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PETITIONER: SUDHIR SAMANNA

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ANOTHER

DATE OF JUDGMENT:       21/10/1997

BENCH: G.T. NANAVATI, M. JAGANNDHA RAO

ACT:

HEADNOTE:

JUDGMENT:                             WITH           (CRIMINAL APPEAL NOS. 297 & 298 OF 1987)                       J U D G M E N T M. JAGANNADHA RAO. J      These three  Appeals arise  out of the Judgment  of the High Court  of Calcutta  in Criminal  appeal No. 159 of 1982 date  21.2.1986.   BY  that  judgment,  the  conviction  and sentence of  eight accused,  has been  confirmed.  Aggrieved thereby Suchir  Samanta (accused  No.4) has  filed  Criminal Appeal No.  296 of  1987 S.K.  Ejahar  alias  Asgar  Hussain (accused No.  9) has  filed Criminal Appeal No. 298 of 1987, Six others, namely, Supriya Parial (accused No. 1), Gajendra Nath Mondal (accused No. 2), Biswanath Bhowmick (accused No. 3) Kalachand  Bharat (accused No. 5), Nemai Das (accused No. 7) and Jagannath Mondal (accused No. 8), filed Special Leave application No.  1656 of  1986 and in that petition by order dated  13.7.1987,  leave  was  refused  for  Nemai  Das  and Biswanath Bhommick (Accused No. 7 and 3 respectively). Leave granted to  other and  the appeal  has  been  registered  as Criminal appeal  No. 297  of  1997,  leaving  Supriya  Paris (accused No.  1), Gajendra  Nath  Mondal  (accused  No.  2), Kalachand  Ghoral  (accused  No.  5)  and  Jagannath  Mondal (accused No.  8) as appellants in Criminal Appeal No. 297 of 1986. We may also state that there was one more accused, (in all nine  initially) before  the Session  Court, namely S.K. Eshak (accused)  No. 6)  but he  died during the pendency of the case  before the  Session Court.  The Sessions Court and the High  Court, therefore,  convicted  and  sentenced  only eight accused.  We have  before us  six  accused,  in  there appeals,  namely,   A4,  A9,  A5  whose  cases  were  argued separately and  A1, A2,  A8, whose  cases stand  on somewhat different footing.      Before the  Session  Court,  Midnapore,  all  the  nine accused stood  charged  with  commission  of  offence  under section 148  I.P.C   section 304  (Part-I) I.P.C.  read with section 149  I.P.C and  section 323 I.P.C  read with section 149. By  his judgment  dated 6.5.1982,  the learned Sessions Judge convicted  the accused  under all the above counts. He sentenced them to suffer rigorous imprisonment for two years for  the   offence  under   section  148   I.P.C.;  rigorous

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imprisonment for  seven years  and  fine  of  Rs.  1000  (in default, rigorous  imprisonment for  one year  more) for the offence under Section 304 Part-I I.P.C read with Section 149 I.P.C.; and rigorous imprisonment for one year under section 323 I.P.C.  read with  section 149 I.P.C. The sentences were to run concurrently.      It is  the prosecution  case  that  in  incident  dated 28.11.1979 Gurudas Mondal (PW 1) suffered injuries while his son Chittaranjan Mondal died.      The prosection  case is  that one  lady Anange Manjari, widow of  lat Bhutnath Mondal (granduncle of Gurudas Mondal, PW 1)  executed a  deed  on  14.9.1975  in  respect  of  the property in  question to  a deity  and  appointed  PW  1  as Shebait and put him in possession of land including plot no. 1855 of 99 decs, in Santipur in West Bengal. Later she filed a suit  for cancellation  of the deed, at the instigation of Ganjendra Mondal  (A2) and  at the  cousins of PW 1. Four of five days  prior to  28.11.1979 (the  day of  the incident), Gurudas   (PW 1) got information that accused Sudhir Samanta (A4), Gajendra  Mondal (A2),  Supriya Paria  (A1), Jagannath Mondal (A8)  and one  Gour Dhuiya had conspired together and were holding  out threats  to the  effect  that  they  would assault  Gurudas   (PW1)  and   his   son   and   thereupon, Chittaranjan Das  (son of  PW 1)  lodged a  G.D.  at  Tamiuk Police Station on 25.11.79.      The  further   case  of  the  prosecution  is  that  on 28.11.1979, at about 10 A.M., Gurudas Mondal (PW 1) with his sons Chittaranjan  Mondal described  as  Chitta  (deceased), Kishore (PW  8), Ashish,  and step  brother Bamandas (PW 10) and labourers (such as Madan Jaria (PW 9). Sudhir Mondal (PW 1), Sahedab  Mondal (PW  12) and other went to harvest paddy in plot No. 1055 measuring 99 decs of Mouza Sartipur (within Tamluk Police  Station), which  was cultivated  by  PW1,  as Shebait of the deity in whose favour the said Ananga Manjari (childless widow  of late  Bhutnath Mondal)  had executed  a deed on  14.9.1975. It  is the prosecution case that at that time, the accused 1 to 9 came and other in a body armed with lethal weapons  like lathi, ballam, katari etc. and directed Gurudas not  to harvest  the paddy.  An  exchange  of  words followed and  Gurudas (PW  1) proceeded  towards the western boundary of  the said  plot and  stood  on  the  all  (which demarcated this plot from the adjacent plot belonging to one Abdul Hussain).  It is  said that there, on the all, Supriya Paria (A1)   delivered  a blow  with lathi which hit Gurudas (PW 1)  on his  right ear  causing bleeding  injury. PW1 set down but  then accused  Jagannath (A8)  and Nemai  Das  (A7) began to assault him with kicks and blows. PW 1 fell down on the land  of Andul  Hussain. At  that time  his  son  Chirta rushed to  that place  to  rescue  his  father  but  accused Biswanath Bhowmick.  As assaulted him with lathi on his head as a  result  of  which  Chista  fell  down  on  the  ground unconscious. Then  accused Nemai  Das  (A7)  also  assaulted Chitta with lathi. At that time PW 2 (Sachin Bhowmick), PW 3 washed the  wounds of  Chitta with  a napkin  in water  in a nearby pond.  The injured  persons were  removed to  Mecheda Bazar in  a cycle  rickshaw van and from there to the Police Station, Tamluk,  PW 15  who was  the Manager of a temporary cinema hall  of which  Chitta was a partner, accompanied. At the Police  Station, PW  1 lodged  a complaint  against  the accused. Chitta  succumbed   to the  injuries  and  died  on 29.11.79 at 5.30 P.M.      Thereafter, a  stated earlier,  the nine  accused  were charged under  section 148;  section 304  Part-I  read  with section 149  I.P.C and  section 323  read with  section  149 I.P.C .  The accused  pleaded not  guilt. The  trend of  the

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cross-examination read  with the  statements of  the accused under Section 313 Cr. P.C was to the effect that the accused were falsely implicated that the alleged incident a few days before 28.11.79  was false  and so far as the cultivation of the land  was concerned  their case  was that Ananga Manjari was in possession and not Gurudas (PW 1).      The learned Session Judge divided the discussion of the evidence into  several parts.  He first  held that,  thought plot no.  1855 was not mentioned in the FIR, the evidence of PWs, 2,  3, 8,  9, 10  and 11  showed that the incident took place in  plot No.  1855 only  where Gurudas (PW 1), his son Chitta and  other went  to harvest paddy. He next considered whether there was convincing evidence on record to show that Gurudas (PW  1) was  in possession and whether he had raised the paddy in that plot. The learned Session Judge considered the prosecution  case and  held that  Gurudas (PW  1) was in possession of  this p-lot  and that it was he who raised the paddy  there.   Thereafter,  the   learned   Session   Judge considered whether  the  incident,  as  alleged,  had  taken place. He  then referred to the relevant evidence, including the medical  evidence, and  used the  words "all the accused persons" when he came to the conclusion that      "all the  accused persons,  came up      to a  body being  armed with lathis      etc. When  Gurudas and his men paid      to head  to the  words of  three of      the accused  person  who  had  come      earlier.  The  evidence  on  record      thus shows  that the accused person      where  members   of   an   unlawful      assembly.  the   common  object  of      which  was   to   commit   criminal      trespass upn  the land which was in      the  possession   of  the   defacto      complaint  and   to   assault   the      defacto  complainant  and  his  men      including his sons. the evidence on      record Shows  that all  the accused      persons  were  armed  with  lathis,      baliams sickle etc."      Thereafter the  learned Session Judge proceeded to hold further as follows:      "Considering the evidence on record      and the  circumstance of  the case,      I,  therefore,   hold  that     the      prosecution has convincingly proved      beyond all  reasonable  doubt  that      the accused  persons, who more than      five in number, assembled together,      that the  assembling came  upon for      the purpose  of committing criminal      trespass and to assault the defacto      complainant and his mens, that some      members of  the assembly used force      or violence,  that  such  force  on      violence   was    used    in    the      prosecution of  such common  object      and the  accused persons were armed      with deadly  weapons at the time of      the incident."      He finally concluded.      "The evidence  on record  has  also      proved  convincingly   beyond   all      reasonable  doubt   that  all   the      accused persons  were members of an

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    unlawful  assembly   and  that  the      offence under  section  304  Part-I      and   section    323   I.P.C   were      committed by  some members  of such      as such (six) as the members of the      assembly knew  to be  likely to  be      committed  in  prosecution  of  the      common object of that assembly."      ON that  basis, he  convicted  the  eight  accused  (A6 having  died   earlier)  and  sentenced  them  as  mentioned hereinbefore.      In the appeal preferred by the eight accused before the High Court  the  aforesaid  conviction  and  sentences  were confirmed against  all the  accused. The high Court rejected the contention  that the incident die not take place in plot No. 1855 and observed that the omission of the plot No. 1855 in the  FIR was  immaterial, it held that though the FIR did not specifically mention as to who was assaulted by whom.      "but nonetheless,  it is absolutely      plain and  clear from  the FIR that      Gurudas and  Chitta were  assaulted      by the  appellants. and  convincing      the   circumstances   of   assault,      namely, that  the  assailants  came      together armed  with  members,  non      disclosure of  the individual  part      taken by  the different  assailants      is  not  a  substantial  defect  to      affect the case of the prosecution.      Sachin (PW  2) and Panchanan (PW 3)      were independent witnesses and they      came from  the neighbourhood, after      the incident  started and  that the      evidence showed  that there  was  a      unlawful assembly  and  its  object      was to  commit trespass and assault      and in prosecution thereof.      Some  members   of   the   assembly      voluntarily caused  hurt to Gurudas      while some  others assaulted Chitta      which resulted in his death shortly      thereafter."      On these findings, the appeal was dismissed.      Learned senior  counsel  for  Sudhir  Samanta  (A4)  in Criminal Appeal  No. 296  of 1987  and for  S.K Ejahar alias Asgar Hussain  (A() in  Criminal  Appeal  NO.  298  of  1987 contended that the learned Session Judge as well as the High Court ought  to have held that there was no evidence against these appellants that they with other accused formed into an unlawful assembly  with  the  common  object  of  committing trespass and  assault and further that there was no evidence that they  had any  motive or  were carrying any weapons nor that they  hit   PW  1  or  Chitta  with  the  said  weapons resulting injury  to PW 1 and death of Chitta. Even assuming they were present at the time of the incident somewhere near the scene  of the offence, it could not be assumed that they had become  part of  the unlawful  assembly and  shared  the common object of committing the offence of criminal trespass and  assault,   in  fact,  there  were  a  large  number  of villagers, even according to the prosecution - and there was no material  to distinguish  these two  appellants from  the rest of  the crowd  and include  them in the list of accused along with those against whom specific acts where alleged.      Learned counsel  for the  four other appellants, namely A1, A2,  A3 and  A8 in  Criminal appeal  Nos.  297  of  1987

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contended that the infirmity in the prosecution case against Kalachand Ghorai (A5) was no different from the infirmitives against accused  A 4  and A 9. Even assuming A ( was present on the  scene, his  presence was  not different from that of the other  villagers, there was no proof that he was part of the unlawful  assembly and  in  fact  no  specific  act  was attributed to  him. So far as the others, A1, A2 and A8 were concerned, learned  counsel made  a submission  that firstly the evidence  adduced was  not sufficient  to treat  them as part of  the  unlawful  assembly  or  that  they  had  taken specific part  in the  actual incident of criminal  trespass and  assault   on  PW  1  and  Chitta  and  alternately  the conviction against  A1, A2 and A8 was liable to be converted into one  under Section  304 Part-II I.P.C in as much as the ingredients  of  Section  304-Part-I  I.P.C  have  not  been fulfilled.      On the  other hand,  learned counsel for the respondent contended that  though there  was no specific evidence as to the role  of A4,  A9, and  A5, still there was evidence that they were  members of  the unlawful  assembly and  that  was sufficient to maintain their conviction and sentence. It was not necessary  to prove  any overt  act on  respect of every person who  was a  member of an unlawful assembly. So far as accused A1,  A2 and  A8 were  concerned  they  were  rightly convicted and  for the  specific acts attributed to them. In particular, their  hitting Chitta  on the "head" brought the case under  section 304  Part I  and therefore  the plea  to convert the  conviction into  one under  section 304 Part-II should not be accepted.      We have  already extracted  the relevant  portions from the judgments  of the  learned Sessions  Judge and  the High Court and  the word  underlined by us in the said paragraphs show that  all the accused A1 to A9 were dealt with together thought at  the same  time it was also stated that there was proof that  "some of these accused" have dealt  the blows on PW 1 and Chitta. We have, therefore, to consider whether the contention of  the  appellants  that  the  approach  of  the Session Court  and of  the High Court in this behalf was not correct, has any merit.      We have  heard the  submission of  the learned  counsel limited to  these aspects  and have  been taken  through the evidence.  Ordinarily,   this  Court  does  not  review  the findings of fact if based on evidence considered by the High Court and  the  Sessions  Court  but  where  this  Court  is satisfied that  the courts  have not considered the evidence of the witness from the proper perspective or that they have gone by  general conclusions drawn from vague or generalised evidence, it  may sometimes  become necessary to go into the evidence to  find out  if the approach, having regard to the facts of  the case, was proper. In the present case, we find that no  effort was  made by the Sessions Court and the High Court to  find whether  accused A4,  A5 and  A9 were  at all members of an unlawful assembly and we feel, therefore, that the High  Court and  Session court  ought to  have gone into these aspects in greater detail.      While it  is true that before a person could be held to be a  member of  an unlawful  assembly, it  is not necessary that he  should have  done some  overt act or guilty of some omission in  pursuance of  the common object of the unlawful assembly,  it  is  well  settled  that  first,  it  must  be established that  he was  a member of the unlawful assembly. When as  in this  case, a  large number  of  villagers  were present at  the scene  of the  offence and common object and specific acts  were attributed  only to a few among the nine accused and  there was  nothing so far as A4, A9 and A5 were

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concerned as  regards common  object or overt acts or motive were concerned, question arises whether there was proof that A4, A9  and A5  went there  with the  same common  object as those accused  to whom  overt acts  were attributed.  It has been held  that in  such a  context and with a view to guard against convicting  person who were not part of the unlawful assembly, it  is permissible  to consider  the nature of the gathering, how  they assembled  and what  weapons they  were armed with how they proceeded and further the part played by them.      At the  outset, we  may  point  out  that  the  medical evidence of  PW 13, who examined PW 1 and Chitta on 28.11.79 at the Tamluk B.D. Hospital initially, is to the effect that PW 1  sustained a single lacerated injury over the centre of the scalp  measuring 2" x 1/2" x 1/2". It appeared to him it was single  injury, PW  1 another Doctor who examined him at 11.15 P.M.  on 28.11.79  when chitta  was  brought  to  SSKM Hospital, said   Chitta  was semi-conscious.  Chitta died at 5.30 P.M  on 29.11.79  and PW  20 who  conducted  the  post- morterm said that the found on stitched would over the vault of the  skull one  linear crack-fracture  over the middle of the left  parental bone to down left parental region and one abrasion over  the left  shoulder and  that death  might  be homicidal. In  other words, the medical evidence reveals one simple accerated  injury on  the right         PW  1 and two injuries on  Chitta one  on the  skull and  another  on  the parietal region as stated above and one abrasion.      So far  as the  oral evidence  is concerned  PW 4, PW3, PW6,  and   PW7  were  declared  hostile.  Among  the  other witnesses, we  have of  course the evidence of PW 1 Gurudas, who is  an injured  witness,  and  the  evidence  of  Sachin Bhowmick PW2  and Panchanan  Bhowmick PW3.  PWs2 and  3 have been rightly  treated as  independent witnesses,  they  were ploughing the  adjoining fields and they were eye witnesses. PW.1’s relatives are PW8, Kishore who is the some of PW1 and P.W. 10,  step-brother of  deceased; Labourers  employed  by P.W. 1  are PW 9, (Madan Jena), PW1 in this evidence, refers to the  manner in  which disputes  regarding land  came into existence and  speaks to  his  possession  of  the  plot  in question. He  says that  Gajendra Nath  Mondal (A2)  is  his cousin and  it was  Gajendra who  got Ananga Manjari to file the suit.  4/5 days before 28.11.79, he got information that Sudhir  Samanta   (A4),  Gajendra   (A2)  Supriya  (A1)  and Jagannath (A8)  had conspired  together and had been holding out threats  to the  effect that they would assault PW 1 and others. His  son Chitta lodged as S.D. in the police station on 25.11.79.  PW1 knows  all the  accused, they  are his co- villagers. A1  is the  son-in-law of  Gajendra brother (i.e. A2’s brother).  A8 is  also related  as his  (PW1’s) cousin. Accused Biswanath  (A3) cultivates  land for  Gajendra (A2). PW1 says  that accused  persons are members of S.U.C. party. thus, it  is clear that A2, A8, A3 are related to PW 1 while A3 and  A8 and  A2’s supporters.  As regards the incident on 28.11.79, PW1  says that  first A1, A8 and A2 came on to the field 1855 and directed PW 1 not to harvest the paddy but to have the  dispute amicably  settled  by  adjudication.  (The Civil Suit  was already  pending), PW1  says, he did not pay need and  in fact  told them  he would harvest the paddy and then he  started harvasting  the paddy.  Then A1,  A8 and A2 left and  about 5  minutes afterwards came back with all the remaining accused and "several others" whom, he did not know with lathi,  ballams, katani and sickle and directed PW1 and others not  to harvest,  There was hot exchange of words and when PW1 proceeded to the western boundary, and stood on the all, A1 hit him with a lathi. It hit his right ear causing a

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bleeding injury.  PW1 sat down on the all and then Jagannath (A8) and  Nemai (A7) began to kick him and hurled blows. PW1 fell down  into the  rescue of  PW1. At  that time Biswanath (A3) inflicted  a lathi  blow on  Chitta’s head. Chitta fall down unconscious.  Thereafter Nemai (A7) hurried a blow with lathi on Chitta.      Though PW1  speaks of  conspiracy 4-5  days before  the incidence to  which Sudhir  Samanta (A4)  is said  to  be  a party, we  find that  later section  120-B was  dropped. The case again  A4 was  that he  was  a  member  of  a  unlawful assembly. From  the evidence  of PW1  set out above, it does not show  why the  A4, A5  and A9  were treated  as  accused rather than  being treated  as part  of several  others  and there  is  nothing  in  the  evidence  either  expressly  or otherwise to  say that  A4, A5 and A9 came there on 28.11.79 with the  common object  of trespass  and assault on PW1 and Chitta on the fateful day.      PW2,  Sachin    Bhowmick,  ploughs  an  adjacent  Land, Accused Biswanath  (A3) is  his cousin.  He say that when he was in  his field  at 9/9.30 A.M he saw PW1 harvesting paddy with his  brother PW  10 &  sons and PW1 cultivated the land that year.  At that  time Supriya  (A1), Jagannath  (A8) and Gajendra (A2)  came there  and asked  PW1 not to harvest the crop. PW1  did not  pay heed  and continued  harvesting. The above persons  left and came back after 5 minutes along with accused persons  and along  "with some  others". Lathis were "in the hands of 2 of 3 persons". This shows that there were no ballams,  sickles or  other weapons  and  that  even  the lathis were  there only with 2 or 3 persons, A1 hit PW1 with lathis which  injured the  PW1’s right  ear and he sat down, and the  "5 or  6 persons"  amongst  the  persons  began  to assault PW1  with kicks  and blows.  Chitta rushed  and then Biswanath (43)  hit him  on his  head  with  lathi.  Accused persons left behind them ‘one or 2 latins". (In fact, police recovered one  big lathi  and one small lachi from the scene of offence). PW1 stated that Chitta was assaulted with a big lathi. In  cross-examination, he  stated  that  he  did  not recollect whether he stated before the Investigating Officer that 5 or 6 persons also assaulted PW1 with kicks and blows. He could  not also  recollect whether  he stated  before the Investigation Officer  that at first Jagannath (A8), Supriya (A1) and  Gajendra (A2) came to the spot. Thus except to say that accused  A4, A6  and A9  came there  along  with  other accused and  villagers, PW1 could not say whether A4, A3 and A9  had  come  there  with  any  common  objective  such  as committing trespass  and assault  as contemplated by some of the other accused.      PW3 is the brother of PW2 and cultivates a neighbouring piece of  land. He  knows all the accused. Accused Biswanath (A3) is  his cousin.  He refers to the land dispute and says that initially  Jagannath, Gajendra and Supriya (A8, A2, A1) came and  asked PW1 not to harvest but PW1 did not agree and proceeded to  go ahead  with the  harvesting. Then the above said three  persons left  and came  there late  with all the accused persons  "being armed  with lathis". (This conflicts with the  evidence of  PW2 that  only 2  or 3  persons  were carrying lathis. He also speaks to the fact that the accused persons asked  PW1 to  await the  adjudication of  the civil dispute but  PW1 did  not agree.  Then Gajendra (A2) ordered Assault and thereupon Supriya (A1) hurled a lathi blow which hit PW1  on his  right ear,  and he fell down. Chitta rushed there and  Biswanath (A3)  hit him with a lathi on his head. He fell  down unconscious.  The  accused  persons  ran  away later. Before  the Investigation  Officer, he  did not state about Supriya, Jagannath and Gajendra (A1, A8 and A2) coming

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to PW1 earlier.      So, even  this evidence of PW3 is general and vague and it does  not show that A4, A5 and A9 had come there with any common objective  and for the purpose of forming an unlawful assembly to trespass and to assault PW1 and Chitta. So far  a the  evidence of  the labourers  PW9, 11 and 12 is concerned, neither the Sessions Court nor the High Court has relied upon any specific part of their evidence to show that A4, A5  and A9  had come  to the  scene of incident with the common objective of trespass and assault.      The case  of conspiracy 4 or 5 days prior to 28.11.1979 which could bring the case under section 120-B, based on the G.D. report  of Chitta,  referred to  by PW‘,  -having  been given up,  we have  no positive material to show that A4, A5 and A9  came there with the common objective of trespass and assault as  members of  an unlawful assembly and not as part of the group of other villagers present.      For the  aforesaid reasons,  we are of the view that it will not  be safe  to treat  Sudhir Samata  (A4),  Kalachand Ghorei (A5) and S.K. Ejahar Elias Asgar Hussain (A9) as part of the  unlawful assembly  and make  them vicariously liable for the  overt acts  of other accused which resulted into an injury to  PW1 and death of Chitta. We, therefore, set aside their conviction  under all  the provisions under which they were charged and acquit them.      We  shall   next  take  up  the  question  whether  the prosecution has established the guilt of A1, A3 and A8 under section 304  Part-I I.P.C.  or whether  the facts proved can only bring their case under section 304 Part-II I.P.C.      We  shall   once  again  first  refer  to  the  medical evidence. PW13,  Khatua who examined Chitta at 1.p.m. in the Taluk hospital  on 28.11.1979  stated that  he found one big lacerated injury  over the  centre of  the scalp and at that time, the patient complained of severe head ache. That means Chitta had rehained consciousness. Dr. A.K. Rakshit, PW14 of S.S.K.M  Hospital,   Calcutta  (who   examined   Chitta   at 11.15.p.m.  on   28.11.1979  said   that  Chitta  was  semi- conscious, Chitta  expired at 5.30.p.m. on 29.11.1979. (i.e. nearly 32  hours after the incident). Dr. P.B. Das PW20) who conducted the  post-mortem examination  on Chitta on 3.12.79 stated that  he found  one stitched  wound over the vault of the skull,  one linear crack fracture over the middle of the left parietal  bone down left parietal region. He also found one abrasion  over the  left shoulder.  He said  that  dealt "might  be  homicidal  an  nature"  and  the  injuries  were sufficient in the ordinary course to cause death.      PW1, father  of Chitta,  stated that initially Supriya. Jayanath and Gajendra (i.e. A1, A8 and A2) came for the plot and directed him not to harvest paddy and have it settled by adjudication. (The Civil suit was already pending in Court). PW1 said  no head.  When the  accused again returned after 5 minutes, they  again directed  him not to harvest the paddy. PW1 did  not agree.  Then there  was not  exchange of words, initially PW1  was hit, later Chitta came there and gave one blow on  his head  with a  lathi. Later  A3,  Biswanath  hit Chitta on  his head.  Nemai (A7) hit Chitta on his body. PW2 says only 2 or 3 of the accused carried lathis. According to him even  after the accused carried lathis. According to him even after  the accused  returned after  5 months  after the first incident,  they asked PW1 not to harvest and await the adjudication by Civil Court. PW3 says that after the accused went back  and came after 5 minutes even then they asked Pw1 not to cut the crop but await the adjudication in Court. PW2 and PW3 also say that one blow was given by A1 and one by A3 on the head of Chitta and PW7 gave blows on his body. Chitta

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lost  consciousness,   but  regained  it  on  way  to  Taluk hospital, and  later in the right, he was semi-conscious and died next  evening on  29.11.79 at  5.30 p.m.  This  is  the relevant material on this aspect.      To start  with, there  is no  charge under  Section 302 I.P.C. The charge itself was under Section 304 Part-I. Hence the  question  of  accused  having  common  intention  -  as required for  the third  clause of  Section 300  I.P.C. - to cause bodily  injury to  Chitta and  intending  such  bodily injury as  is sufficient in the ordinary course of nature to cause  death,   has  to  be  excluded,  even  going  by  the prosecution case.  Therefore the  evidence  of  the  doctor, PW20, cannot  help in  bringing the  case  under  Part-I  of Section  304  I.P.C.  Further,  the  circumstance  that  the accused pleaded  with PW1,  father of  deceased Chitta, more than once to have the land dispute adjudicated through Court because the  matter was  already in  Court, the fact that A1 gave only  one blow  with lathi though on the head of Chitta and stopped there and that later A3 hit Chitta with lathi in the parietal  region and  A7 on  the body, and the fact that Chitta gained  consciousness soon  and was alive for over 32 hours after  the incident,  - all  these facts  lead to  the inference that  each of  these  accused  did  not  have  any intention of  causing death or of causing such bodily injury as was  likely to cause death. They can only be imputed with knowledge that  if force  was used  it was  likely to  cause death. Therefore, the case, in our view, falls under Section 304 Part-II and not under Section 304 Part-I I.P.C.      For the  aforesaid reasons, we modify the conviction of A1, A3  and A8  to one  under Section 304, Part II read with Section 149  IPC and  award them a sentence of 5 years. They are ordered  to  surrender  to  custody  to  serve  out  the remaining part of the sentence.      A4, A5  and A9  are acquitted of all charges as already stated. Their bail bonds are ordered to be cancelled.      Appeals allowed as stated above.