went away. Thereafter Bhura went to the house of Bhabuta and told him that Chela had been beaten by Sona and Hari Singh in the field and after that Bhabuta, his mother and Rama went to the place where Chela was lying. It is also stated by Bheema D.W.I that on the third day of the occurrence he went to the house of Bhabuta then Bhabuta told him that he as well as Rama were also assaulted by Sona and Hari Singh.
22. Garwar Dan D.W.3 has deposed that Sona had only one son whose name is Nimba.
23. Roop Singh D.W.2 has deposed that his date of birth is 2nd March, 1959. He has produced the school certificate Ex.D.12.
24. We have carefully considered the defence version as given by Gulab Singh in his statement under Section 313 Cr:P.C. and the statement of Bheema D.W.I who asserted that he was one of the eye-witnesses of the incident and that in his presence Chela was assaulted by Sona and Hari Singh. In our opinion the statement of Bheema D.W. 1 is not reliable. So far the part taken by Sona is concerned there is no difference between the statement of Bheema D.W. 1 and the statements of the prosecution witnesses, namely Bhabuta P.W.7, Smt. Lachhi P.W. 8 and Rama P.W. 9 because they also alleged that Sona was one of the assailants who inflicted injuries on Chela. So far as Hari Singh is concerned none of the prosecution witnesses has named Hari Singh as one of the assailants. There is no reason for omitting to mention the name of Hari Singh if Hari Singh was one of the assailants. The name of Hari Singh has been introduced for the first time by Bheema D.W.I for reasons best known to him. In our opinion, the evidence of Bheema D.W. 1 is not trust worthy. He has named Sona as one of the assailants because Sona had died during the trial and the name of Hari Singh has been introduced by Bheema D.W. 1 obviously with a view to explain the 28 injuries found on the body of Chela deceased. This witness Bheema D.W. 1 has, thus, tried to give a false explanation of the 28 injuries of Chela deceased. It is pertinent to note that Bheema D.W.I has not given any explanation of the injuries of Bhabuta and Rama who were the eye-witnesses of the occurrence and were beaten by the accused persons when they tried to protect Chela. Bheema D.W. 1 has tried to show that at the time of alleged occurrence Bhabuta Ram and Smt. Lacchi were not present. In our opinion, the entire story given out by Bheema D.W. 1 is an after thought and cleverly concocted to save the respondents from the punishment for the offences which they committed. We, therefore, deem it fit not to place any reliance on the testimony of Bheema D.W.I.
25. The explanation given by Gulab Singh in his statement under Section 313 Cr.P.C. as the enmity between the accused and Chela on account of lodging of the report by him against Chela and others is not sufficient to discard the unimpeachable evidence of Bhabuta P.W.7, Smt. Lachhi P.W. 8 and Rama P.W.9. It may be mentioned here that Chela received as many as 28 injuries, and he has died. These injuries could not be said to be self inflicted. If on account of the lodging of a report by Gulab Singh for unlawful possession of a gun Chela had any grudge against Gulab Singh, that grudge appears to have played no part in infliction of injury on his body and his death. No body on account or any grudge against a person kills himself in the manner in which Chela died. So far as the institution of the proceedings under Section 107 Cr.P.C. in the Court of Sub- Divisional Magistrate are concerned, Gulab Singh has failed to tell as to what happened in those proceedings. We therefore find no force in the submission that on account of the proceedings instituted by Gulab Singh under Section 107 Cr.P.C. Bhabuta and Rama have falsely deposed and concocted false case against Gulab Singh. In consequence the entire defence version fails to persuade us to discard the otherwise reliable evidence of Bhabuta P.W.7, Smt. Lachhi P.W. 8 and Rama P.W.9. Consequently the finding recorded by the learned Sessions Judge, Jalore that Chela was assaulted by the respondents and others must be upheld.
26. The next important question which is to be decided in these appeals as to what offence or offences have been made out against the respondents. Learned Counsel for the accused persons has submitted that none of the injuries found on the dead body of Chela was sufficient in the ordinary course of nature to cause death and the injuries found on his head were simple in nature, according to the testimony of Dr. Sumer Singh P.W. 5. Therefore, the accused persons cannot be convicted under Section 302 I.P.C. or 304 IPC with the aid of Section 34 I.P.C.
27. On the other hand, learned Public Prosecutor has submitted that the act of the accused is covered by Section 300 secondly of the Indian Penal Code and in any case the offence committed by them is punishable under Section 304 Part I I.P.C. because the injuries were collectively sufficient in the ordinary course of nature to cause death, as stated by Dr.Sumer Singh P.W.5.
28. The submission made by the learned Counsel for the accused is based on the presumption that before a man can be held guilty under Section 302 or 304 I.P.C. it must be shown that one or more of the injuries found on the dead body were individually responsible for the death the offence under Section 302 or 304 I.P.C. would not be made out. The crucial question is, therefore, whether the expression 'injury' as used in Sections 299, 300 and 304 I.P.C. includes 'injuries' also. If the expression 'injury' as used in Sections 299, 300 and 304 I.P.C. is so interpreted as to mean a single injury then the submission made by the learned Counsel for the accused will have to be accepted as correct. But if the expression 'injury' as used in Sections 299, 300 and 304 I.P.C. includes 'injuries' also then the submission made by the learned Counsel for the accused appellants will have to be rejected. Under Section 9 I.P.C. 'number' has been defined as below:
9. Number. Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number.
The provisions of Section 9 I.P.C. do apply to the expression 'injury' as used in Sections 299, 300 and 304 I.P.C. which means that the expression 'injury' includes 'injuries' also. It means that for the purpose of Sections 299, 300 and 304 I.P.C. death may be caused by a single injury as well as by two or more injuries and, therefore, when the question arises whether the death was caused by the injuries inflicted on the body of the deceased, it is sufficient for the prosecution to show that one or more injuries were individually responsible for the death or that they were collectively responsible for the death. It is not inconceivable that a clever criminal may in place of inflicting a single injury which seriously interferes with the functioning of the human organism that it causes his death may inflict a number of injuries none of them may be individually sufficient to cause death but collectively in a given set of circumstances, they may be sufficient in the ordinary course of nature to cause death. In the instant case Dr. Sumer Singh P.W.5 has categorically stated that 28 injuries found on the body of Chela were sufficient in the ordinary course of nature to cause death. Therefore, the submission that the offence committed by the accused persons does not go beyond the limits of Sections 324 or 325 I.P.C. must be rejected as baseless.
29. Learned Sessions Judge has come to the conclusion on the basis of the evidence that 4 persons, namely, Gulab Singh, Nimba, Roop Singh and Sona shared the common intention of inflicting injuries on Chela and they collectively attacked him and inflicted 28 injuries on his body. After going through the evidence produced by the prosecution we are convinced that the accused persons who collectively attacked Chela without any provocation as soon as he reached near the bushes where they were hidden had a common intention to attack Chela and the injuries were caused to Chela by them in furtherance of the common intention of all of them. The application of Section 34 I.P.C. for imposing liability on the accused persons cannot be said to be improper.
30. Having considered the submissions made by the learned Counsel for the accused so far as the reliability of evidence produced by the parties is concerned, the last question that deserves to be decided is as to what offence or offences have been committed by the accused who have taken part in the assault made on Chela. Sections 299, 300 and 304 I.P.C. make a distinction between an 'act' and 'causing bodily injury'. The distinction between these two expressions is obviously substantial and important because according to Section 300 firstly of the Indian Penal Code if the death is caused by an act and the act was done with the intention of causing death, the offence is always murder irrespective of the fact whether any injury or injuries were also caused by the act or not. Section 300 firstly defines murder by creating a direct nexus between the act and the death provided the act was done with the intention of causing death. Section 300 fourthly also defines murder by creating a direct nexus between the act done and the resultant death provided the act was so in eminently dangerious that it must in all probability cause death and the offender knew about this consequence of the act. On the other hand, Section 300 secondly and thirdly do not use the expression 'act'. They deal with 'intentional causing of injury'. If the injuries caused by the offender were likely to cause death and the offender knew that the injury is likely to cause death of the person to whom it was inflicted then his act would be murder. Section 300 thirdly deals with those case where there is an intentional causing of an injury and the injury is sufficient in the ordinary course of nature to cause death. There is thus a substantial and important distinction between the 'act' and 'intentional causing of injury'. It is well known that no injury is caused unless some act or omission is committed. Therefore, causing of injury is almost in all cases preceded by an act or omission. In other words, the commission of an act or omission is common to both (i) to act as referred to in Section 300 firstly and fourthly and (ii) to 'Intentional causing of injury' as referred to in Section 300 secondly and thirdly. The crucial question is when doing of an act (including omission) is common in both the cases mentioned above then what is the basic difference between 'act' as used in Section 300 firstly and fourthly and 'intentional causing of injury' as used in Section 300 secondly and thirdly.
31. Since the intentional causing of injury is always preceded by the commission of an act and every act which is referred to in Section 300 firstly and fourthly may result in some injury to the human organism or any vital system thereof, the distinction between the two expressions viz. 'act' and 'intentional causing of injury' appears to be this. If the act is so inently dangerous that in all probability it is likely to cause an injury then it may be safely inferred that the person who committed the act either knew or had reason to believe that the injury would be caused by the commission of the act and in these cases knowledge that a certain injury would be caused by doing of an act may be inferred and, therefore, it may be presumed that the man who committed the act with the knowledge that certain injury would most probably be caused by doing the act actually intended to cause that injury. On the other hand, if the act is not of such a nature as not to result in causing of the injury in all probability, the knowledge that the act would result in causing of an injury cannot be inferred and if such knowledge cannot be inferred the intention that the person who committed the act intended to cause the injury can also not be inferred.
32. Viewed in this light, if the act is so dangerous that it must in all probability result in causing of the injury, knowledge that such injury would be caused and the intention to cause the injury may be inferred and, therefore, in place of referring to an act it may be stated that the person intentionally caused the injury. On the other hand, if the act is not so dangerous as pointed out above it would not be possible to presume that the doer of the act intended to cause the injury and, therefore, in such cases there would be no justification for using the expression 'intentional causing of injury' and the proper course would be to refer to the act committed by the person. This explains why in the cases of acts of murder, the legislature insisted under Section 300 firstly the presence of intention to cause death and under Section 300 fourthly insisted upon such degree of gravity that the act must in all probability cause the death and also required knowledge of such gravity of the act on the part of the offender. But in the case of intentional causing of injury the legislature did not insist upon the presence of intention to cause death nor it insisted upon that degree of gravity which is referred to in Section 300 fourthly and for the purpose of Section 300 secondly it prescribed only three conditions (i) intentional causing of injury (ii) likelihood of death by such injury, and (ill) knowledge on the part of the offender that the person on whom injuries were inflicted was likely to die and for the purpose of Section 300 thirdly only two conditions are prescribed (i) there was intentional causing of injury and (ii) that the injury should be sufficient in the ordinary course of nature to cause death.
33. In the instant case, having regard to the weapons of offence and the nature of injuries and total absence of any motive to cause death it is not possible to infer that the accused persons intended to cause death within the meaning of Section 300 firstly of the Indian Penal Code. However, in the facts and circumstances of the case, it is proved that the accused persons, namely, Gulab Singh, Nimba, Roop Singh and Sona were hidden behind the bushes, they were duly armed and as soon as Chela reached near the bushes they all of a sudden came out and without any provocation or cause of quarrel started inflicting injuries on him and did not listen to the pleadings of Chela's mother Smt. Lachhi nor they paid any heed to the request made by Bhabuta P.W. 7 and Rama P.W.9 and they inflicted injuries on Bhabuta and Ram when they moved onwards to protect Chela, the act in which the above named accused persons indulged in involved hurling blows on the body of Chela with lathis, axes and Dangs. Chela who was unarmed and unprepared for the attack and was surrounded by the four assailants had no opportunity to escape and in these circumstances it can be safely inferred that the act performed by the above named accused persons was so imminently dangerous that it must in all probability cause-injuries which were ultimately found on the body of Chela. We, therefore, find no difficulty in coming to the conclusion that all the injuries of Chela excepting some bruises which might have been caused by the fall on the ground were intentionally caused by the assailants and since all the assailants shared to common intention every accused who assaulted Chela is liable for the injuries inflicted by him and is also liable for the injuries inflicted by the co-accused who assaulted Chela in furtherance of the common intention. If the injuries of Chela can be said to be intentional it has to be seen whether it can be said that the accused persons knew that the injuries were likely to cause the death of Chela. We are afraid in the facts and circumstances and having regard to the nature of the injuries it cannot be said with certainty that the assailant knew that the injuries inflicted on Chela were likely to cause death. Therefore, Section 300 secondly I.P.C. is not attracted.
34. Dr. Sumer Singh P.W.5 has stated that the injuries found on the body of Chela were collectively sufficient in the ordinary course of nature to cause death, though none of the 28 injuries was individually sufficient in the ordinary course of nature to cause death. The injuries on the head of Chela were simple in nature. The deceased was a healthy person and Dr. Sumer Singh P.W.5 has not given any reason and for arriving at the conclusion that the injuries were collectively sufficient in the ordinary course of nature to cause death. We, therefore, hold that it is doubtful whether the injuries on the body of Chela were collectively sufficient in the ordinary course of nature to cause death. Hence Section 300 thirdly of the Indian Penal Code is also not attracted. The nature of the injuries and the fact that Chela died soon after the infliction of injuries on him when he was being taken to the hospital leaves no doubt in it that the injuries were collectively likely to cause his death and in fact they resulted in his death. Therefore, in our opinion, the act of the accused squarely falls within the meaning of Section 304 Part I of the Indian Penal Code because there was intentional causing of injuries and the injuries were likely to cause death though they were not sufficient in the ordinary course of nature to cause death. The accused Gulab Singh and Roop Singh who are before this Court deserve to be convicted under Section 304 Part I I.P.C. besides their conviction under Section 323 I.P.C.
35. The contention of the learned Counsel for the accused that the act of the accused docs not go beyond Section 325 I.P.C. does not appear to be correct.
36. Learned Counsel for the accused has cited a ruling of the Supreme Court given in the case of Sarup Singh v. State of Haryana : 1995CriLJ4168 . We have gone through the judgment of the Supreme Court. In the case before the Supreme Court deceased Jai Karan was given a hammer blow on his head by the appellant. The appellant, his father and brother were tried for committing the said murder. The trial court convicted the appellant under Section 302 I.P.C. and appellant's brother and father were convicted under Section 302 read with Section 34 I.P.C. But the High Court on appeal set aside the conviction and sentence of the father and brother of the appellant and acquitted the appellant for the offence under Section 302 I.P.C. but found him guilty of offence under Section 307 I.P.C. The Supreme Court opined that the guilt of the appellant for causing an injury to Jai Karan was amply established from the prosecution evidence on record. According to the evidence of Dr. who conducted the post mortem examination the cause of death was hydrocophalus and septicimia and there was a fracture of bone of right temporo-parietal region. In the facts and circumstances of that case, the Supreme Court held that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan with the hammer on his head a vital part of the body was likely to cause his death. The significant circumstance was that a single blow was given on the head of the deceased. The Supreme Court therefore held that the offence was punishable under Section 304 Part II I.P.C. It is obvious from the facts of the case that the findings of the Supreme Court were given in the particular facts and circumstances of the case. Since the facts of the two cases cannot be identical the findings given in one case cannot be mechanically applied to the facts and circumstances of another case.
37. We have discussed in detail the distinction between 'act' and 'intentional causing of injury' as used in Sections 299, 300 and 304 I.P.C. For the reasons given in this judgment if the act performed was so imminently dangerous that in all probability it is likely to cause an injury, the doer of the act can be safely clothed with knowledge that the act which he was performing would result in causing of an injury and, therefore, it may be presumed that the injury which was caused by his act was actually intended by him. In such cases the proximate-nexus between the act and the injury makes it necessary to say that his act was not a simple act, it was an act which amounted to intentional causing of an injury. Whenever there is an intentional causing of injury and the injury is likely to cause death, if there is knowledge on the part of the offender that the death would be caused it is a murder as defined in Section 300 secondly and if such knowledge is absent the act would be punishable under Section 304 Part I I.P.C.
38. For the reasons stated above, the appeal filed by the State deserves to be partly allowed, the conviction as well as sentence of accused respondents Gulab Singh and Roop Singh under Section 323 I.P.C. is maintained. The accused Gulab Singh and Roop Singh are hereby convicted under Section 304 Part I I.P.C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- each and further undergo rigorous imprisonment for six months in default of payment of fine.
39. Since the appeal in respect of Nimba Ram has not abated on account of his death during the pendency of the appeal, his conviction as well as sentence is maintained and the appeal filed on behalf of Gulab Singh, Nimba Ram, and Roop Singh is hereby dismissed. Since the State appeal against the acquittal stands abated under Section 394(1) Cr.P.C. against Nimbaram who has died, the appeal filed by the State is partly allowed in respect of acquittal of respondents Gulab Singh and Roop Singh. Therefore, the conviction and sentence under Section 323 I.P.C. is maintained and in place of Section 304 Part II I.P.C. they are convicted under Section 304 Part I.
40. Since the offence under Section 304 Part I I.P.C. is punishable with life imprisonment, the accused Gulab Singh and Roop Singh cannot be given the benefit of Probation of Offenders Act. Their bail bonds are hereby cancelled. They shall surrender before the learned District and Sessions Judge, Jalore within a weak to serve out the sentence awarded to them failing which the learned Sessions Judge Jalore is directed to enforce the attendance of the accused respondents by issuing warrants and commit them to Jail after their arrest.
41. A copy of this judgment alongwith the original record be sent to the learned Sessions Judge, Jalore within a week.