JUDGMENT
1. The appellants Ahmad Ali Khan and Rahmat Ali have been convicted of the offence under Section 302/34 IPC and have been sentenced to imprisonment for life by the Additional Sessions Judge, Churu by his judgment dated December 23, 1974.
2. The prosecution case in brief is that Sadulekhan PW 8 and Mukarab Khan are the real brothers, the deceased Nathu Khan was the son of Sadulekhan, accused Ahmad Ali and Nizam Ali are the sons of Mukarab Khan. There was some dispute between Mukarab Khan on the one side and Rahamat Ali and Ahmad Ali on the other side in connection with passage of water through the water course. In that connection permission was obtained by Mahboobkhan and he had put up a Nali which was removed by the accused persons. In that matter deceased Nathukhan had supported Mahboob Khan and as such the relations between the deceased and Ahmad Ali and Rehmat Ali had become strained. It is alleged that on 8-7-1974 Ahmad Ali and Nathukhan were at Churu. Ahmad Ali was serving in the PWD as mistry and Nathukhan was a labour. They used to come from Bissau on cycles. Balu Khan PW 2 is the brother-in-law of the deceased Nathu and is residing at Churu. Balu Khan had seen Nathukhan as well as Ahmad Ali at about 5.15 p.m. of 8-7-1974 in the bazar near Peepal-gate. Rameshwar Dholi of Ramsara was also present at that place. He asked them not to quarrel with each other and thereafter Nathu Khan had left the place and Ahmadali followed him for Bissau. The prosecution story further proceeds that Sampatram PW 1 who was a T.B. Patient had gone to Bissau from Churu which is at a distance of 9 miles. He had gone to Bissau in connection with getting himself examined by some Vaidya and on that date he was returning from Bissau. At about 5.45 p.m. he reached Balasar bus-stand at a distance of two miles from Bissau and seven miles from Churu. He observed both the accused persons giving slaps, kicks and fist blows to Nathu Khan. Nathukhan was known to him from before. He asked she accused persons not to beat Nathu Khan thereupon he himself was threatened. He then left the place and went to Churu and informed about the occurrence to Balu Khan and both of them went to the place of occurrence and saw Nathu Khan lying dead at the bus stand. Then both of them returned to Churu. As Balukhan was not a cyclist and on being asked by him Sampatram took him to the police station on his cycle and left him outside the police station. Balukhan then went inside the police station and lodged the report Ex. P 2. On this report a case Under Section 302 IPC was registered by Munshiram PW 3 who was Incharge of the police station Churu recorded the statement of Balukhan and on the next day Shivdansingh under took the investigation from him. Shivdansingh PW 18 was the second officer. He visited the spot on 9-7-1974 and conducted the investigation and found the cycle of the deceased alongwith some bags and his chappals were also found at the spot. Autopsy was conducted on the dead-body of the deceased by Dr. K.L. Gupta, PW 17. He found the following injuries on the person of Nathu Khan:
(a) There was a well defined mark of the size the lateral and of which was 5″ and the medial and was 3″. It was extending from the right sternum mastoid muscle about 1″ on the left of mid line. The above down-ward entrusion was from the abdomen prominence to the right clavicle inner 2/3rd portion. One over the ligature skin was dried up looked like parchment paper.
(b) (i) Bruises on both scretum of the size of 2″ x 2″ on the either side of mid line;
(ii) Bruises at the root of penis 2″ x 2″;
(iii) Bruises in an area 3″ x 3″ on left inguial region;
(iv) Abrasion over the left lumber region posteriorly 4″ x 4″;
(v) Abrasion 1/2″ x 1/2″ over the left maleous;
(c) (i) Blood stains present over the face left cheek;
(ii) Blood foam coming from both the nostriles;
(iii) Tongue was swollen and protruding from the mouth.
According to Dr. Gupta there was extra vasaction of blood in the substaneous tissue and the muscles of the neck under the area described above under injury (a). He further found that there was a longitudinal tear in the larynx and trachea of about 3″ in length. The hyoid bone was broken slightly on the right of the mid line. The inner lining of the trachea and larynx was congested. He further found both the testines were bruised and having heamatoma of the size of 1″x1″ over the antero medial aspect. In his opinion death was caused by asphyxia due to strangulation and injury of the trachea and larynx was sufficient to cause death instantaneously in the ordinary course of nature. Both the accused persons were arrested on 15-7-1974. Rehmat Ali was committed to judicial custody on 16-7-1974 and he was got identified by the witness PW 1 Sampat Ram. Investigation was conducted from the witnesses and after completion of investigation charge sheet was presented against the accused persons who were ultimately committed to the court of Additional Sessions Judge for the trial. Both the accused persons were charged for the offence under Section 302/34 IPC. They how ever pleaded not guilty and claimed to be tried. At the trial the prosecution in all examined 18 witnesses. After recording the statements of the accused three witnesses were examined in defence. The learned Additional Sessions Judge after hearing the argument found both the accused guilty under Section 302/34 IPC convicted and sentenced both as aforesaid. Dissatisfied by their conviction and sentence the present appeal has been filed.
3. We have heard Shri V.D. Calla learned counsel for the appellants and Shri L.S. Udawat, learned Public Prosecutor for the State, The V.D. Calla first of all submitted that it is a case of no evidence. The learned Additional Sessions Judge was wrong in placing reliance on the testimony of Sampatram as an eye witness. Even Sampatram has not stated that out of the two accused persons who had strangulated the deceased. His testimony is only to this effect the when he was passing by the side of the bus stand he observed that accused persons giving fists, slaps and kick blows and thereafter he proceeded to inform Balukhan PW 2. He stessed that if the statement of Sampatram is perused as a whole, it would transpire that his testimony is not credible. He pointed out that Sampatram is a T.B. Patient. He had come to Bissau after cycling upto nine miles. While corning to Churu he returned back along with Balu Khan upto 7 miles and from the place of occurrence both of them again returned to Churu covering 7 miles. A T.B. patient could not have travelled in this manner a long distance making two long trips on cycle. His statement also does not appear to be believable in view of the fact that he has stated that he had not narrated the occurrence to anyone except Balukhan. This aspect of his statement also cannot be ignored. He has deposed that he had gone to Bissau in connection with his examination by some Vaidya. He was not the patient of that Vaidya and he did not know the name of the Vaidya. This version thus given by the accused that he proceeded to Bissau in connection with his examination by some Vaidya does not appear to be true and the whole of the version appears to be cooked up one. If reliance is not placed on the testimony of Sampatram then the accused persons cannot be connected with the commission of the offence.
4. We have given our anxious consideration to the above submissions of Mr. Calla and we have also perused the statement of Sampatram. What was weighed with us is that the whole story gets revealed through him. It is he who narrated the occurrence to Balukhan and the report came to be lodged in pursuance of the information given by Sampatram to Balukhan. Regarding the credibility of the testimony of PW1 Sampatram the statement of PW2 Balu Khan is also to be looked into. If we disbelieve the testimony of Balukhan on this aspect of the case, then only it can be said that reliance cannot be placed on the testimony of Sampat Ram. Balukhan in his First Information Report has come out with the story as stated by Sampat Ram. This information finds place in the FIR as to how Balukhan came to know of the occurrence. It finds mention in the FIR that Sampat Ram had come to his house and informed that he had seen accused Ahmed alongwith one unknown person inflicting blows on his brother-in-law Nathukhan and the time of occurrence was also narrated by Sampatram to Balukhan which finds mention in the FIR. It also finds mention in the FIR that both of them then went back to the place of occurrence on the cycle of Sampatram and saw the dead body and both of them returned from there. Sampatram being the source of information to Balukhan and Balukhan’s testimony on this score in our opinion can be disbelieved. That being so, it cannot be found that Sampatram had not visited Balukhan and was not returning back from Bissau at the relevant time. Nothing has come in the testimony of Sampatram of which it can be said that he had any grudge against the accused persons or was in any way interested in the deceased. Balukhan is no doubt is a mistry in the PWD office Churu and Sampatram is also serving the same Department at Churu but serving the same department can be no reason to come out against the accused persons. With regard to the testimony of Sampat Ram it has also been pointed out that his testimony is such on the basis of which reliance should not be placed on his testimony. He was prosecuted by the Department under Section 379 IPC for having committed theft of the departmental property and besides that he was also prosecuted for committing murder of the husband of Parmeshwari whom he subsequently married. In that murder case he was acquitted and in the prosecution for the offence under Section 379 he was suspended. It was also pointed out that attendance of PW 1 Sampatram in the PWD register on the relevant date shows that there is over writing. Being under suspension there was no need for him to have attended the Office. This criticism regarding his attendance in the office again has to be viewed in the light of what we have discussed that he is the source of information and on that basis his statement cannot be said to be a concocted one. Therefore, reliance can be placed on the testimony of Sampatram but his testimony is only believable to this extent that he saw both the accused persons giving blows in the nature of slaps first and kicks. His testimony does not go beyond that.
5. The question arises whether both the accused persons can be held guilty of the offence under Section 302 IPC which is a very serious question in the present case. Admittedly there is no evidence on record that out of the two accused persons who throttled the deceased. So it is not possible to hold any one of the accused persons guilty of the offence under Section 302 IPC simpliciter. That is why the question of applicability of Section 34 IPC assumes importance. If Section 34 IPC cannot be made applicable or its applicability is rather doubtful, then none of the accused can be held guilty under Section 302. For the applicability of Section 34 IPC what is material is that the court has to find that both the accused persons shared the common intention to cause the death of the deceased. If such a finding cannot be arrived at, then by the aid of Section 34 IPC the accused persons cannot be held guilty under Section 302 IPC. For the applicability of Section 34 IPC the background in which occurrence has taken place is also relevant. According to the prosecution the relation between accused Ahmad Ali and the deceased became strained on account of some dispute between Mehboob Ali and Ahmed Alt and Rehmat Ali. Mehboob Ali PW 7 has stated that he had put up drain pipe after obtaining permission from the Municipal Board, Bissau and in this work Nathu Khan, father of Sadule Khan had helped him. Two-three days after finding of the drain pipe it was broken by the accused persons and this breaking of the pipe gave rise to some heated exchanges between them. Sadule Khan PW 8, father of the deceased has stated except this, no quarrel ever took place between his son Nathukhan and the accused persons. He has stated that he & his son both had supported Mehboob Ali in the installation of drain pipe in pursuance of the permission having been obtained by Mehboob Khan from the Municipal Board. According to Sadule Khan it is only this support by Nathu Khan which annoyed the accused persons and Nathu Khan had expressed him that the accused persons have become angry with him and they will beat him. For the applicability of Section 34 IPC reference has also been made to the statement of Khatoon PW 10. She has stated that after breaking of the drain pipe which resulted into exchange of words she had heard Ahmad Ali saying Rahmat Ali alias Lal to come tomorrow at Khasuri Road. They will thrash him Khatoon informed her father Sadule Khan that Nathu Khan would be beaten. It appears that the occurrence had taken place in this back ground. In our considered opinion the back ground does not supply the necessary intention to kill. The background or the motive should be commensurate with the crime but in our opinion the present back ground falls for short of that It may be that the real motive might been concealed when according to Sadule Khan there was no other dispute between the accused persons and the deceased and no quarrel ever took place, it cannot be said that the relations between the deceased and the accused persons were so strained so as to take away his life. If the accused persons had intended to cause the death of the deceased they would have availed the deceased with some arms and it cannot be conceived that the manner of causing death was already decided by the accused persons that they will cause the death by strangulation. To us it appears that all of a sudden any one of the accused throttled the deceased which act of one of the accused persons was not shared by the other and so in our opinion in the particular circumstances of this case a common intention cannot be attributed to the accused persons that they intended to cause the death of the deceased. It may be slated that a common intention should be found only when it is clearly made out else incalculable harm may be caused to an accused person who did not share any common intention. Even when the applicability of Section 34 IPC is doubtful, still the benefit of such doubt has to be given to the accused. In our opinion considering the circumstances of this case sharing of the common intention to cause death on the part of the accused persons in any case is doubtful and so the accused persons are entitled to the benefit thereof. Thus by the applicability of Section 34 the accused persons cannot be held guilty of the offence under Section 302 IPC. As it has not been proved who was a author of the fatal injury, so none can be held guilty under Section 302 IPC but the accused persons can only be held guilty under Section 323 IPC in the light of the evidence of Sampat Ram as he has deposed that injuries were inflicted by the accused persons on the person of the deceased by way of slaps, fists and kicks as a result of which bruises and abrasions appeared on the person of the deceased. We, therefore, hold both the accused persons guilty for the offence under Section 323 IPC.
6. Accordingly the appeal is party allowed. Convictions and sentences of the appellants for the offence under Section 302/34 IPC are set aside. They are however, convicted under Section 323 IPC and each of them is sentenced to one year’s rigorous imprisonment. Both the accused persons have remained in custody for more than a year. Thus they have served out the sentence. They are already on bail so they need not surrender to their bail bonds which are hereby discharged.