JUDGMENT
Navin Chandra Sharma, J.
1. In Sessions case No. 55 of 1975, the Additional Sessions Judge, Bhilwara has, on September 29, 1976, held the appellant Ramsukh and Dalchand, Sunderlal and Gopi guilty for the offences under Sections 325 and 323 both read with Section 34 of the Indian Penal Code. While Ram Sukh and Dalchand had been sentenced to undergo rigorous imprisonment for a term of three years for the offence under Section 325 read with Section 34 I.P.C. and also with a fine of Rs. 300/- with a default clause to further undergo rigorous imprisonment for 3 months in the event of non-payment of fine and also to simple imprisonment for a term of one year for the offence under Section 323 read with Section 34 I.P.C. but as Sunderlal and Gopi were below 21 years of age at the time of the commission of the offence, they were to remain on probation for a period of one year on their furnishing bonds in the sum of Rs. 1000/- with surety in the like amount.
2. While Ramsukh has filed a Criminal Appeal No. 805 of 1976 in this Court praying for his acquittal in the case, the State has, by leave, appealed against Ramsukh, Dal Chand, Sunder Lal Gopi Lal and Bhagwati Lal by its Criminal Appeal No. 439 of 1977 praying that their acquittal by the Additional Sessions Judge, Bhilwara for the offences under Sections 147, 148 and 302 read with Section 34 1PC or Section 149 I.P.C. may be reversed into conviction for the said offences and they may be sentenced by this Court in accordance with law.
3. The prosecution case was that Gattu daughter of Dal Chand had come to the house of Deva deceased along with Balu PW 2 son of Deva. Deva deceased and his wife Harku PW 2 counselled Gattu to return to her parents’ house. It is stated by Harku PW 1 that Gattu had become so much attached to her son Balu PW 2 that she even told that if she was not allowed by Deva and Harku to live with Balu in their house, she will make an end of her life. On persuation by Deva and his wife, Gattu, however, went back. Some time thereafter Dalchand convict complained to Deva that Balu PW 2 had eloped his daughter. Deva assured Dalchand that if it was a fact he would trace both of them out and restore Gattu to her parental home. That Harku states Deva did.
4. However, on the date of incident i.e. June 10, 1975, PW 2 and his father Deva deceased had, in the morning gone near the well for natural calls leaving Harku PW 1 and her other son Jagdeesh PW 3 at home. Balu had returned home from the well earlier than his father. Soon thereafter when Deva deceased was returning to his home he was surrounded by Dal Chand, Sunderlal and Gopi and they started beating him with lathies. To save his life Deva rushed towards the ‘pol’ to enter into his house, but all of a sudden Bhagwati Lal armed with a dagger and Ramsukh, Mohan Lal, Nand Lal, Kailash, Nand Lal Sohan Lal armed with lathies came and caught hold of Deva and did him to death by beating him and causing injuries to him by lathies. Balu and his mother Harku attempted to rescue Deva but they were also caused injuries by dagger by Bhagwatilal and by lathies by others. All the 10 respondents in the State Criminal Appeal No. 439 of 1977 were charge-sheeted by the Officer-in-charge of Police Station, Badnor in the court of the Judicial Magistrate, Gulabpura who committed them for trial to the court of Sessions and the Additional Sessions Judge, Bhilwara after trial held only Ramsukh, Dalchand. Sunderlal and Gopi guilty not for the offence of murder but for the lesser offences under Sections 325 and 323 of the Indian Penal Code both read with Section 34 I.P.C. and sentenced Ramsukh and Dal Chand as aforesaid and released Sunder Lal and Gopi on probation on bonds.
5. Both the appeals filed by Ramsukh against his conviction and that filed by the State were heard by us together and are being decided by this common judgment.
6. Dealing with the State Appeal No. 439 of 1977 first it may be mentioned that the Addl. Sessions Judge, Bhilwara, after appraisement and marshalling of prosecution evidence, arrived at the conclusion that there was a clear case against Dalchand, Sunderlal, Ramsukh and Gopi that they gave beating and caused injuries to Deva deceased, Harku PW 1 and Balu PW 2. He completely ruled out the participation of Bhagwatilal in the crime and also ruled out that any injury was caused by a dagger or a knife to Deva, Harku or Balu. So far as injuries to Harku and Balu were concerned, Ram Sukh was held responsible for causing the injuries on their body. The Additional Sessions Judge held that there was no intention to cause murder of Deva. Except one all other injuries were caused to Deva on parts, which were not vital. The injuries to the vital part involved eye-brow, eye and cheek which resulted in the fracture of frontal bone at the left lateral surface near the eye, left temporal bone, left femur and right femur. However, it was not known from the prosecution evidence as to who caused the fatal blow on Deva deceased. It was held that where it was not possible to infer that each of the accused had the requisite knowledge that his act was likely to cause death, it was not possible, to utilise the provisions of Section 34 I.P.C. for the purpose of conviction under Section 304, Part-II. What could only be concluded from the prosecution evidence was that the assailants used lathies and in doing so, they must have had the common intention of causing grievous hurt to Deva. They also caused simple injuries to Harku PW 1 and Balu PW 2. On the basis of these findings, the Additional Sessions Judge, Bhilwara did not hold the persons accused before him guilty either for the offence under Section 302 or Section 304, I.P.C. but held the above named four persons guilty for the offences under Sections 325 and 323 both read with Section 34, I.P.C. and sentenced Ramsukh and Dalchand as aforesaid and ordered the release of Sunderlal and Gopi on probation for a period of one year under the bonds.
7. The scope of the powers of an appellate court in appeal against acquittal was elucidated by the Privy Council in Sheo Swaroop v. Emperor AIR 1934 PC 227(2). Lord Russel observed at page 230:
….The High Court should and will always give proper weight and consideration to such matter as (I) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption is certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses…they have no reason to think that the High Court failed to take all proper matters into consideration in arriving at their conclusion of fact.
The Privy Council explained its earlier observations in Noor Mohammed v. Emperor AIR 1945 P.C. 151 thus at page 152:
Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there that is that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.
In Satwant Singh v. State of Rajasthan AIR 1961 Supreme Court 715, his Lordship K. Subba Rao, J. speaking for the Court, observed:
The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup’s case AIR 1934 P.C. 227(2) afford a correct guide for appellate court’s approach to a case in disposing of such an appeal; and (3) the different Phraseology used in the judgment of this Court such as: (i) “substantial and compelling reasons”: (ii) “good and sufficiently cogent reasons, and:(iii) “strongs reasons” is not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and come to its own conclusion, but in doing so it should not only consider, every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.
In Bhim Singh v. State of Maharashtra , decision in Satwant Singh v. State of Rajasthan (supra) was approved and reference was also made to Ramabhupala Reddy v. State of Andhra Pradesh where in it was added that the appellate court must bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witnesses box by the order of acquittal. In Bava Hansa v. State of Kerala , the law laid down in Bhim Singh v. State of Maharashtra (supra) had been quoted with approval and the same view was reiterated by their Lordships of the Supreme Court in Palanisamy and Ors. v. State of Tamil Nadu AIR 1986 S.C. 593.
8. Keeping in view the above position of law and the line of approach to be adopted in appeal against acquittal, it is clear that Durga Shanker PW 5 professes to have seen the entire incident from the very beginning to its end and he deposed that he saw from his ‘bara’ that Dalchand Sunderlal and Gopi started beating Deva deceased. Remaining accused persons came later on. The entire incident was over in five to seven minutes. Harku PW 1 implicated Bhagwan Lal, Ramsukh, Sohan Lal and Kailash Chandra also. However, she admitted in her cross-examination that in the beginning three or four persons had beaten Deva. As a matter of fact, Harku PW 1 was not present during the beginning part of the incident when injuries had been inflicted on Deva by three or four persons. Harku admits that before the other persons came, Deva had already sustained injuries on his eyes and head and had fallen down. Balu PW 2 was inside the house when Deva was beaten. He came from inside the house only after hearing the noise arising from lathi blows. He directly named Bhagwatilal and Ramsukh. According to Harku PW 1 and Balu PW 2, Bhawati Lal had inflicted injuries by dagger and Ramsukh by lathi. Dr. Prem Narain Mathur deposed that injuries sustained by Deva, Harku and Balu could be caused by lathies and axe, Admittedly, no axe was used by any of the accused persons. An injury caused by a blunt edged weapon on a hard bony substance can superficially look as an injury caused by a sharp edged weapon It is hardly believable that Bhagwati Lal was having both lathi and dagger in his hands as has been deposed by Harku PW 1 in cross-examination. Durga Prasad PW 5 and Ladu PW 6 did not name Sohanlal amongst the assailants Deva sustained a lacerated wound on the left leg, one incised wound 1-1/2 x 1/2 x bone deep on lateral end of the left eye-brow and incised wound 1″ x 1/2 x bone deep on the right arm. Rest were three bruises. Balu received two wounds, an abrasion and a bruise. Harku received one incised wound, four bruises and swelling on right hand. Had ten persons participated in the incident as assailants, the number of injuries and their gravity would have been much more than sustained. It was correctly observed by the Additional Sessions Judge that the prosecution witnesses have mixed up falsehood with truth and he was justified, in the circumstances of the case, in separating the grain from the chaff. What was established beyond reasonable doubt was that case against Dalchand, Sunderlal, Ramsukh and Gopi had been made out and not as against the rest We concur with the finding of fact arrived at by the Additional Sessions Judge.
9. As to the offences made out, there is no evidence as to the author of fatal injury on the body of Deva deceased. Looking to the nature and extent of injuries inflicted on Deva, it cannot be held that the convicted accused persons had an intention to murder Deva. When it is not shown as to who caused the fatal blow on Deva, it cannot be said that convicts had the knowledge that the act was likely to cause death of Deva. There was no common intention to cause death of Deva or to inflict upon him injuries likely to cause his death. Conviction of the four persons for the offences under Sections 325 and 323 read with Section 34, 1PC was, therefore, justified.
10. Coming then to Criminal Appeal No. 805 of 1976 filed by Ramsukh against his conviction and sentence, it may be stated that Harku PW 1, Balu PW 2, Mathura Lal PW 4 and Ladu PW 6 have all named Ram Sukh as also the persons who, along with other convicted three persons, participated in the incident. Harku PW 1 and Balu PW 2 have deposed that Ramsukh had inflicted lathi blows on them. We do not find any reason to disbelieve the participation of Ramsukh and his causing injuries on the body of Harku PW 1 and Balu PW 2 as well as on the body of Deva deceased. Ramsukh was, therefore, rightly held guilty for the offences under Sections 325 and 323 both read with Section 34 I.P.C.
11. As to sentence, learned Counsel for the appellant Ramsukh urged that Ramsukh has already remained in jail for about 1-1/2 years and looking to all the facts and circumstances of the case, sentence of Ramsukh to the extent he has already remained in jail may be treated as sufficient. It is clear from the record of Sessions case of the Court of Additional Sessions Judge, Bhilwara that during the trial of the case Ramsukh remained in jail for 472 days. After his conviction by the Addl. Sessions Judge on Sept. 29, 1976, he remained in jail for 15 days more. Thus Ramsukh has already remained in jail for about 1 year 4 months. Looking to this fact and the fact that the direct quarrel was between Dalchand and Deva deceased and Ramsukh was only a participant, we are of the opinion that while the amount of fine of Rs. 300/- imposed by the Additional Sessions Judge, Bhilwara on Ramsukh should be increased to Rs. 5,000/-, the sentence for the offence under Section 302 read with Section 34, I.P.C. should be reduced to the period he has already remained in jail. Out of the amount of fine of Rs. 5000/-, an amount of Rs. 4000/- would be paid by the Additional Sessions Judge, Bhilwara to the legal representatives of Deva deceased.
12. Consequently, we dismiss Criminal Appeal No. 439 of 1977 filed by the State of Rajasthan. As regards Criminal Appeal No. 805 of 1976 filed by Ramsukh, while maintaining his conviction for the offence under Sections 325 and 323 both read with Section 34 I.P.C. we reduce the sentence awarded by the Additional Sessions Judge, Bhilwara to the extent Ramsukh has already remained in jail. We, however, increase the amount of fine imposed upon Ramsukh for the offence under Section 325 read with Section 34 I.P.C. from Rs. 300/- to Rs. 5000/-. We grant to Ramsukh three months’ time to deposit the said amount of fine in the court of the Additional Sessions Judge, Bhilwara. Out of this amount of fine, which may be deposited by Ramsukh, an amount of Rs. 4000/- would be paid by the Additional Sessions Judge Bhilwara as compensation under Section 357, Cr. P.C. to the legal representatives of Deva son of Moti Ram (deceased) of village Jodharas, P.S. Badnor (District Bhilwara). In default of deposit of the fine amount of Rs. 5000/- by Ramsukh appellant within three months from the date of this judgment, Ramsukh will undergo rigorous imprisonment for one year.
13. Judgment pronounced in open court.