Judgment:
Amaresh Ku. Singh, J.
1. Heard the learned Public Prosecutor for the State and the learned Counsel for the respondents. The state has filed this appeal against the judgment dated 23.12.1978 passed by the learned Sessions Judge, Merta in Sessions Case No. 66/1977: State v. Bheeka and Ors. whereby the respondents were acquitted of the charges punishable under Sections 148, 302 and 302 read with Section 149 I.P.C. as well as Section 323 read with Section 149 I.P.C. and were convicted under Sections 304 Part II read with Section 149 I.P.C. and Bheeka, Gordhan, and Rati Ram were also convicted under Section 447 I.P.C. Feeling aggrieved by the verdict of acquittal in respect of charge under Section 302 read with Section 302/149 I.P.C. the State has field this appeal.
2. The learned Public Prosecutor has submitted that the acquittal of the respondents in respect of charges punishable under Sections 302 and 302 read with Section 149 I.P.C. is against law and facts and deserves to be set aside. On the other hand, the learned Counsel for the respondents has submitted that the judgment delivered by the learned Sessions Judge is just and proper and, therefore, does not call for any interference by this Court in this appeal.
3. We have carefully considered the rival contentions and gone through the record of the lower court.
4. The facts of the case may be briefly summarised-as below : On 28.6.1977 at about 4.45 P.M. on Chhoturam personally submitted a first information report in writing at the Police Station, Mundwa and alleged therein that on that day in the morning his brother Lichhmanram his daughter Kanwarai and first informant's son and daughter went to the field. When they were present in the field at about 12.12.30 P.M. Bheeka, Pema, Ratia, Gheesa and Gordhan came to the field and attacked Lichhmanram with lathis and caused several injuries to him. It was also stated in the first information report that Sukharam, Bhanwarai and Kanwarai were also beaten by the above named persons and on hearing the alarm when Rampal and Lichhman son of Banshi Mali rushed to the spot the assailants fled away. According to the first information report the information about the incident was given to Chhoturam by Lichhman son of Banshi Mali and thereafter Chhoturam alongwith Tulsiram Gehlot, Bheem Puri, Nainaram, Dalaram, Sita Ram etc. went to the field where his brother was lying in an unconscious condition and blood was coming out of the wounds of his head. The injured Lichhman was taken to the hospital in an unconscious condition. Since the condition was serious, he was advised to take him to Nagaur Hospital. Consequently Lichhman was taken to Nagaur. The cause of incident as mentioned in the first information report was that the assailants used to graze their chattel in the field of Lichhman where the crop was standing and when Lichhman objected to it he was beaten with lathis. On the basis of the report given by Chhotu the police registered a case under Sections 307, 147, 148, 149, 447, 427 and 323 I.P.C. and after usual investigation a challan was submitted in the court of Munsif and Judicial Magistrate, Nagaur who ultimately committed the case to the Court of Sessions Judge, Merta.
5. Charges under Sections 148, 302, 302 read with Section 149, 323 read with Section 149 I.P.C. were framed against Gordhan, Bheeka and Ratiram. Charges under Sections 148, 302, 302 read with Section 149 and 323/149 were framed against Gheesa and Pema. The accused respondents pleaded not guilty to the charges framed against them. The prosecution examined as many as 11 witnesses in support of the prosecution story. The accused respondents were examined under Section 313 Cr.P.C. No evidence in defence was produced.
6. After hearing the parties, the learned Sessions Judge, Merta came to the conclusion that the charges under Sections 148, 302 and 302 read with Section 149 and 323 read with Section 149 I.P.C. were not proved against the accused persons. However, he found the accused Bheeka, Gordhan and Rati Ram guilty of the offences punishable under Sections 147, 447 and 304 Part II read with Section 149 I.P.C. Accused Gheesa and Peema were found guilty of offences under Sections 147 and 304 Part II read with Section 149 I.P.C. After hearing the parties on the question of sentence the learned Sessions Judge, Merta instead of sentencing the accused respondents gave them the benefit of Section 6 read with Section 4 of the Probation of Offenders Act and released them on probation.
7. The respondents have not filed any appeal against the verdict of conviction delivered by the learned Sessions Judge.
8. The solitary question which is to be decided in this appeal is whether the acquittal of the respondents in respect of charge under Section 302 and 302 read with Section 149 I.P.C. by the learned Sessions Judge, Merta is justified and whether there are sufficient grounds to interfere with the verdict of acquittal and sentence of the respondents under Section 302 and 302 read with Section 149 I.P.C.
9. The prosecution case in brief is that on 28.6.1977 Lichhman Ram, his daughter Kanwarai and Chhotu Ram's children were present in the field. At that time Bheeka, Gordhan and Ratia brought their herd of sheeps to the field of Lichhman and started grazing the heard in the field where the Bajra Crop was standing. When Bhanwarai, Sukharam and Kanwarai tried to resist the abovenamed three accused persons did not listen to them. Meanwhile Pema and Gheesa also reached there, and then after breaking the fencing the herd of sheep was made to enter in the field. At that time Lichhman objected and Bheeka abused him. When Lichhman objected to be being abused all the accused started hurling lathi blows on him and in consequence of the lathi blows Lichhman sustained certain injuries and fell down. When Bhanwarai P.W.I, Sukharam P.W.2 and Kanwarai P.W.6 tried to save Lichhman they were also beaten by the accused respondents. At the time of incident on hearing the hue and cry Rampal and Lichhman rushed towards the spot and when they objected to the beating being given by the accused respondents, the accused respondents ran away. As stated in the first information report, Lichhman was taken in an unconscious condition to the Hospital where he was advised to take him to Nagaur and he was taken to Nagaur but he died on account of the injuries. The post-mortem examination was conducted on 28.6.1977 and the following injuries were found on his body:
(1) Lacerated wound 3' x 1/2' on right partial region,
(2) Lacerated wound on occipital region mid line 1' x 1/2'
(3) Bruise-right side fore-head extending to right temporal region 3' x 1'
(4) Bruise 4 1/2' x 1' on left scapula region
(5) Bruise on left hand on dorsal surface all over with fracture crapition of carpal bone.
(6) Left eye lid swollen with bluish colouration of skin
(7) Bruise on right tempero-pariental region with swelling 3' x 1'.
10. It was also found during the post mortem examination that there was communited fracture of right temporal and parietal bones. The fracture line extended from just above top of right ear pinna towards parietal bone upto the minline. There was haemotoma on right tempero- partial region and meanings were lacerated alongwith brain matter along the line of fracture and brain matter bulgging out. In the opinion of Dr.O.P. Calla P.W.8 who has proved the post mortem report, the cause of death was shock and coma due to fracture of skull and other bruises and Injury No. 1 was individually sufficient in the ordinary course of nature to cause death and other injuries were cummulatively sufficient in the ordinary course of nature to cause death.
11. The evidence adduced by the prosecution does not show as to who was the author of the injury No. 1 which proved to be fatal. Therefore, individual liability for Injury No. 1 cannot be ascertained. Consequently none of the respondents can be held liable under Section 302 I.P.C.
12. The next question that arises for determination is whether the accused respondents can be held to be liable under Section 302 read with Section 149 I.P.C. In order the liability for murder may be imposed on any accused with the aid of Section 149 I.P.C, it must be shown that the death was not only homicidal but it amounted to murder as defined in Section 300 I.P.C.
13. Learned Public Prosecutor has submitted that since all the accused persons collectively attacked Lichhman who was at the time of incident unarmed and when he orally protesting against the grazing of herd of sheep in his field where a crop was standing and the manner in which the injuries were inflicted on him show the intention of the respondents was to cause his death. In the alternative, learned Public Prosecutor has submitted that even if it is held that the intention of the respondents was not to cause death, it must be held that they intended to cause the injuries including the injury No. l which were found on the body of Lichhman during the post mortem examination and if the injury No. l which caused the death can be said to be intentional the offence would be murder as defined in Section 300 thirdly of the Indian Penal Code because injury No. 1 was sufficient in the ordinary course of nature to cause death. It is further submitted by the learned Public Prosecutor that if for any reason the offence is held to be amounting to culpable homicide not amounting to murder the act of the accused respondents must be held to be covered by Section 304 Part I I.P.C. because the injuries that were inflicted upon Lichhman were intentional and since the injury No. 1 has caused the death of Lichhman it is obvious that the injury No. l was likely to cause death.
14. On the other hand, learned Counsel for the respondents has submitted that in this case the intention to cause death cannot be inferred because the quarrel occurred all of a sudden without any previous design, the weapons of offence were lathis and it would not be safe to infer that the accused respondents intended to cause the death of Lichhman. It is also submitted by the learned Counsel for the respondents that in this case the murder does not appear to have been committed because the case is not covered by Section 300 secondly and thirdly of the Indian Penal Code and the learned Sessions Judge, Merta has rightly come to the conclusion that at best the act of the accused falls within the meaning of Section 304 Part II I.P.C.
15. We have considered the rival arguments advanced by the learned Counsel for the parties. Section 299 I.P.C. which defines culpable homicide not amounting to murder separately deals with (i) act and injuries, (ii) intention and knowledge which clearly shows that Section 299 I.P.C. makes a distinction between 'an act' and 'an injury' and further makes a distinction between 'intention' and 'knowledge'. First part of Section 299 I.P.C. deals with those cases in which the death is caused by doing of an act with the intention of causing death. Second part of Section 299 I.P.C. deals with those cases in which the death is caused with the intention of causing such bodily injury as is likely to cause death and third part of Section 299 I.P.C. deals with those cases in which the death is caused by doing of an act which is done with the knowledge that such act is likely to cause death. The three cases dealt with by Section 299 I.P.C. thus make use of expressions 'knowledge', 'intention', 'act' and 'injury'. The first case in which death is caused by doing of an act with an intention of causing death is also covered by Section 300 firstly which provides that the act by which the death is caused is done with the intention of causing death, the act would amount to murder. The second case dealt with by Section 299 I.P.C. is when death is caused with the intention of causing such bodily Injury as is likely to cause death. The cases in which there is an intention to cause bodily injury are dealt with in Section 300 secondly and thirdly. Section 300 secondly provides that if death is caused with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused then it is murder and Section 300 thirdly provides that if death is caused with the intention of causing bodily injury to any person and the bodily injury is sufficient in the ordinary course of nature to cause death then the act would amount to murder. It is, thus, obvious that the second case referred to in Section 299 I.P.C. in which there is an intention to cause bodily injury which is likely to cause death has been dealt with in Section 300 secondly and thirdly. If the offender who intentionally inflicts the bodily injury which is likely to cause death has the knowledge that such bodily injury is likely to cause death of the person to whom it is caused then his act would amount to murder. Second case enumerated in Section 299 I.P.C., when compared with Section 300 secondly, makes it clear that the intention to cause bodily injury which is likely to cause death is common to both, culpable homicide not amounting to murder and culpable homicide amounting to murder. What aggravates the gravity of the offence is the knowledge of the accused that the intentional injury which he has inflicted is likely to cause death of the person to whom the injury is inflicted. If this knowledge is present the act would be murder. If this knowledge is not present the act would amount to culpable homicide not amounting to murder. When the second case dealt with by Section 299 I.P.C. is compared with Section 300 thirdly of the Indian Penal Code it became clear that the intention to cause injury which is likely to cause death is common to both. What aggravates the gravity of the act is the higher degree of seriousness of the injury. If the injury is merely likely to cause death then it is culpable homicide not amounting to murder but if the injury is sufficient in the ordinary course of nature to cause death then it is murder within the meaning of Section 300 thirdly of the Indian Penal Code. It shows that under Section 300 secondly the knowledge of the accused aggravates his crime, under Section 300 thirdly the seriousness of the injury aggravates the crime.
16. The third case dealt with by Section 299 I.P.C. is that in which an act is done and in consequence of that act the death is caused. In this third case the legislature has deliberately omitted to refer to the intention to cause the injury but knowledge that act is likely to cause death is necessary. When the third case mentioned in Section 299 I.P.C. is compared with Section 300 fourthly it becomes clear that doing of an act which results in death is common to both and what aggravates is the seriousness of the crime is, the degree of probability of causing death. In the case of culpable homicide not amounting to murder the death is caused by an act which is likely to cause death but for the purpose of Section 300 fourthly of the Indian Penal Code the act must be of such nature that it is so imminently dangerous that in all probability it must cause death. or such bodily injury as is likely to cause death and in addition the offender must know that the act which he performed was of the above nature. In the case of murder, the act results in death and what aggravates the crime is (i) a higher degree of gravity of the act so that it must in all probability cause death or cause such injury as is likely to cause death and (ii) knowledge on the part of the offender that the act he performed was so dangerous.
17. Viewed in the light of the above analysis the provisions of Section. 304 Part I and Part II of the Indian Penal Code need the interpreted. First Part of Section 304 I.P.C. deals with those cases in which the act does not amount to murder and, the act by which the death is caused was done with the intention of causing such bodily injury as is likely to cause death. The second part of Section 304 I.P.C. deals with those cases of culpable homicide not amounting to murder in which the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.
18. The crucial question that arises for consideration is what is the difference between doing of an act which results in injury and intentional causing of an injury. Since the Statute makes a distinction between intention of causing injury which results in death and doing of an act without any reference to injury, it must be inferred that there is a substantial distinction between the act simpliciter and the intentional causing of injury.
19. It is well known that an injury can be caused to the body of a person by doing of an overt act by some one. Injuries do not occur without any cause. Therefore, in the case of acts simpliciter and the cause of injuries caused by an act, in both the act is common. If act in both is common, what is the difference between doing of an act and intentional causing of an injury. This question may be answered by stating that doing of an act may be equated with the cause an injury may be described has the effect of the act. If there is a sure and certain relationship between doing of an act and injury it can be safely said that by doing of an act certain injury must be caused. In these cases, whosoever does the act can be presumed to know the consequences of his act and may be certain injury would be caused and by application of the rule that one who knows the inevitable consequences of his act. must be presumed to have intended to produce that consequences, it can be inferred that the man who does such an act intends to cause the injury which the act is inevitably likely to produce. In all such cases because of a direct and certain relationship between the act and the injury and the inference of knowledge as well as intention on the part of the doer of an act, it may be said that the person has intentionally caused the injury; On the other hand, if the relationship between the act and the injury is not inevitable and is merely probable it may not be possible for us to presume that the person who performed the act knew what shall be the consequences of his act and if we cannot presume that he had such a knowledge of the consequence of his act it cannot be inferred that he intended to produce such consequence of the act. In all such cases, since it would not be possible for us to say that he intentionally caused the injury, the proper statement would be that he did the act which in the given set of circumstances resulted in an injury or in death. If the above approach is correct, the distinction between the cases in which an accused may be said to have caused an injury and the cases in which the accused cannot be said to have intentionally cause the injury would be that in the former cases the act was so iminently dangerous that it must in all probability have caused the injury in question while in the later cases the act was merely likely to cause the injury in question.
20. In this case it has been proved by the prosecution evidence that all the five accused persons collectively attacked Lichhman and inflicted several injuries on his body. One of the injuries which was on the head was grievous in nature. It caused a fracture and damaged the brain and it is proved to be fatal. The crucial question is whether the act of causing this injury attracts the provisions of Section 304 Part I or it attracts the provisions of Section 304 Part II I.P.C.
21. Before we decide this question it would be proper to dispose of the contention of the learned Public Prosecutor that the act of causing death of Lichhman amounted to murder within the meaning of Section 300 secondly or thirdly of the Indian Penal Code.
22. In our opinion, it is not necessary to decide question because the accused respondents have been held liable under Section 149 I.P.C. and, therefore, the crucial question would be whether the members of the unlawful assembly shared the common object of causing murder of Lichhman Ram or they had the knowledge that murder of Lichhman Ram might be committed by some one of them in the prosecution of the common object of the unlawful assembly. So far as the common object of the unlawful assembly is concerned, the evidence produced by the prosecution does not show that the members of the unlawful assembly had the common object of causing death of Lichhman Ram. Their common object was to forcibly graze their herd of sheep in the Bajra crop of Lichhman Ram and it was this object in prosecution of which they inflicted injuries on Lichhman Ram when he resisted the grazing of sheep in his field. Having regard to the facts and circumstances of the case, the weapons used it cannot be said that the members of the unlawful assembly had the knowledge that murder of Lichhman Ram would be committed in the prosecution of the common object of the unlawful assembly. However, collective attack by all the members of the assembly on Lichhman Ram and infliction of several injuries some of which were grievious on him leads to the inference that the members of the assembly must have known that Lichhman Ram might be killed and an offence of culpable homicide not amounting to murder might be committed. Therefore, in our opinion, that liability of the members of the unlawful assembly under Section 149 I.P.C. does not go beyond Section 304 I.P.C.
23. Having answered the above question we now proceed to consider whether the act of causing injuries by the members of the unlawful assembly to Lichhman Ram and causing of his death attracts part I of Section 304 I.P.C. or cases covered by Part II of Section 304 I.P.C. As we Have pointed out earlier, every injury preceded by an act, therefore, in the case of murder act and causing of intention injury in commission of some act is common. What distinguishes a mere act from the intentional causing of injury is the proximate relationship between commission of an act and the injury. If the act is so in eminently dangerous that it must in all probability cause the injury in question and the offender knows that by doing of an act such injury would be caused then we can infer from his knowledge, his intention to cause the injury. .On the other hand, if the act is done by him is not so iminently dangerous as to cause the injury in question but merely likely to cause an injury, it may not be possible to infer that by doing of that act he intended to cause an injury in question. Applying the above test in the instant case the causing of injury to Lichhman Ram by the accused respondents was such an act which was in all probability likely to cause those injuries which were actually found on his body. If five persons collectively beat a single unarmed man with lathis and strike him at his head and scapula, it is obvious that he will in all probability receive injuries of simple and grievous nature. Therefore, all the members of the unlawful assembly should be presumed to have known that the act they were performing namely hurling lathi blows on Lichhman Ram would in all probabilities cause simple and grievous injury on his head and other parts of the body and, therefore, all of them should be saddled with the intention of causing injury which were found on the body of Lichhman Ram. Hence, in the facts and circumstances of the case, it must be said that the causing of injuries to Lichhman Ram was intentional. In view of the evidence of the Doctor, the injury No. l found on the head of Lichhman Ram was sufficient in the ordinary course of nature to cause death. But no accused can be held guilty of murder because it is not ascertainable as to who was the author of the fatal injury. It is, therefore, obvious that it must be said that the act of accused was likely to cause his death. Thus, the injuries caused to Lichhman Ram must be said to have been caused inentionally and likely to cause death. Consequently, it is Section 304 Part I I.P.C. which is attracted in this case and the learned Sessions Judge has committed a grave error by holding that the act of the accused is covered by Section 304 Part II I.P.C. He has not given any reasons for arriving at the conclusion that the act of the accused respondents falls under Section 304 Part II I.P.C. We are, therefore, not in a position to know as to what he had in his mind.
24. For the reasons stated above, this appeal should be partly allowed, the acquittal of the accused respondents in respect of charge under Sections 302 and 302/149 I.P.C. deserves to be maintained but the respondents' conviction under Section 304 Part II IPC read with Section 149 IPC deserves to be altered into conviction under Section 304 Part I read with Section 149 I.P.C. and we order accordingly.
25. The offence under Section 304 Part I I.P.C. is punishable with imprisonment for life, therefore, the respondents cannot be given the benefit of probation of Offenders Act. Having regard to the facts and circumstances of the case, in our opinion it would be just and proper to sentence them to rigorous imprisonment for five years and to pay a fine of Rs. 200/- each and in default of payment of fine the defaulter will undergo rigorous imprisonment for one month. The ball bonds of the respondents are hereby cancelled. They will surrender before the learned Sessions Judge Merta to serve out the sentence according to law.