1. This appeal arises out of the trial before the Sessions Judge of Shahabad, Arrah, in Sessions Trial No. 55 of 1953.
2. The prosecution case, stated shortly, is as follows: On 4-2-1953, at about sunset Makdum Dhobi, P. W. 1, returned home with his three donkeys laden with washed clothes. After unloading the donkeys, he asked his son Ghultua, aged about seven or eight years, to take them out for grazing. While grazing, one of the donkeys strayed into the potato field of the appellant Ramsakal Koiri, and grazed one plant of potato. It is said that Ramsakal gave a slap to Ghultua upon which Makdum, P. W. 1, came there from his house and asked Ramsakal as to why he had slapped his son. On this the appellant Ramsakal assaulted him with a Motangana (bamboo for carrying a leather bucket) on his head. Seeing this Makdum’s brother Damri Dhobi came to the spot and asked Ramsakal as to why he had assaulted Makdum and his son.
There was some altercation between them. Immediately, the appellants Kedar Koiri, Dani Koeri and Jatuli Koiri arrived at that place with Dantas in their hands. Bikram Singh, P. W. 4, who has his house very close to the place, arrived there and tried to stop the quarrel between the parties. He was, however, unsuccessful, and the quarrel continued. The appellant Ramsakal dealt a blow with his Motangana on the right hand of Daman Dhobi and the appellant Kedar Koiri assaulted him with lathi on his right temple. Damari thereafter fell down and he was then assaulted by the appellants Dani Koiri and Jatuli Koiri with lathis. Damari became unconscious and he was carried to the police station at Buxar, which is at a distance of sis miles from the’ place of occurrence, on a bullock cart and there a first information was lodged at 8 p. m. on the same day. Damari however, expired on the following Friday, that is, on 6-2-1953, at about 4 a. m.
3. After having completed investigation, the police submitted chargesheet against the appellants who were ultimately committed to the court of session to stand their trial. They were, accordingly, put on trial under Section 302 read with Section 34, Penal Code for having committed the murder of Damri Dhobi in furtherance of their common intention, The appellant Ramsakal was also charged under Section 323, Penal Code fur having voluntarily caused hurt to Makdum Dhobi in the course of the same transaction.
4. The accused persons pleaded not guilty to the charges framed against them. The defence of the appellant Ramsakal Koiri, as appears from his examination under Section 342, Criminal P. C. was that the three donkeys were grazing in his field and that when he was taking them towards the pound he was obstructed by Damri, Makdum and other persons who assaulted him and forcibly rescued the donkeys and that thereupon there was assault from both sides. The remaining appellants made no statement by way of defence, but the contentions raised on their behalf are the same as raised on behalf of the appellant Ramsakal Koiri. It appears that on 5-2-1953, a petition of complaint was filed on behalf of the appellant Ramsakal Koiri before the Subdivisional Magistrate, Buxar, which, in face of the chargesheet submitted against the appellants by the police, was dismissed as being without merit under Section 203, Criminal P. C.
5. The trial was held with the aid of four assessors all of whom were of the unanimous opinion that the appellants were guilty of the offences with which they were charged. The learned Sessions Judge substantially agreeing with the unanimous opinion of the assessors convicted the appellants Kedar Koiri, Dani Koeri and Jatuli Koiri under Section 302 read with Section 34, Penal Code, and sentenced each of them to transportation for life. He also convicted the appellant Ramsakal Koiri under Section 323, Penal Code for causing hurt to the deceased Damari Dhobi and sentenced him to undergo rigorous imprisonment for one year. He further convicted him under Section 323, Penal Code for causing hurt to Makdum Dhobi, P. W. 1, and sentenced him to undergo rigorous imprisonment for one year. The two sentences imposed on the appellant Ramsakal Koeri are to run concurrently.
6. Besides Narbadeshwar Singh, P. W. 12, whose
evidence will be dealt with later on, there are five
other eye-witnesses who have been, examined in this
case in support of the prosecution case. They are
Makdum Dhobi, P. W. 1, Nirmal Dusadh, P, W. 2,
Bikram Singh, P. W. 4, Mariam, P. W. 6, and
Gulabia, P. W. 7. All of them have fully supported
the prosecution version of the case, and relying on
their evidence the learned Sessions Judge came to
a finding that the prosecution version of the occur
rence was true. We have gone through their evi
dence very carefully and except in the evidence of
Gulabia nothing substantial has been pointed out to
us on which we may be persuaded to take a different view of their evidence.
P. W. 1, Makdum Dhobi, has narrated with full details in his evidence as to how the occurrence took place. He has stated that he came with his
donkeys and when his son Ghuitua took them out for grazing one of them strayed into the potato field of Ramsakal who slapped Ghuitua. He has then described as to how he took objection to Ramsakal’s slapping his son, and about his having been assaulted by Ramsakal with a Motangana. He has also stated that his brother Damari, thereafter, came to the place and took objection to Ramsakal’s beating him and his son. He has then described as to how the altercation ensued between the parties and how on failure of Bikram Singh, P. W. 4, to stop the quarrel the appellants assaulted Damari. He has clearly stated that Ramsakal gave a Motangana blow to Damari on his right hand and Kedar dealt him a lathi blow on his right temple on which Damari fell down and that, thereafter, Dani Jatuli assaulted him with lathis.
As already stated, he had himself received injuries at the hands of Ramsakal Koiri and the medical evidence shows that he had one bruise with small swelling 1 1/4″ x 1/2″ on both sides of head. He is, therefore, a most competent witness to speak about the occurrence, and there is nothing in his cross-examination which can discredit his evidence. The comment made against his evidence is that his statement in Court differs from the statement made by him in the first information report. In the first information report, he has described the assault part of the occurrence on Damari, in the following terms:
"The four accused persons, Ramsakal Koiri, Jatuli Koiri alias Jatashankar Koiri and Dani Koiri, sons of Ramkumar, and accused Kedar Koiri, son of Ramprit Koiri, resident of Dalsagar, injured Damari by assaulting him with bamboo lathis and Motangana. My brother Damari fell down there unconscious and his teeth were lock ed. Bikram Singh, Raghunandan Teli and Nir mal Dusadh, chaukidar of the village, came. I narrated the facts of the occurrence to them." It is argued on behalf of the appellants that the specific assault said to have been made by each of the appellants as stated in Court by this witness does not find mention in the first information report, and therefore, the evidence of this witness should not be accepted as correct on this point. I am unable to accept this contention. No doubt, the full detail of the occurrence with regard to the assault has not been given in the first information re(sic) but simply because the first information report contains a brief statement of facts it cannot be said that the evidence of this witness is discredited. Not other comment has been made with respect to the evidence of this witness, and I see no reason to disbelieve his evidence. (Then after discussing further evidence His Lordship concluded). (7) On consideration of the entire evidence as discussed above, I am fully satisfied that the occurrence took place in the manner as alleged by the prosecution. The question, however, that remains to be considered is as to what offence was commit ted by the appellants. So far as the appellant Ramsakal Koiri is concerned, there is no difficulty. He assaulted with his Motangana both Makdum Dhobi, P. W. 1 and Damari, the deceased, and he has been rightly convicted and sentenced under Section 323, Penal Code. The order of conviction and sentence passed against him, therefore, has to be maintained.
8. The case of the other three appellants, however, presents some difficulty because of the application ot Section 34, Penal Code. That section runs as follows:
“When a criminal act is done by several persons,
in furtherance of the common intention oi all, each
of such persons is liable for that act in the same
manner as if it were done by him alone.”
It is contended on behalf of the appellants that in order to fix constructive liability under Section 34, Penal Code the criminal act must have been done in furtherance of the common intention ol all and that there must have been a pre-arranged plan in pursuance oi which the criminal act was done, in support of this contention reliance has been placed on the case of — ‘Mahbub Shah v. Emperor’, AIR 1945 PC 118 (A), where their Lordships of the Privy Council have held that common intention within the meaning of Section 34, Penal Code implied a pre-arranged plan, and to convict the accused of an offence applying this section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.
Their Lordships, further held that care must be taken not to contuse same or similar intention with common intention and that the partition which divides ‘their bounds’ is often very thin. Bat as laid down by their Lordships oi the Supreme Court in
— ‘Kripal v. State ot Utter Pradesh’, AIR 1954 SC 706 (B), it is not necessary to prove a preconcert in the sense of a distinct previous plan for the applicability, of Section 34, Penal Code, and the common intention so bring about a particular result may well develop on the spot as between a number of persons, with reference to the tacts of the case and circumstances ol the situation. The question whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intention or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is one that has to be determined on the facts of each case.
9. In the present case, the learned Sessions Judge is held that the murder had been committed without premeditation in the heat of passion and without special brutality. The injuries that were round on the person of Damari Dhobi were as follows: "(1) One bruise 4" x. 2 1/2" with swelling on the right temple and forehead. (2) One bruise 5 1/2 x 3 1/2" on right side head with swelling. (3) One bruise 2" x 2" on both side head with swelling. (4) One bruise 2" x 2" on right thigh. 5. One bruise 2 1/2" x 1 1/2" on right forearm."
Even according to the evidence of the prosecution the appellants came to the place of occurrence only with lathis in their hands with which they assaulted the deceased, and, though death has occurred in this case, there is nothing to show any apparent severity in the blows that were inflicted. From the facts and circumstances of the case, it does not appear that these three appellants had ever any common intention to cause the death of Damari.
It is not, therefore, possible to uphold their conviction under Section 302 read with Section 34, Penal Code. But there can be no doubt that they had the common intention, which though not being in concert pursuant to the pre-arranged plan, developed on the spot, to beat Damari Dhobi with lathis in their hands which were likely to produce grievous injuries. On this view, therefore, these three appellants, in my opinion, would be guilty, not under Section 302/34 but under Section 326/34, Penal Code. Their conviction under Section 302 read with Section 34, Penal Code, therefore, is altered to one under Section 326 read with Section 34 of that Code.
10. The result, therefore, is that the appeal of the appellant Ramsakal Koiri is dismissed and the appeal of the other three appellants is allowed in part and the sentence of transportation for life passed on them is set aside. They, namely, Dani Koiri, Kedar Koiri and Jatuli Koiri, are convicted under Section 326 read with Section 34, Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years each. Appellant Ramsakal Koiri will surrender to the bail bond,
11. I agree.