http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: NINAJI RAOJI BOUDHA & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT20/02/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 1537            1976 SCR  (3) 428  1976 SCC  (2) 117

ACT:      Indian  Penal  Code  (Act  45  of  1860)  s.  34-common intention-Evidence showing  only intention to cause grievous hurt-Victim dying but no evidence as to. who caused the only fatal injury-If accused could be convicted under ss. 302 and 34.

HEADNOTE:      Nine accused  were charged  with offences of murder and causing hurt.  The trial  Court acquitted  two and convicted the others  under ss.  325 and  147, I.P.C. on appeal by the State, the  High Court  convicted the  two  appellants  also under s. 302 read with 8. 34. I.P.C.      Partly allowing their appeal to this Court, ^      HELD: The  High Court has not examined the liability of the accused  with due  regard to the facts and circumstances of the  case. Instead  of giving  a categorical finding, the High Court  stated at  one place  in its-  judgment that the appellants must  be taken to have had the knowledge that the injury which  they intended  to  cause  to  the  victim  was "likely to result" in his death, and in an other place, that the appellant  were guilty  of  an  offence  under  s.  300, fourthly, because  they "ought  to have known that their act was so  imminently dangerous  having regard  to the  age and condition  of   the  victim  that  their  act  must  in  all probability cause  death or  such bodily injury as is likely to cause  death." But  the evidence on record shows that the appellants did  not have  the common  intention of  giving a beating to the deceased when they reached his house but were only bent  upon settling  scores with  his son.  It was only when the  deceased asked  another witness  to  get  ready  a bullock cart for making a complaint about the beating of his son that the appellants inflicted injuries on him. But there was nothing  to show that their intention was to inflict any fatal injury.  Only one  of the injuries was a forceful blow on the  head of  the deceased  and it resulted on his death. But the  other injuries  were on the back of the neck, knees and right elbow of the deceased and not on any vital part of the body.  Therefore, the  appellants had  only  the  common intention of  causing Grievous  hurt.  Since  there  was  no reliable evidence  to show  which of the two appellants gave

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

the fatal blow, the appellants could only be convicted of an offence under  s. 325 read with s. 34, I.P.C. [431F; 432C-D, P-G; 433E-434C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 181 of 1971      Appeal by  special leave  from the  judgment and  order dated the  25th and  28th September, 1970 of the Bombay High Court Nagpur  Bench in  Criminal Appeal  No. 24 of 1968 with Crl. A. No. 100 of 1968.      Harjinder Singh, for the appellant      S. B. Wad and M. N. Shroff, for the respondent      The Judgment of the Court was delivered by      SHINGHAL, J.-This  is an  appeal of Ninaji Raoji Boudha (hereinafter referred  to as  Ninaji) and Raoji Gianu Boudha (hereinafter referred  to as  Raoji), against  the appellate judgment of  the Bombay  High Court  dated September  25/28, 1970. The Additional Sessions 429 Judge of  Khamgaon convicted  them of offences under ss. 325 and A 147 I.P.C. and sentenced them to rigorous imprisonment for five  years and a fine of Rs. 50/- for the offence under s. 325,  and to  rigorous imprisonment  for six months and a fine of  Rs. 25/-  for the  offence under  s. 147 I.P.C. The High Court  held, on  appeal, that  they were  guilty of the offence under  s. 302  read with  s. 34 I.P.C. and sentenced them  to  imprisonment  for  life  by  setting  aside  their acquittal for " the offence of murder of Bhonaji. Ninaji and Raoji were  also convicted  for an  offence under s 325 read with s.149 I.P.C. for participating in the unlawful assembly which was  held  to  be  responsible  for  causing  grievous injuries  to   Bhonaji’s  sons  Samadhan  and  Rambhau,  Mr. Harjinder Singh,  Amicus Curiae,  stated on  behalf  of  the appellants that  he did  not think it worthwhile challenging the conviction  of appellants  Ninaji  and  Raoji  for  that offence, and  that he  would confine  the  appeal  to  their conviction for  the offence  under s.  302/  34  I.P.C.  for causing the  death of  Bhonaji. We  would therefore  concern ourselves with  the incident  which  resulted  in  Bhonaji’s death and the conviction of the appellants therefor.      Appellants Ninaji  and  Raoji  were  two  out  of  nine accused who  were challaned  for the  commission of  various offences in an incident which took place in mauza Narkhed in Buldana district  on September 29, 1966, as a result of some petty quarrel  between Bhonaji  and his  sons  Samadhan  and Rambhau on  the one hand and the appellants and ;their party on the  other. It was alleged that on September 29, 1966, at about 6  p.m., there  was a quarrel between the two factions at ‘Gothan’,  near the  house of  Bhonaji,  because  of  the impounding of  a she  but also of Ananda (who was one of the nine accused  in the  case) by  Bhonaji’s third son Madhukar and of  the cow  of Ninaji’s  nephew Narain.  lt was alleged that the  nine accused,  including the  present  appellants, went to ’gothan’. There was some altercation between accused Ananda and-Samadhan  and the  parties  beat  each  other.  r Samadhan and  his relations  then went to their house, which was close  - by. Samadhan, who had received some injuries at ’gothan’, went inside his house to dress them up. His father Bhonaji sat  on an  ’oota’ in  front of  the  house.  It  is alleged  that  appellants  Ninaji  and  Raoji,  and  accused Parashram, gave a beating to Bhonaji at the oota as a result of which  he fell  down, and  the remaining accused forcibly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

took Samadhan  to a  place near the house of one Trimbak and beat him  there. Reports  of the incident were lodged at the police station.  . Bhonaji  succumbed  to  his  injuries  on October 2,  1966. The police investigated and challaned nine accused  including   appellants  Ninaji   and   Raoji.   The Additional Sessions  Judge convicted them all, but acquitted Parashram and  Ram Das.  While accused Ninaji and Raoji were convicted and  sentenced as  aforesaid  the  remaining  five accused were  convicted and sentenced for offences under ss. 325 and  147 I.P.C.  Or/ and  325/149 and  147 I.P.C. As has been stated, this appeal is by Ninaji‘and Raoji in regard to the incident  which took  place in  front of  the  house  of Bhonaji and resulted in his death.      It has  been argued  by Mr. Harjinder Singh that in its appellate judgment  the High  Court lost  sight of  the fact that Bhonaji was present      13-L522SCI/76 430 at the  incident which  took place  at ’gothan’, and that it erred in  thinking that  there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his ’oota’.      We have  been taken through the evidence on the record, and we  find that there is no justification for the argument that the fatal injury was caused to Bhonaji at ’gothan’, and not in  front  of  his  house.  We  have  gone  through  the appellate judgment  of the  High Court, and we are satisfied that while  Bhonaji’s house  was quite  near  the  ’gothan’, there can  be no  doubt that  the accused went to his house, after tho  beating which  had taken place at ’gothan’. As we shall show  in a  while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there.      The  other  argument  of  Mr.  Harjinder  Singh,  which however  requires  serious  consideration,  is  whether  the appellants Ninaji  and Raoji  have rightly been convicted by the High Court for the offence under s. 302 1[’ read with s. 34 I.P.C.  The finding  of the High Court in this respect is as follows,-           "The evidence  very clearly  shows that  these two      persons ...  were responsible for assaulting Bhonaji as      a result of which Bhonaji died. It may be that they had      in the  beginning no  common  object  or  intention  to      assault  Bhonaji   but  it   does   appear   from   the      circumstances that  these two  persons, and  i’ may  be      Parashram, formed a common intention at that moment and      both of  them dealt  blows on  Bhonaji which  were - on      vital parts  of the  body such  as head  and neck.  The      blows were  given by  sticks though  the description of      the sticks  cannot be  known because  the sticks  which      have been  recover ed in this case cannot be said to be      sticks connected  with the  crime as such. But from the      nature of  the blows  which were given on the person of      Bhonaji, it  appears that  the sticks  were quite heavy      and the  blows of  the sticks  actually resulted in the      death of  Bhonaji. When  the blows  were .,  given  the      accused must  have intended  to cause those injuries to      Bhonaji. They  must be  taken to  have  knowledge  that      Bhonaji was  an old  man and  on account  of the  blows      given by  these accused  his death  was  likely  to  be      caused, particularly when the blows were given on vital      parts of the body. They must be taken to have knowledge      that the  injury they  intended to cause to Bhonaji was      likely to  result in  the death   of Bhonaji. The post-      mortem examination  of Bhonaji  shows that  there  were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

    several fractures  and fissures  in the  p head and the      blows must  have been  dealt with  quite an  amount  of      force. The  accused Nos.  6 and  7  Ninaji  and  Raoji,      therefore, would  be guilty  of an  offence which would      come under  section 300,  fourthly, because the accused      Nos. 6  and 7 ought to have known that their act was so      imminently dangerous  having  regard  to  the  age  and      condition of  the victim Bhonaji that their act must in      all probability  r ;. cause death or such bodily injury      as is likely to cause death." 431      A perusal  of the  judgment shows  that while  the High Court took A the view, in the beginning, that the appellants had no  common object  or intention  to assault  Bhonaji, it took the  view that  they, and  may be  Parashram, "formed a common intention  at that  moment." It is not clear from the judgment at  what moment-of  time such  a  common  intention could be said to have been formed by them.      Moreover, the  High Court  has taken the view that both the appellants  dealt blows on vital parts of Bhonaji’s body which resulted  in his  death and  that when  the blows were given  the  accused  "must  have  intended  to  cause  those injuries to  Bhonaji" with  the knowledge that he was an old man and  his death  was likely  to be caused by those blows. Therefore  the  question  which  requires  consideration  is whether it could be said that there was any evidence to show that more  than one  blow was inflicted on any vital part of Bhonaji’s body and whether both the assailants could be said to have  inflicted the  fatal injury with the knowledge that it was likely to cause death. The High Court has stated that the post-mortem  examination showed  that there were several fractures and  assures in the head and that the "blows" must have been dealt with quite an amount of force. Then t it has been further  held by  the High Court that the accused ought to p  have known  that their action in inflicting the injury was "so  imminently dangerous"  as to  cause the death of an old  person  like  Bhonaji.  As  we  shall  show,  there  is justification for  the argument  that in  arriving  at  this decision the  High  Court  misread  the  evidence  in  vital particulars and committed an apparent error of law as well.      It is not disputed before us that there was an incident at ’gothan’ where there was a beating between the parties of the accused  and Samadhan,  and that Samadhan and his father Bhonaji returned  to  -  their  house  thereafter.  Samadhan (P.W.19) has  himself stated  that he  went inside his house while his  father Bhonaji  sat outside,  and that;  when  he (Samadhan) was tying a towel on his head to cover the injury which had  been inflicted  at ’gothan’,  the  party  of  the accused came  to his  door and called him out. Sri Ram (P.W. 5) and Sukhdev (P.W. 7) have stated much to the same effect. The evidence  on record  therefore showed  that  the  common intention of  the appellants was to settle their scores with Samadhan, and  not Bhonaji.  In fact the High Court has also held as follows,-           "It does  not appear that any of these persons had      initially any  idea of  assaulting  either  Bhonaji  or      Rambhau, but  they seemed  to be  only after  Samadhan.      While Samadhan  was being  asked to  come  out  of  the      house, the  deceased Bhonaji  must have  abused or said      something which  infuriated some OF the accused persons      and it  is on  account of  this, it appears that Ninaji      and  Raoji   and  perhaps   Parashram  directed   their      attention to Bhonaji."      It cannot  therefore be  said that the common intention of the  accused was  to cause  the death of Bhonaji. In fact

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

the statement  of Sri  Ram (P.W.  5) shows  that at the time when the  accused came  to  Bhonaji’s  house  in  search  of Samadhan, Bhonaji was sitting on the platform or 432 ’oota’. Sukhdev  (P.W. -7)  has  also  stated  to  the  same effect, and  the statement  of Samadhan (P.W. 19) also shows that his  father was  sitting in  front of  the steps of the house when  they asked Samadhan to come out of the house. It is therefore  quite clear  that the  accused did  not give a beating to  Bhonaji  even  though  he  was  sitting  on  the platform outside  his house.  On the other hand, they passed him by,  while calling  Samadhan to come out. They could not therefore be  said to have the common intention or object of inflicting any injury on the person of Bhonaji till then.      It will  be recalled that the High Court has not stated at what  point d  time they could be said to have formed the common intention  of causing  the death  Bhonaji. It appears from the statements of Rambhau (P.W. ’1) and Tulsi Ram (P.W. 10) that on returning from ’gothan’ Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and  also to get a bullock cart ready for going to the police station.  That appears  to be  the point of time when the accused  diverted their  attention to him and gave him a beating, but  there is  nothing to show that their intention was to  inflict any  fatal injury.  As has  been stated, the High Court  has taken  the view  that more than one blow was given on  vital parts  of Bhonaji’s  body  and  that  caused several fractures and fissures in the head.      We have  examined the  correctness of  that finding. It has been stated by Dr. Garge (P.W. 40) that he performed the post-mortem examination on the dead body of Bhonaji and that on external  examination he noticed only one contusion 2" in diameter on  the right  temporal region of the head. He made an internal examination and found that there was a depressed fracture of the skull, partly of the right temporal bone and right parietal  bone, and  fissured fractures  of  the  left parietal, frontal  and occipital  bones the  lines of  which were "starting from the border of depressed fracture No. (1) and going  away in  different  bones."  The  witness  stated further that  the depressed and fissured fractures were "due to blow  by some hard and blunt substance, or by a fall from height with  head downwards  on a  hard  substance."  It  is therefore quite  clear that  there was  only one blow on the head which  caused  Bhonaji’s  death,  and  the  High  Court misread the  evidence in  taking the view that more than one blow was given on the head of the deceased.      This has  made it  necessary  for  us  to  examine  the further question  whether the  High Court  was justified  in holding that  both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C. Here again, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W.  2), Smt. Deoki Bai (P.W. 3), SA Ram (P.W. S) and Sukhdev  (P.W. 7)  have been  examined as eye witness of the beating  which was  given to Bhonaji. The High Court has held that  their evidence  was "acceptable",  and that there was "nothing  to cast  any doubt"  on their  evidence.  Smt. Kalawati (P.W.  2) stated  in the trial court that appellant Ninaji gave  two blows  to Bhonaji with a stick, but did not state on  what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a 433 blow with  a stick  on Bhonaji’s  back, near  the neck:  She however admitted during her cross-examination that she could not, explain why she did not mention in her statement to the police that  Ninaji and  Raoji gave  blows on any particular

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

part of Bhonaji’s body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the  head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-in- law of the deceased, being the-wife of Rambhau.  She stated that she had heard the noise, but came out only after feeding her child and  saw that Bhonaji‘ hat fallen down on his face and the appellants were running away. While her statement may go to prove  the presence  of the  appellants at  the place  of incident, it does not prove that both of them dealt blows on the head  of the  deceased. Sri  Ram (P.W.  5)  stated  that appellant Ninaji  gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a ’khunt’ near his  neck. In his cross-examination he admitted that he did not  state before  the police  about the place where the appellants dealt  blows with  their sticks  on the person of Bhonaji. His  statement could  not also  therefore prove the infliction of  blows by  both the  appellants on the head of the deceased.  That leaves the statement of Sukhdev (P.W. 7) for consideration.  He merely stated that while he could not state the  exact number of the accused or their features, he saw that,  out of seven or eight persons, three beat Bhonaji with sticks.  He did  not state  about the infliction of any injury on  the head, by any of the appellants. It would thus appear that  the High  Court could not possibly have reached the conclusion,  on the  basis of  the  statements  of  Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. S) and Sukhdev  (P.W. 7)  that more than one blow was inflicted on the  head of the deceased, or that the one blow which was found there  as a  result of the post-mortem examination was inflicted by the one or the other of the two appellants.      The evidence on record therefore went to show that the, appellants did  not have  the common  intention of  giving a beating to  Bhonaji when  they reached his house for, as has been shown,  they found him sitting outside the house on his ’oota’ but  passed him  by in  search of  Samadhan  who  was dressing his  injuries inside the house. Bhonaji asked Tulsi Ram Chowkidar  to make  a report  and to get ready a bullock cart for  going to  the police  station. It  was  then  that injuries were  inflicted an  his person  by  the  appellants Ninaji and  Raoji. Out of those injuries, one was a forceful blow on  the head  which caused  a  depressed  fracture  and fissures all  over, and  resulted in  the ultimate  death of Bhonai; The  other injuries  were on  the neck  (back side), knees and  the right  elbow of  the deceased and were simple injuries. As  has been shown. there was no reliable evidence on the  record to  prove whether  the fatal blow on the head was caused  by Ninaji or Raoji. The other blows did not fall on any  vital part  of the  body  and,  in  the  absence  of evidence to  establish that  their common  intention was  to cause death  it appears  that the  appellants had the common intention of causing  grievous injury with the lathi and the ’khunt’. They  could therefore  be convicted  of an  offence under s. 325 read with s. 34 I.P.C. and not s. 302 read with s. 34 I.P.C. 434      It may  also be  mentioned that  while the  High  Court stated at  one place  that the  appellants must  be taken to have the  knowledge that  the injury  which they intended to cause to  Bhonaji was  "likely to  result" in  his death, it observed at another place that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to  have known  that  their  act  was  so  imminently dangerous having  regard to  the age  and condition  of  the victim Bhonaji  that their act must in all probability cause

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

death or such bodily injury as is likely to cause death." No categorical finding  has therefore  been given  by the  High Court one  way or  the other. On the other hand, as has been shown, the  liability of  the accused  has not been examined with due  regard to  the facts  and circumstances  which had been  clearly   established  on  the  record  and  to  which reference has been made above.      The appeal  is therefore allowed to the extent that the conviction of  the appellants  Ninaji and  Raoji is  altered from section  302/34 I.P.C.  to  one  under  section  325/34 I.P.C. and  they are  sentenced to rigorous imprisonment for five  years   thereunder.  Their  sentences  shall  run  con currently. V.P.S.                               Appeal allowed in part. 435