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PETITIONER: BAUL & ANOTHER

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 24/11/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  728            1968 SCR  (2) 450  CITATOR INFO :  R          1991 SC 318  (19)

ACT: Indian Penal Code (45 of 1860), ss. 302 and 34-Acquittal  of one of two accused-No evidence regarding injuries caused  by the other to deceased-Nature of offence committed by him.

HEADNOTE: Two  accused were charged with an offence under s. 302  read with s. 34 I.P.C. The victim had four lathi injuries on  his head-two  fatal  and  two simple.  One of  the  accused  was acquitted.   On  the  question whether the  other  could  be convicted  for an offence under s. 302  simpliciter  without establishing  that he had caused at least one of  the  major injuries, HELD  :  As  a result of the acquittal of  one  of  the  two accused,  the  common intention was not proved.  In  such  a case it could not be postulated that the other accused alone caused  all  the  four injuries  and  the  prosecution  must establish  the exact nature of the injury caused by  him  In the  absence of such evidence, he must be given the  benefit of  doubt with respect to the offence under s. 302, but  may be convicted for the offence of causing grevious hurt  under s. 325 [453 H; 454 A-D, C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 47 of 1965. Appeal  by special leave from the judgment and  order  dated August  31,  1964 of the Allahabad High  Court  in  Criminal Appeal No. 397 of 1963. P.   K. Chakravarti and C. P. Lal, for the appellants. K.   K. Jain and O. P. Rana, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J. The appellants are father and  son.   They were  prosecuted with one Ramdeo who has been  acquitted  by the  High Court.  The prosecution case against them is  that on the evening of June 7, 1962, about sun-set they  attacked one  Ramdular causing him fatal injuries on his head with  a lathi  resulting in his death.  The first appellant Baul  is

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said  to  have  instigated  the  assault  and  the  original prosecution  case  was that the other appellant  Sadhai  and Ramdeo (the acquitted accused) assaulted Ramdular.   Medical evidence  established that the deceased died as a result  of two fatal blows on the head, both of which appeared to  have caused  extensive  fractures of the skull.  There  were  two other injuries on the head which were simple.  The  deceased never regained consciousness after he received the blows and died  in  the  hospital about 11.30  the  same  night.   The occurrence took 451 place  in  this  way.   It  appears  that  Baul,  the  first appellant, and Lurkhur (P.W. 1) who are brothers-in-law were at loggerheads over a right of way.  On the day in  question Lurkhur  was  preparing  his food near  his  house  and  the deceased  was at a well nearby.  When Baul passed  that  way there  was an exchange of abuses and Baul raised  an  alarm. Lurkhur’s son, the deceased, came out of his house with  his wife.   On the other side came the appellant Sadhai and  the acquitted accused Ramdeo.  Baul instigated these two to beat the deceased who was probably very vociferous in his  abuses in  support  of his old father.  When this  exhortation  was made  the  deceased took to his heels chased by  Sadhai  and Ramdeo.  According to the prosecution evidence both of  them hit  the deceased on the head with their lathies.   The  de- ceased attempted to run back to his house but fell down near the   door  step.   The  appellants  and  Ramdeo   thereupon retreated. The Police Station House is situated within a distande of  a mile  from the scene of occurrence.  Report of the  incident was made between 7 and 8 p.m. but was actually recorded at 8 p.m. Badshahpur Hospital is situated within 2-3 furlongs  of the  police  station house and the deceased was sent  in  an unconscious  condition to the hospital.  He  never  regained consciousness  before his death.  The  Sub-Inspector,  after recording   the  first  information  report,  went  to   the hospital,  found  the deceased unconscious  and,  therefore, went  to the spot where he found no witness except the  wife of  the deceased person.  He went back to the  hospital  and then went in search of the appellant Sadhai and arrested him in  the  village  after  10  p.m.  The  other  two   accused surrendered  in  court later on June 18, and June  20.   The deceased was examined while he was still alive by Dr. N.  D. Burman  (P.W.  3)  and  his report shows that  he  had  "  a mutilated" wound of I" X1 / 10" X 1/4" on the left side  and the head 21" above the left eye-brow with swelling 4"X4-1/2" in area.  The wound was then bleeding.  He also had a bluish swelling  2-1/2"X2" on the right side of the scalp 2"  above the  right  eye-brow.  Both the injuries were said  to  have been caused with a blunt weapon such as a lathi.  After  the death of the deceased postmortem examination was done by Dr. M. L. Gouta (P.W. 7).  He had the opportunity to examine the injuries more closely.  According to him there were :                1.   a contusion 2-1/2"Xl" on the right  side               of the forehead 1/2" above the right eye-brow.                2.   a  contusion 21/2"X 1" on the left  side               head  2" above left ear with swelling  of  the               entire left side of head and face.                3.   contused  wound 1/2"X1/4" scalp on  left               side of head 2" above the left eye-brow.                452                4.   swelling  3"X2"  on right side  of  head               1/2-" above the right ear. There was also an abrasion on the back of right elbow joint. Internal examination disclosed left and right perietal bones

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fractured  at many places.  Front perietal bone of the  head was  fractured  at its joint.  Congested clotted  blood  was present all over the bones of the head.  The membranes  were besmeared  with  blood.  The right and left  hemisphere  was entirely  covered with clotted blood.  The bone on the  left side of the base of the skull was also fractured. There  are five eye-witnesses of ’the actual  occurrence  of whom only two have been believed.  They are Lurkhur (P.W. 1) and Smt.  Mangani (P.W. 2) the wife of the deceased.   Three other witnesses, Ram Saran (P.W. 4), Ram Dular (P.W. 5)  and Ram  Swaroop (P.W. 6) were also examined.  They stated  that they  were passing that way and saw the assault.  Dular  and Ramswaroop  were  disbelieved  as  to  the  actual  assault, because when they saw the deceased he had already fallen  on the  ground.   Ram.  Saran was disbelieved  because  in  the committing court he had deposed that he had only seen Sadhai although in the Court of Sessions he named both the youngmen as the assailants.  Baul, of course, admitted his  presence, but his son Sadhai pleaded alibi.  His statement was that he had  left with the corpse of the mother of one  Marwari  for Jhusi to attend the cremation and returned by train at  7.30 p.m.  He  came  from the station on  the  ’hearse  car’  and alighted  at the police station house when he was  arrested. He examined one witness in support of this statement.   This witness was his companion on this trip. The  Sessions  Judge disbelieved the evidence of  alibi  and accepted  the evidence of the eye-witnesses.   He  convicted all the accused under ss. 302 read with s. 34, Indian  Penal Code  and  sentenced  them to  imprisonment  for  life.   On appeal, Ramdeo was acquitted and the conviction of Baul  was altered  to S. 325 read with S. 109 and he was sentenced  to five  years’  rigorous  imprisonment.   The  conviction  and sentence  of Sadhai were maintained but the  conviction  was altered from s. 302/34 to s. 302 simpliciter. In  this appeal Mr. P. K. Chakravarty has raised two  points which  are  the only points to be  considered  because  this Court,  in an appeal by special leave where the  two  courts below   have  concurred  in  their  conclusions,  does   not ordinarily  reassess  the evidence.  The first is  that  the High  Court did not consider the  evidence of alibi at  all. The  High Court mentioned the alibi but did not consider  it in  its  judgment.   It  may be  that  having  accepted  the evidence of the eye-witnesses the High Court did not feel 453 it  necessary  to  say that the evidence of  alibi  was  not accepted  by it. In view of the fact that no  reference  was made  to the evidence of alibi we had that evidence  brought to our notice and compared it with the evidence of the  eye- witnesses.   We think that the evidence of alibi  cannot  be accepted.  The Sub Inspector has quite clearly deposed  that Sadhai was arrested at about 10 p.m. and not at 7.30 p.m. as Sadhai  alleges.   Further, if Sadhai had gone to  attend  a cremation  ceremony,  he  would  have  numerous  persons  to support  his  alibi and his reliance on a  solitary  witness whose deposition does not impress us goes against him.  Even this  sole witness said nothing more than this that he  went to the cremation and returned with the accused on the train. In these circumstances we agree with the Sessions Judge that the  evidence  of alibi was not satisfactory  and  -did  not displace the evidence of the eyewitnesses. The next submission of Mr. Chakravarty needs some attention. According  to  Mr. Chakravarty the offence  charged  against Sadhai was commission of murder in furtherance of the common intention of two persons, that is, himself and Ramdeo.   The Sessions Judge held that both had taken part in the  assault

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in  furtherance  of  a common intention  and  logically  the Sessions Judge was right in his conclusion that if there was a  common intention both Sadhai and Ramdeo were  responsible for  the offence of murder.  When the High  Court  acquitted the  other  accused (Ramdeo) the High  Court  converted  the conviction from S. 302/ 34 to S. 302 simpliciter.  In  other words,  the High Court held’ Sadhai responsible for all  the injuries  which  had  been  caused  to  the  deceased.   Mr. Chakravarty  submits that in a case of this type where  four blows  were  hit  on the head by two  persons  it  would  be difficult  to say who hit which blow and whether whose  blow or blows was responsible for the fracture of the skull.  He- contends that if s. 34 was available this argument would not be  open,  but  in  the  absence  of  common  intention  the prosecution case cannot be held proved against Sadhai and he made  responsible for all that was caused to  the  deceased. He  submits that there should be some evidence to show  that the injury which Sadhai caused to the deceased was at  least one  of the two major injuries and not one of the two  minor injuries.  According to him this raises a doubt in his  case and Sadhai’s offence cannot be nuder S. 302 simpliciter. No  doubt the original prosecution case showed  that  Sadhai and  Ramdeo  both hit the deceased on the  head  with  their lathies.   One is tempted to divide the two  fatal  injuries between  the two ,assailants and to hold that one  each  was caused  by them.  If there was common intention  established in the case the prosecution would not have been required  to prove  which of the injuries was caused by which  assailant. But  when  common intention is not. proved  the  prosecution must establish the exact nature of the 454 injury caused by each accused and more so in this case  when one of the accused has got the benefit of the doubt and  has been  acquitted.  It cannot, therefore, be  postulated  that Sadhai  alone  caused all the injuries on the  head  of  the deceased.  Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the  character which  would bring his case within S. 302.  It may  be  that the  effect of the first blow became more prominent  because another  blow  landing  immediately  after  it  caused  more fractures  to  the  skull than the first  blow  had  caused. These  doubts  prompt  us to give the benefit  of  doubt  to Sadhai.   We think that his conviction can be safely  rested under  S. 325 of the Indian Penal Code, but it is  difficult to  hold  in a case of this type that his guilt  amounts  to murder  simpliciter because he must be held responsible  for all  the  injuries  that were caused  to  the  deceased.  We convict  him instead of S. 302 for an offence under S.  325, Indian Penal Code and set aside the sentence of imprisonment for  life and instead sentence him to rigorous  imprisonment for seven years. As regards Baul his instigation was likely to result in  the kind of injury which was caused to the deceased.  The  least that  could have happened was a grievous injury.   In  these circumstances,  we do not think that there is any  room  for interference  in  his case.  His appeal  must  therefore  be dismissed. The appeal is therefore allowed in respect of Sadhai to  the extent indicated above and dismissed as to Baul. V.P.S.                          Appeal allowed in part. 455