Shiv Kumar Sharma, J.
1. The accused appellant Om Prakash faced trial in Sessions Case No. 26/88 before the learned Special Judge and Additional Sessions Judge Dholpur (for short ‘trial judge’) who vide Judgment dated June 7, 1991, convicted and sentenced Om Prakash under Section 302 IPC to suffer imprisonment for life and fine of Rs. 200/- in default to further suffer one month rigorous imprisonment.
2. Accused appellant Chimman along with nine co-accused persons were also tried in Sessions case No. 25/88 before the learned trial Judge who vide Judgment dated June 7, 1991, convicted and sentenced Chimman as under:
Under Section 307 IPC:
To suffer rigorous imprisonment seven years and fine of Rs. 100/-, in default to further suffer fifteen days imprisonment.
Under Section 324 IPC:
To suffer rigorous imprisonment for three months.
Sentences were directed to run concurrently.
3. Other co-accused Purshottam, Maharaj Singh, Ram Charan, Smt. Ramo, Smt. Phoolwati, Mangal, Raghuveer Singh and Ramnath were acquitted of all the charges. Whereas co-accused Babu Singh was convicted under Section 324 IPC but was released on probation under the provisions of Probation of Offenders Act.
4. Om Prakash and Chimman have assailed the findings of the learned trial judge in these appeals.
5. The State of Rajasthan however did not challenge the finding of acquittal recorded against other co-accused persons as is evident from the note dated March 13, 2003 of the Dy. Registrar (Judicial).
6. The first information report was lodged by Ramji Lal with the police station Baseri/District Dholpur on October 1, 1984 against eleven accused persons with the averments that there was land dispute between the informant and Ram Charan. On the day of incident the informant had gone to Bari to institute another suit. When the informant came back he was informed by Ramveer that Rame (the elder brother of informant’s son in law) was killed and two persons viz. Ram Babu and Purshottam had sustained injuries. The names of assailants were Chimman, Mangal, Raghuvir, Om Prakash, Ramcharan, Mst. Rama, Phoolwati, Babu, Purshottam and Ramnath and they had Katta, Guns, Sword, Pharsi, Spear and Axe. Police Station Baseri registered a case under Sections 148,302/149 and 323/149 IPC and investigation commenced. After lisual investigation charge sheet was filed. In due course the case name up for trial before the learned Special Judge and Additional Sessions Judge Dholpur. Charges under Sections 148, 302/149, 307, 149, 324 and 323/149 IPC were framed against the accused who denied the charges and claimed trial. The prosecution in support of the case examined as many as 23 witnesses. In the explanation under Section 313 Cr.P.C, the accused claimed innocence. Learned trial judicion hearing final submissions convicted and sentenced Om Prakash and Chimman as indicated herein above, but acquitted other co-accused persons.
7. We have heard the arguments of learned Counsel for the appellants and learned Public Prosecutor and scanned the entire evidence on record. Before we deal with the contentions raised, it will be appropriate to take stock of the injuries sustained by the injured and deceased.
8. As per postmortem report (Ex.P-5) deceased Rame sustained following ante mortem injuries:
1. Incised wound of 3 cm x 1.5 cm present at the parietal region, placed transversly 15 cm away to roof of nose, the wound was deep to the bone and bone was also cut.
2. Incised wound of 6 cm x 1.5 cm size present at the parietal region, placed transversly parallel to the injury No. 1 about 5 cm posterior to it. The wound was bone deep, Bone was also cut.
3. Gun shot wound : Wound of entrance of 3 cm in diameter, circular in shape, blacking and charing was present on the posterior medial aspect of upper l/3rd of left thigh.
The cause of death in the opinion of doctor was haemorrehgic shock due to gun shot injury to vital organs such as livert intestines.
9. The injuries sustained by Ram Babu (PW. 6) vide injury report (Ex. P.8) were as under:
1 Incised wound – 4-1/2 cm 1/2 cm muscle deep left forehead 2.5 above the left eye brow.
2 Incised wound 5 cm x 1/2 cm muscle deep Vertex of head oblique in shape occipito Parietal region left to mid line.
3 Incised wound 3 cm x 1/2 cm at occipital eminence transversly placed.
4 Contusion with 10cm x 1cm Rt. side of the posterior wall of chest extending from 8th thorasic verlibrae to L1 lunbar vertibone 4 cm onway to the mid line.
10. Purshottam (PW. 5) vide injury report (Ex.P.9) sustained following injuries:
1. Swelling 10cm x 3 cm left side of chest posteriorly 3 cm below the angle of scapula.
2. Swelling 10cm x 3 cm abrasion 2 cm below the 1st injury at posteriorly on left side of chest.
11. Statement of Pushottam (PW. 5) and Ram Babu (PW. 7), who sustained injuries during the incident, were recorded in both the sessions cases bearing Nos. 25/1988 and 26/1988. Purshottam (PW. 5) in his deposition stated that the accused party had gone to the field for the purpose of ploughing it. The field was at a distance of 200 ft. from his house Om Prakash was his next door neighbour. Quarrel continued till one hour and persons were gathered. Om Prakash opened fire behind the back of Rame that hit on the left buttock of Rame. Accused Raghuveer also opened fire that hit on the wall. At the time of incident, Chimman gave Pharsa blow on the head of Rame whereas accused Mangal inflicted injury on the held of Rame with sword. Accused Babu and Mangal caused injuries on the head of Ram Babu with axe and sword.
12. Ram Babu (PW. 7) deposed that on the date of incident while Ramjilal had gone to Bari in connection with court’s stay order, eleven accused persons came in front of the house of Ramji Lal and told to send Ramji Lal out of the house so that they will plough the field in his presence. Thereafter altercations ensured. Chimman and Mangal inflicted injuries on the head of Rame, with Pharsa and sword and Om Prakash opened fire behind the back of Rame. At that time there was a distance of 20 hands between Om Prakash and Rame.
13. Surendra(PW. 12) in his deposition stated that when he reached at the spot he saw complainant party and accused party abusing each other. The accused party was standing around 25 ft. away from the house of Ramji Lal and Om Prakash was standing at the door of his house which was about 25 ft. away from the place of incident.
14. Dr. Radhey Shyam Garg (PW. 6), who performed the autopsy on the dead body of Rame, in his cross examination stated that the left thigh where the gun shot injury found was not a vital organ.
15. Factual situation of the case may be summarised thus:
(i) Ramji Lal and the accused party had a land dispute and deceased Rame was residing with him.
(ii) Om Prakash and Ramji lal were neighbours. On the day of incident Ramji Lal had gone to Bari in connection with court’s stay order in regard to land in dispute that situated around 200 ft. away from the houses of accused party and complainant party.
(iii) House of Om Prakash situated at a distance of 25 ft. from the place of occurrence. Om Prakash opened fire while standing at the door of his house, at that time back of Rame was towards Om Prakash and Ramvati, Purshottam, Ram Babu, Surendra, Bhagwan Kanwar, Ramveer, Patiram and other persons were also standing near Rame, Raghuveer also opened fire that hit on the wall. Fire opened by Om Prakash hit on the left buttock of Rame.
As per autopsy surgeon Dr. Radhey Shyam Garg the gun shot injury sustained by Rame was not on vital organ.
(v) Just before Om Prakash opened fire complainant party and accused party were abusing each other.
(vi) Sharp injuries on the head of Rame were attributed to Chimman and Mangal both.
(vii) Mangal was acquitted by the trial judge and finding of acquittal was not assailed by the State.
16. In the Indian Penal Code the word ‘intention’ is used in relation to the consequences of an act, the effect caused thereby, not in relation to the act itself- the voluntariness required to constitute an act is implied by the very word. Thus, in the case of murder, the intention required is, the intention of causing death or the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. As a general rule every crime requires a mental element. A person intends the commission of a crime only where it is his aim or purpose to bring about its constituent elements. The language of Clause Thirdly of Section 300 speaks of ‘intention’ at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon usual, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Indian Penal Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensure. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end. Kenny in Outlines of Criminal Law (17th edition of page 31) has observed:
“Intention” To intend is to have in mind a fixed purpose to reach a desired objective; the noun ‘intention’ in the present connexion is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower of cuts off his head it would seem plain that he both foresees the victim’s death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction and accordingly must foresee, that to which his express purpose is directed.
Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils and therefore has made up his mind to bring about that one.
Russel on Crima (12th edn. At page 41) has observed:
In the present analysis of the mental element in crime the word ‘intention’ is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.
17. Evidently in the case of ‘intention’ mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words ‘intended to be inflicted’ are significant. As noted already, when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
18. Bearing these principles in mind, we proceed to analyse the arguments advanced on behalf of Chirman. It is contended on behalf of Chimman that when the incised wounds on the head of Rame were attributed to co-accused Mangal also and learned trial judge acquitted Mangal then charges under Sections 307 and 324 IPC is not established beyond reasonable doubt against Chimman. On the same set of evidence, which was not relied on qua Mangal. Chimman could not have been convicted. We find merit in the submission.
19. Having carefully gone through the evidence adduced at the trial we notice that the allegation against Chimman was that he gave Pharsi blow on the head of Rame. Prosecution evidence also discloses this fact that it was Mangal who inflicted injury with sword on the head of Rame. The evidence of Purshottam (PW. 5) and Ram Babu (PW. 6) was not relied on by the learned trial judge in regard to allegations levelled against co-accused Mangal. But on the basis of said evidence Chimman was convicted and sentenced. We find that the case of Chimman is not distinguishable with that of the case of co-accused Mangal, who has been acquitted by the learned trial judge and in our considered opinion charges under Sections 307 and 324IPC are not established against Chimman beyond reasonable doubt.
20. In regard to allegation against Om Prakash we have already noticed that the prosecution could not prove that Om Prakash had any intention to kill Rame. While standing at the door of his house, which was at a distance of 25 ft., Om Prakash opened fire at the persons gathered in front of the house of Ramji Lal and the hit at the left buttock of Rame. At that time Rame’s back was towards Om Prakash and he was not in a position to see his face. There is nothing on record to suggest that Om Prakash had any intention to kill Rame. Accused Raghuveer and Om Prakash both opened fire, incidently the fire of Raghuveer hit at the wall, whereas the fire of Om Prakash caused injury on the non vital organ of Rame that resulted in his death. Om Prakash opened fire in the heat of passion after the abuses were exchanged between the complainant and the accused parties. We are of the view that from the mere fact that the injury caused by Om Prakash was sufficient in the ordinary course of nature to cause death, it does not necessarily follow that Om Prakash intended to cause the injury of that nature. However, the presumption arises that Om Prakash had knowledge that his act was imminently dangerous. In Muradhvaj v. State of U.P. (1992 UP Criminal Reports 319) it was held that where in the heat of abusive exchanges followed between the complainant and accused parties, accused opened fire it was held that the offence committed was one under Section 304 Part I IPC and not under Section 302 IPC.
21. For these reasons we dispose of the appeals in following terms:
(i) We partly allow the appeal of appellant Om Prakash and instead of Section 302 IPC we convict him under Section 304 part I IPC. Looking to the fact that appellant Om Prakash has already suffered 8 years 7 months and 25 days imprisonment, we sentence him to the period already undergone by him in confinement. Om Prakash who is in Central Jail, Bharatpur shall be set at liberty forthwith, if not required to be detained in any other case.
(ii) Appeal of appellant Chimman is allowed and his conviction under Sections 307 and 324 IPC stands set aside and he is acquitted of the said charges. Appellant Chimman is on bail, he need not surrender and his bail bonds stand discharged.
(iii) the impugned judgment of trial Court stands modified as indicated above.