Madhya Pradesh High Court
Chain Singh And Ors. vs State Of M.P. on 9 November, 2001
Equivalent citations: 2002CRILJ1870
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT Rajeev Gupta, J.
1. Appellant Chain Singh stands convicted under Sections 302 and 323 read with 34, IPC whereas other three appellants Bhuwan Singh, Sunder Singh and Sumendra Singh stand conviction under Sections 302 read with 34 and 323 read with 34, IPC, with sentences of imprisonment for life and rigorous imprisonment for 1 year each respectively, vide impugned judgment dated 2-5-1989 passed by Sessions Judge, Shahdol in S.T, No. 5/88.
2. The factual matrix of the case, in a narrow compass, is that on the fateful night of 28-7-1987, at about 9.00 p.m. deceased Ishwardeen and prosecution witnesses Bhaiyalal, Jiyalal, Ram Nivas Sharma, Shambhoo Prasad, Kunwarlal, Mandal Singh joined a religous proceession in the village of Darsagar. When the said procession reached, 'Daddi Ram Ka Chowraha' Ishwardeen, Bhaiyalal, Jiyalal and Ram Nivas, feeling thirsty, went to the house of one Sitaram situated at a distance of few paces from the said Chowraha, for drinking water. In the meantime, the religious procession proceeded ahead. When deceased, Iswardeen and other persons were on their way to rejoin the procession after taking water, all the four accused persons who were hiding themselves behind the nearby bushes, suddenly appeared and accosted Ishwardeen. Accused Chain Singh was carrying a tangia (a sharp edged weapon), accused Sumendra Singh had a cycle chain, whereas the two other accused persons Bhuwan Singh and Sunder Singh were armed with lathis. Accused Chain Singh dealt a tangia blow on the head of Ishwardeen, as a result of which he fell on the ground and became unconscious. Bhaiyalal and Jiyalal too were assaulted by accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh by means of cycle chain and lathis. All the accused persons thereafter fled away from the place of occurrence. Injured Ishwardeen was taken to Police Station Bhalumara, where Bhaiyalal lodged the First Information Report giving rise to the registration of a case at Crime No. 129/87. Injured Ishwardeen was sent to Primary Health Centre, Kotma for his treatment, where he succumbed to his injuries next day on 29-7-1987. Other injured persons Bhaiyalal and Jiyalal were also sent to Primary Health Centre, Kotma where they were examined by Dr. V.D. Pandey for their injuries. After perfoming the necessary formalities of proparting inquest etc., the body of Ishwardeen was sent for post mortem examination. The Autospy Surgeon found one stiched wound on his parietal region with corresponding fracture of parietal bones, as detailed in post mortem report Ex. P/9. In his opinion, the cause of death of Iswardeen was shock and haemorrhage resulting from the injuries to the vital organ (brain) which were ante mortem and were sufficient in the ordinary course of nature to cause death. During the course of investigation, the accused persons were arrested and in purusance to the informations given by them under Section 27, of the Evidence Act, a tangia, a cycle chain and lathis were seized from accused Chain Singh, Bhuwan Singh, Sunder Singh and Sumendra Singh respectively. Police Bhalmura, after completing the investigation of the case, charge sheeted accused persons Chain Singh, Bhuwan Singh, Sunder and Sumendra Singh for the. alleged commission of the offences punishable under Sections 302, 323 and 324 read with 34, IPC.
3. The accused persons abjured their guilt and pleaded false implication to the charges framed by the trial Court under Sections 302 and 323 read with 34 of the IPC.
4. At the trial the above charges against the accused persons were sought to be proved on the evidence of PW/1 Dr. V.D. Pandey, PW/2 Jyoti Prakash Mishra, PW/3 Bhaiyalal, PW/4 Jiyalal, PW/5 Ram Nivas Sharma, PW/6 Shambhoo Prasad, PW/7 Dadibal Singh, PW/8 NihoreLal Kewat, PW/9 Dr. B.M. Shrivastava, PW/10 Kunwarlal, PW/11 Mandal Singh, PW/12 Daddiram, PW/13 Daddanson, PW/14 Sukhandan and PW/15 - J. D. Bhonsle. Of these, PW/12 Daddiram and PW 13 Daddanson did not support the prosecution case and were declared hostile.
5. The accused persons also examined DW/1 Gogali Ramsant and DW/2 Bhagat Gond, in their defence.
6. The trial Court, on the ocular and medical evidence led by the prosecution at the trial, found it proved that deceased Ishwardeen had sustained one incised wound on his head region with corresponding fracture of his parietal bones in the night of 28-7-1987, which led to his death next day on 29-7-1987 and that his death was homicidal in nature. Similarly, it was also found proved that injured persons Bhaiyalal and Jiyalal had also sustained multiple external injuries on their person, which could have been caused by means of hard and blunt objects. Relying upon the eye witness account of PW/3 Bhaiyalal, PW/4 Jiyalal, PW/5 Ram Niwas, PW/6 Shambhoo Prasad, PW/10 Kunwarlal and PW/11 Mandal Singh, the trial Court found accused Chain Singh guilty of causing the said incised wound on the head region of Ishwardeen, which ultimately resulted in his death and other accused persons Bhuwan Singh, Sunder and Sumendra Singh guilty of causing simple hurt by means of cycle chain and lathis on injured persons Bhaiyalal and Jiyalal. On the above findings, the trial Court convicted and sentenced accused persons Chain Singh, Bhuwan Singh, Sunder Singh and Sumendra Singh as mentioned above.
7. We have heard Senior Counsel Shri Rajendra Singh, for the appellants and Shri Anurag Choudhary, Government Advocate, for the State.
8. The learned Senior Counsel for the appellants, Shri Rajendra Singh, made the following three fold submissions :-
(i) The trial Court has erred in recording the appellants' conviction on the eye-witness account of PW/3 Bhaiyalal, PW/4 Jiyalal, PW/5 Ram Nivas, PW/6 Shambhoo Prasad, PW/10 Kunwarlal and PW/11 Mandal Singh, as their evidence suffers from serious infirmities ;
(ii) Even if accused Chain Singh is found guilty of causing solitary incised wound on the head region of deceased Ishwardeen, his above act in the facts and circumstances of the present case would not amount to the offences of 'murder' punishable under Section 302, IPC and at the most would make him liable under Section 304, IPC, and.
(iii) The conviction of other accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh under Section 302 with the aid of 34, IPC cannot be legally sustained, as the common intention which they shared with their co-accused Chain Singh was not to cause death of Ishwardeen, but was only to cause grievous hurt on him.
9. Shri Choudhary, the learned Government Advocate, on the other and supported the impugned judgment of conviction and contended that of the six eye witnesses relied upon by the trial Court, two namely; PW/3 Bhaiyalal and PW/4 Jiyalal, are injured eye witnesses whose presence at the time of the incident is beyond any possible dispute. The learned State Counsel repelling the second submission of the learned counsel for the appellants contended that the use of a heavy and sharp edged weapon 'Tangia' by accused Chain Singh and causing of injury on his head region, though only one, with so much, force that it resulted in fractures of both of his parietal bones do not leave any room for doubt that accused Chain Singh while causing the said injury on the head region of deceased Ishwardeen had intended to cause his death and as such, his above act would not amount to anything short of 'murder' and would be punishable under Section 302, IPC only. As regards the third submission the learned State Counsel submitted that as all the accused persons had participated in the incident of assault on Ishwardeen, Bhaiyalal and Jiyalal, accused Bhuwan Singh, Sunder Singh and Sumendra Singh have been rightly convicted by the trial Court under Sections 302 read with 34, IPC.
10. The facts that deceased Ishwardeen had sustained an incised wound on his head' region with corresponding fractures of his pariental bones in the night of 28-7-1987 and that he succumbed to his injuries next day on 29-7-1987 and that his death was homicidal in nature were neither in dispute at the trial nor are under challenging before us in this appeal. Similarly, the fact that injured persons Bhaiyalal and Jiyalal had also sustained external injuries, though simple in nature, in the same incident, has also not been seriously challenged. That apart, there is overwhelming ocular and medical evidence on record to establish the above facts beyond and shadow of doubt. We, therefore, uphold the findings recorded by the trial Court in that behalf.
11. On a thorough scanning of the trial Courts judgment we gather that the appellants conviction is found on the eye witness account of PW/3 Bhaiyalal, PW/4 Jiaylal, PW/5 Ram Nivas, PW/6 Shambhoo Prasad, PW/10 Kunwarlal and PW/11 Mandal Singh. Of these PW/3 Bhaiyalal and PW/4 Jiyalal are injured eye witnesses, who sustained injuries in the same incident.
12. PW/1 Dr. V.D. Pandey examined PW/3 Bhaiyalal, on 29-7-1987 and found the following injuries on his person :-
(i) Bruise on the postero-lateral aspect of the left fore-arm 2" x 2", 6" above the wrist joint;
(ii) transverse bruise on the posterior aspect of the right side on the scapular area 8" x 1", just below the crest of spine or right scapula;
(iii) bruise on the posterior aspect of the back 1" x 1", 7" above the crest of ilaic;
(iv) Bruise on left side of of scalp 2" x 1/2";
(v) Abrasion on the medial side of the index finger of right side 1/6" x 1/6.
13. On the same day, PW/1 Dr. V. D. Pandey examined PW/4 Jiyalal also and found the following injuries on his person ;
(i) Bruise on the frontal area of the skull on the right side 1" x 1/2";
(ii) Bruise on the left forearm medially placed 1 1/2 x 1", 2" below the elbow joint;
(iii) complained pain in right side of the back;
(iv) Bruise on the lower part of the right ear 1/2 x 1/2";
(v) Vertical bruise on the postero-lateral aspect of the right thigh 5" x V2" in middle area.
14. PW/3 Bhaiyalal and PW/4 Jiyalal have categorically stated that they had sustained these injuries in the night of 28-7-1987 at the hands of the accused. In the First Information Report Ex. P/10 promptly lodged by PW/3 Bhaiyalal within 2 hours of the incident, it is categorically mentioned that Bhaiyalal and Jiyalal had also sustained injuries in the same incident. In fact in the cross-examination of PW/3 Bhaiyalal and PW/4 Jiyalal, the defence has not even suggested that these witnesses sustained multiple external injury in some other incident.
15. Thus, it is established beyond doubt that PW/3 Bhaiyalal and PW/4 Jiyalal had sustained multiple external injuries at the hands of the accused persons in the same incident, wherein deceased Ishwardeen sustained an incised wound on his head region which resulted in his death next day. Now, we shall examine the evidence of PW/3 Bhaiyalal and PW/4 Jiayalal in regard to the assault on deceased Ishwardeen.
16. PW/3 Bhaiyalal, in his deposition in the Court, has categorically stated that on the fateful night of 28-7-1987 a religious processsion consisting of 20-25 villagers including himself, deceased Ishwardeen and prosecution witnesses Ram Nivas Sharma, Shambhoo Prasad, Kunwarlal and Mandal Singh was taking round of the village. He further stated that when the said procession reached "Daddi Ram Ka Chowraha', he deceased Ishwardeen, Jiyalal, Shambhoo Prasad, Lekhanram, Ram Nivas, Rambhuvan and Jitendra, went to the house of Sitaram for drinking water and the other persons in the religious procession proceeded ahead. It is further in his evidence that when they were on thier way back from the house of Sitaram to rejoin the procession, accused persons Chain Singh, Sumendra Singh, Sunder Singh and Bhuwan Singh came out of their hiding and started abusing them. He further states that accused Chain Singh dealt a blow by means of a tangia on the head region of Ishwardeen and other accused persons Sumendra Singh, Sunder Singh and Bhuwan Singh assaulted him and Jiyalal by means of cycle chain and lathis. On hearing their hue and cry, the other persons of the procession rushed to the place of occurrence and at this juncture, the accused persons fled away. Injured Ishwardeen was taken on a cot to the Police Station where this witness lodged First Information Report Ex. P/10. Ishwardeen succumbed to his injuries next day in the Hospital.
17. Though he was subjected to a very lengthy cross-examination, running into more than 9 pages, but nothing substantial could be elicited by the defence which may render his evidence unworthy of credence. On perusing his cross-examination, we find that the entire cross examination in para 10 of his statement was devoted in establishing the relationship between the deceased and the prosecution witnesses. Similarly, para 11 was devoted in establishing the topography of the place of occurrence. The thrust of the cross-examination of this witness, in paras 12 and 13, appears to be towards the time taken by the villagers in taking injured Ishwardeen to the hospital and to find out why services of the private Doctor, available in the village, were not taken for treatment of Ishwardeen. Efforts were also made to suggest that the First Information Report was in fact not recorded at the time at which it purports to have been recorded. In paras 14 and 15, the witness was grilled in regard to the steps taken by the relatives of deceased Ishwardeen during his treatment in the hospital and after his death on the next day. In paras 16 and 17, the relationship of the accused persons and the composition of the religious procession was the subject matter of the cross-examination. The defence again devoted para 18 is establishing the distance between the place of occurrence and the temple from where the religious procession started and the time spent by them in covering that distance. In paras 19 to 22, the cross-examination was focussed towards the minute details of the incident, such as the number of blows dealt by the accused persons, the impact of the injuries sustained by the deceased and the other injured persons, the sequence of assault on them; the duration of the assault; the distance between the victim and the accused, the size of the weapon used by the accused persons, the position of the victims and the accused persons during incident, the direction in which the accused persons fled away, the manner in which injured Ishwardeen was taken to the hospital, and, the omission of the minute details in the First Information Report - Ex. P/10. In the last two paragraphs i.e. paras 23 and 24, the defence case was put to the witness who emphatically denied the defence suggestions.
18. Next is the evidence of other injured eye witness PW/4 Jiyalal, who happens to be real brother of PW/3 Bhaiyalal. In the deposition in the Court, PW/4 Jiyalal, deposing in line with the evidence of the other injured eye witness PW/3 Bhiayalal, stated that on the fateful night they stayed back for drinking water at the house of one Sitaram and the religious procession proceed ahead. He further states that when they were on their way back to rejoin the procession they were surrounded by the accused persons, who abused all of them and then accused Chain Singh dealt a blow by means of a farsi (tangia) on the head region of Ishwardeen resulting in bleeding injury. It is further in his evidence that at this juncture, accused Sumendra Singh assaulted Bhaiyalal by means of a chain and accused Sunder Singh and Bhuwan Singh dealt lathi blows on him. Their hue and cry attracted other members of the religious procession and seeing them rushing towards the place of occurrence, the accused persons fled away. According to his version also, injured Ishwardeen was taken on a cot to Police Station Bhalumara, where another injured Bhaiyalal lodged the First Information Report about the incident. He further stated that injured Ishwardeen succumbed to his injureis next day in the hospital.
19. This witness appears to be lucky enough at the time of the incident, as none of the injuries sustained by him in the said incident proved fatal. He was lucky again during his cross-examination also as his grilling was only four pages long as compared to that of PW/3 Bhaiyalal. He stood firm in his cross-examination and his evidence could not be shaken at all. Paras 5, 6 and 7 of his cross-examination were devoted to the topography of the village and the place of occurrence, whereas in paras 8 and 9, the focus was on the minute details of the incident of assault such as the number of blows dealt by the accused persons and the duration of the assault. In paras 10 to 13, the attention of the witness was drawn towards the unnecessary post incident details such as the name of the boy who broke the news of the incident at the house of Ishawardeen from whose house and who brought the cot on which injured Ishwardeen was taken to the hosptial, who offered them water at the house of Sitaram, and, the time of their examination by the Doctor at Kotma hospital. In para 14, he was confronted with his diary statement Ex. D/l in regard to some omission of minor nature. In the same para, the witness categorically stated that there was no prior ill will between him and the accused persons. In the last para of his cross-examination i.e. para 15, it was suggested by the defence that he was falsely deposing against the accused persons on account of the supposed inimical background between them. The witness emphatically denied the above defence suggestion.
20. From the above scrutiny of the evidence of the two injured eye-witnesses PW/3 Bhaiyalal and PW/4 Jiyalal, it emerges out that on the fateful night Ishwardeen and these two witnesses along with other villagers were taking round of the village in a religious procession and when they reached Daddi Ram Ka Chowraha Ishwardeen, Bhaiyalal, Jiyalal, Shambhoo Prasad, Lehanram, Ram Nivas Sharma, Ram Bhuvan and Jitendra stated back to take water at the house of Sitaram and the other members of the procession proceeded ahead. When these persons, after taking water at the house of Sitaram, were on their way back to rejoin the procession, the accused persons who were hiding themselvs behind bushes suddenly came out and started aubsing them. Accused Chain Singh was armed with a 'tangia', whereas accused Sumendra Singh had a cycle chain and the two other accused persons Sunder Singh and Bhuwan Singh were carrying lathis. Accused Chain Singh dealt a tangia blow on the head region of Ishwardeen resulting in a bleeding injury whereas accused Sumendra Singh caused injuries by means of the chain on Bhaiyalal and accused persons Sunder Singh and Bhuwan Singh dealt lathi blows on Bhiayalal and Jiyalal. PW/1 Dr. V.D. Pandey found five external injuries each on Bhaiyalal and Jiyalal on their examination on 29-7-1987. Ishwardeen was also found to have sustained one incised wound on his dead region with corresponding fractures of both his parietal bones. The presence of injuries on PW/3 Bhaiyalal and PW/4 Jiyalal establish their presence at the time of the incident beyond any shadow of doubt. Since the accused persons were, known to the witnesses, there is no question of any mistaken identity. That apart, the names of the accused persons and the description of the respective weapons used by them in the assault were distinctly mentioned in the promptly lodged First Information Report within two hours of the incident by injured eye-witness PW/3 Bhaiyalal after covering a distance of about 10 kilometers. We do not find any such material on record which could have motivated these injured eye witnesses to spare their Ireal assailants and to falsely implicate accused persons Chain Singh, Sumendra Singh, Sunder Singh and Bhuwan Singh as 'their assailants. The mere fact that both these injured eye witnesses are real broth-jers and deceased Ishwardeen was also related to them is not, by itself, sufficient to discard their otherwise cogent and reliable evidence. We are, therefore, satisfied that the trial Court has rightly believed their evidence in holding the accused persons guilty of causing the injuries found on deceased (Ishwardeen and injured persons Bhaiyalal and Jiyalal.
21. Then is the evidence of other eye witness PW/5 Ram Nivas Sharma, PW/5 Mandal Singh, who all have stated in one voice that on the fateful night accused Chain Singh dealt tangia blow on the head region of Ishwardeen, whereas accused persons Sumendra Singh, Sunder Singh and Bhuwan Singh caused injuries on Bhaiyalal and Jiyalal. Nothing substantial could be elicited by the defence in their cross-examination which may render their evidence unworthy of credence. Though the cogent and reliable evidence of injured eye-witnesses PW/3 Bhaiyalal and PW/4 Jiyalal does not requre any corroboration, but even then the evidence of PW/5 Ram Nivas Sharma, PW/6 Shambhoo Prasad, PW/10 Kunwarlal and PW/11 Mandal Singh furnishes ample corroboration to their evidence.
22. The ocular evidence of PW/3 Bhaiyalal, PW/4 Jiyalal, PW/5 Ram Nivas Sharma, PW/6 Shambhoo Prasad, PW/10 Kunwarlal and PW/11 Mandal Singh further stands corroborated by the medicals evidence of PW/1 Dr. V.D. Pandey and PW/9 Dr. B.M. Shrivaastava, PW/1 Dr. V.D. Pandey, on medical examination, found one incised wound on the head region of! Ishwardeen which in his opinion could have ; been caused by means of a sharp edged object. Similarly, Dr. Pandey found five external injuries each on the other injured persons Bhaiyalal and Jiyalal and in his opinion these injuries could have been caused by means of hard and blunt objects. PW/9 Dr. B.M. Shrivastava, on post mortem' examination, found one incised wound on the head region of deceased Ishwardeen with corresponding fractures of both pari- etal bones.
23. In view of the abvoe discussion of the evidence, led by the prosecution at the trial, we do not find any substance in the first submisison of the learned counsel for the appellant and we have no hesitation in upholding the findings recorded by the trial Court on the evidence of the prosecution witnesses holding acused Chain Singh guilty of causing on incised wound on the head region of deceased Ishwardeen by means of tangia, resulting in corresponding fractures of both his parietal bones leading to his death next day and accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh guilty of causing simple hurt by means of cycle chain and lathis on injured persons Bhaiyalal and Jiyalal.
24. Now, we taken up the other submission of the learned counsel for the appellant that the above proved act of accused Chain Singh in dealing solitary on blow on the head region of deceased Ishwardeen by means of a tangia resulting in the fracture of his both parietal bones and leading to his death next day, would not amount to the commission of the offence of 'murder' punishable under Section 302, IPC and would be punishable under Section 304, IPC only.
25. True, accused Chain Singh dealt only the blow on deceased Ishwardeen. But, the facts that this solitary blow was caused by means of a heavy and sharp edged object tangia and that too on the head region, the most vital part of the body and sufficient amount of force was used in dealing the solitary blows which is evident from the fact that the said blow resulted in the corresponding fractures of both of his parietal bones and that the injury found on the head region of the deceased in the opinion of the Autopsy Surgeon was sufficient in the ordinary course of nature to cause death, do not leave any room for doubt that appellant Chain Singh while dealing tangia blow on the head region of deceased Ishwardeen had intended to cause his death. Therefore, in our considered view the above act of appellant Chain Singh in the above factual matrix of the case would not amount to anything short of 'murder' and would be punishable under Section 302, IPC only.
26. Now, remains the last submission of the learned counsel for the appellants that the conviction of other accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh under Section 302, with the aid of 34, IPC cannot legally be sustained, as the common intention which they shared with their co-accused Chain Singh was not to cause death of Ishwardeen, but was only to cause grievous hurt on him.
27. True, accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh were also hiding themselves along with principal accused Chain Singh who was armed with a sharp edged weapon (Tangia). This circumstance would necessarily lead to the inference that there was some prior meeting of mind between all the accused persons and all of them were hiding themselves behind the bushes with some 'Common Intention'. The most crucial question now posed before us is whether the common intention of all the accused persons was to cause death of Ishwardeen or was it only to cause grievous hurt on him.
28. The Apex Court, while considering applicability of Section 34 in the case of Dharam Pal v. State of Haryana reported in AIR 1978 SC 1492 : 1978 Cri LJ 1538, observed in paras 13 to 17 :-
13. The case of Surta and Samme Singh, appellants, however stands on a different footing. Their convictions for offences under Section 302/34 and Section 307/34 of the I.P.C. cannot, in our opinion, be sustained. It is true that these persons also accompanied Dharam Pal but that was only with the avowed intention of teaching a lesson to Hari Ram, P.W. 6. There is no material to indicate that there was a pre-arranged plan to murder or to attempt to commit the murder of any person who might intercede to save Hari Ram, P.W. 6. The observations of the Sessions Judge that the appellants accompanied Dharam Pal not only with the common intention to beat Hari Ram but also with the intention of injurying anybody who obstructed them in carrying out the criminal act of beating Hari Ram are not borne out by the evidence adduced by the prosecution. There is nothing on the record to show that the intention which Dharam Pal might have secretly formed and entertained to deal with any person other than Hari Ram, P.W. 6 who might choose to intervene on his behalf was known to Surta and Samme Singh. There is also nothing on the record to establish that Surta and Samme Singh said or did anything in respect of Sardara Singh, deceased or Singh Ram, P.W. 7 or any other person which may go to indicate that they acted in concert with Dharam Pal in murdering Sardara Singh, deceased or in attempting to murder Singh Ram, P.W. 7. The acts attributed to them are in respect of Hari Ram only.
14. It may be that when some persons start with a pre-arranged plan to commit a minor offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or oher evidence may be such as not to leave any room for doubt in that behalf.
15. A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the later might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. As already stated, there is no evidence to justify the conclusion that Surta and Samme Singh, appellants, shared the common intention with Dharam Pal to commit the murder of Sardara Singh or to make an attempt on the life of Singh Ram and that the said acts were committed by Dharam Pal in furtherance of the common intention of all the appellants. The common intention denotes action in concert and necessarily postulates a prearranged plan or prior meeting of minds and an element of- participation in action. As pointed out above, the common intention to commit an offence graver than the one originally designed may develop during the execution of the original plan e.g. during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent for suspicion, however strong, cannot take place of the proof which is essential to bring home the offence to the accused.
16. As there is nothing in the prosecution evidence to show that it was in the - contemplation of Surta and Samme Singh, appellants not only to give a thorough beating to Hari Ram, P.W. 6 but also to deal with any other person who might choose to intervene on his behalf, we find it dificult to hold that they accompanied Dharam Pal, appellant with the common intention of murdering Sardara Singh, deceased or with the intention of attempting to murder Singh Ram, P.W. 7.
17. For the foregoing reasons, we allow the appeals of Surta and Samme Singh, appellants and set aside their convictions for offences under Sections 302/34 and 307/34 of the I.P.C. and the sentences imposed on them thereunder. We are, however, unable to accede to the contention of the defence counsel and to interfere with the judgment and order of the High Court in so far as the conviction of Surta, appellant under Section 326 or that of Samme Singh, appellant under Section 326/34 of the I.P.C. is concerned. It is clearly brought out in the prosecution evidence that Surta, appellant administered a blow on the head of Singh Ram with Pharsa as a result whereof the latter slumped on the ground and sustained a fracture of the right parietal bone. It is also in evidence that after Singh Ram, P.W. 7 had fallen down on account of the head injury. Samme Singh, appellant gave 4 or 5 blows on his thighs. In these circumstances, it is clear that Samme Singh shared a common intention with Surta of causing grievous injury on the person of Singh Ram, P.W. 7. Accordingly we confirm the conviction and sentence of Surta, appellant under Section 326 and that of Samme Singh, appellant under Section 326/34 of the I.P.C. In the view that we have taken of the matter, it is not necessary to inflict separate sentence on Samme Singh, appellant under Section 323 or on Surta, appellant under Section 323/34 of the I.P.C.
29. Now, reverting to the present case, the only cause shown for the incident of assault on Ishwardeen was the previous minor incident of altercation between the accused persons and the complainant party at the house of Ishwardeen. Admittedly, there was no prior ill-will between the parties before that incident of altercation. Though accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh were also armed with cycle chain and lathis at the time of the incident, but admittedly they neither caused any injury on deceased Ishwardeen nor even made an attempt in that behalf. These three accused persons caused injuries on injured persons Bhaiyalal and Jiyalal only. Both these injured persons though had sustained five external injuries each, but all these injuries were found to be simple in nature. To us, it appears that the accused persons being annoyed on account of the previous incident of altercation wanted to teach only a lesson to Ishwardeen and his associates.
30. On considering the act and conduct of accused persons Bhuwan Singh, Sunder Singh and Sumendra Singh in the above stated fact situation, we find it difficult to hold with certainty that the common intention of the accused persons was to cause death of Ishwardeen. Even If the present is a border-line case wherein both the inference, one that the common intention was to cause death and the other to cause grievous hurt, are equally possible, then the inference favourable to the accused has to be drawn. From the fact that accused Chain Singh was carrying a heavy and sharp object 'tangia' at. the time of the incident, these three accused persons at the most can be imputed with the knowledge that Chain Singh might cause grievous hurt on Ishwardeen. Therefore, conviction of accused persons Bhuwan Singh. Sunder Singh and Sumendra Singh under Sections 302 read with 34. IPC cannot legally be sustained. Nevertheless, they are liable to be convicted under Sections 326 read with 34, IPC.
31. As for the sentence, a period of about 14 years has elapsed since the incident of assault on Ishwardeen-and these appellants now are on bail for the last more than 10 years. In our considered view, the sentence of rigorous imprisonment for two years would be the sufficient punishment under Sections 326 read with 34, IPC and would meet the ends of justice.
32. For the foregoing reasons, the appeal, so far as it relates to appellant No. 1 Chain Singh, fails and is hereby dismissed in toto, whereas the appeal, so far as it relates to appellants Nos. 2, 3 and 4; Bhuwan Singh, Sunder Singh and Sumendra Singh, is allowed in part. The conviction of appellant Chain Singh under Sections 302 and 323 read with 34, IPC with sentences of imprisonment for life and rigorous imprisonment for 1 year are hereby affirmed. Conviction of appellants Nos. 2, 3 and 4; Bhuwan Singh, Sunder Singh and Summendra Singh under Sections 302 read with 34 IPC and sentence of imprisonment for life are hereby set aside and instead they are convicted under Sections 326 read with 34, IPC and are sentenced to rigorous imprisonment for two years each. The conviction of appellants Bhuwan Singh, Sunder Singh and Sumendra Singh under Sections 323 read with 34, IPC with sentences of rigorous imprisonment for 1 year each are hereby affirmed. Both the jail sentences shall run concurrently.
33. Appellants Bhuwan Singh, Sunder Singh and Sumendra Singh are on bail. From the records we gather that these appellants were in Jail for a period of more than two years during trial and after their conviction and prior to their release on ball in pursuance of this Court's order dated 1-3-90, As such, these appellants have already undergone whole of the Jail sentences, now awarded on their conviction under Sections 326 read with 34 and 323 read with 34, IPC. Their bail bonds shall stand discharged.