N Criminal Appeal No 181 of 1971 Appeal by special leave from the judgment and order dated the 25th and 28th September 1970 of the Bombay High Court Nagpur Bench in Criminal Appeal No 24 of 1968 with Crl
A No 100 of 1968
Harjinder Singh for the appellant section B Wad and M N Shroff for the respondent The Judgment of the Court was delivered by SHINGHAL J
This is an appeal of Ninaji Raoji Boudha hereinafter referred to as Ninaji and Raoji Gianu Boudha hereinafter referred to as Raoji against the appellate judgment of the Bombay High Court dated September 2528 1970
The Additional Sessions 429 Judge of Khamgaon convicted them of offences under sections 325 and A 147 IPC and sentenced them to rigorous imprisonment for five years and a fine of Rs 50 for the offence under section 325 and to rigorous imprisonment for six months and a fine of Rs 25 for the offence under section 147 IPC
The High Court held on appeal that they were guilty of the offence under section 302 read with section 34 IPC and sentenced them to imprisonment for life by setting aside their acquittal for  the offence of murder of Bhonaji
Ninaji and Raoji were also convicted for an offence under s 325 read with s149 IPC for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji s sons Samadhan and Rambhau Mr Harjinder Singh Amicus Curiae stated on behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence and that he would confine the appeal to their conviction for the offence under section 302 34 IPC for causing the death of Bhonaji
We would therefore concern ourselves with the incident which resulted in Bhonaji s death and the conviction of the appellants therefor
Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commission of various offences in an incident which took place in mauza Narkhed in Buldana district on September 29 1966 as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other
It was alleged that on September 29 1966 at about 6 pm there was a quarrel between the two factions at Gothan  near the house of Bhonaji because of the impounding of a she but also of Ananda who was one of the nine accused in the case by Bhonaji s third son Madhukar and of the cow of Ninaji s nephew Narain
lt was alleged that the nine accused including the present appellants went to gothan 
There was some altercation between accused Ananda and Samadhan and the parties beat each other
r Samadhan and his relations then went to their house which was close by
Samadhan who had received some injuries at gothan  went inside his house to dress them up
His father Bhonaji sat on an oota  in front of the house
It is alleged that appellants Ninaji and Raoji and accused Parashram gave a beating to Bhonaji at the oota as a result of which he fell down and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there
Reports of the incident were lodged at the police station
Bhonaji succumbed to his injuries on October 2 1966
The police investigated and challaned nine accused including appellants Ninaji and Raoji
The Additional Sessions Judge convicted them all but acquitted Parashram and Ram Das
While accused Ninaji and Raoji were convicted and sentenced as aforesaid the remaining five accused were convicted and sentenced for offences under sections 325 and 147 IPC Or and 325149 and 147 IPC As has been stated this appeal is by Ninajiand Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death
It has been argued by Mr Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present 13 L522SCI76 430 at the incident which took place at gothan  and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his oota 
We have been taken through the evidence on the record and we find that there is no justification for the argument that the fatal injury was caused to Bhonaji at gothan  and not in front of his house
We have gone through the appellate judgment of the High Court and we are satisfied that while Bhonaji s house was quite near the gothan  there can be no doubt that the accused went to his house after tho beating which had taken place at gothan 
As we shall show in a while there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there
The other argument of Mr Harjinder Singh which however requires serious consideration is whether the appellants Ninaji and Raoji have rightly been convicted by the High Court for the offence under section 302 1  read with section 34 IPC
The finding of the High Court in this respect is as follows The evidence very clearly shows that these two persons  were responsible for assaulting Bhonaji as a result of which Bhonaji died
It may be that they had in the beginning no common object or intention to assault Bhonaji but it does appear from the circumstances that these two persons and i  may be Parashram formed a common intention at that moment and both of them dealt blows on Bhonaji which were on vital parts of the body such as head and neck
The blows were given by sticks though the description of the sticks cannot be known because the sticks which have been recover ed in this case cannot be said to be sticks connected with the crime as such
But from the nature of the blows which were given on the person of Bhonaji it appears that the sticks were quite heavy and the blows of the sticks actually resulted in the death of Bhonaji
When the blows were 
 given the accused must have intended to cause those injuries to Bhonaji
They must be taken to have knowledge that Bhonaji was an old man and on account of the blows given by these accused his death was likely to be caused particularly when the blows were given on vital parts of the body
They must be taken to have knowledge that the injury they intended to cause to Bhonaji was likely to result in the death of Bhonaji
The post mortem examination of Bhonaji shows that there were several fractures and fissures in the p head and the blows must have been dealt with quite an amount of force
The accused Nos 6 and 7 Ninaji and Raoji therefore would be guilty of an offence which would come under section 300 fourthly because the accused Nos 6 and 7 ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability r 
cause death or such bodily injury as is likely to cause death
 431 A perusal of the judgment shows that while the High Court took A the view in the beginning that the appellants had no common object or intention to assault Bhonaji it took the view that they and may be Parashram formed a common intention at that moment
 It is not clear from the judgment at what moment of time such a common intention could be said to have been formed by them
Moreover the High Court has taken the view that both the appellants dealt blows on vital parts of Bhonaji s body which resulted in his death and that when the blows were given the accused must have intended to cause those injuries to Bhonaji with the knowledge that he was an old man and his death was likely to be caused by those blows
Therefore the question which requires consideration is whether it could be said that there was any evidence to show that more than one blow was inflicted on any vital part of Bhonaji s body and whether both the assailants could be said to have inflicted the fatal injury with the knowledge that it was likely to cause death
The High Court has stated that the post mortem examination showed that there were several fractures and assures in the head and that the blows must have been dealt with quite an amount of force
Then t it has been further held by the High Court that the accused ought to p have known that their action in inflicting the injury was so imminently dangerous as to cause the death of an old person like Bhonaji
As we shall show there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law as well
It is not disputed before us that there was an incident at gothan  where there was a beating between the parties of the accused and Samadhan and that Samadhan and his father Bhonaji returned to their house thereafter
Samadhan PW19 has himself stated that he went inside his house while his father Bhonaji sat outside and that when he Samadhan was tying a towel on his head to cover the injury which had been inflicted at gothan  the party of the accused came to his door and called him out
Sri Ram PW 5 and Sukhdev PW 7 have stated much to the same effect
The evidence on record therefore showed that the common intention of the appellants was to settle their scores with Samadhan and not Bhonaji
In fact the High Court has also held as follows It does not appear that any of these persons had initially any idea of assaulting either Bhonaji or Rambhau but they seemed to be only after Samadhan
While Samadhan was being asked to come out of the house the deceased Bhonaji must have abused or said something which infuriated some OF the accused persons and it is on account of this it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji
 It cannot therefore be said that the common intention of the accused was to cause the death of Bhonaji
In fact the statement of Sri Ram PW 5 shows that at the time when the accused came to Bhonaji s house in search of Samadhan Bhonaji was sitting on the platform or 432 oota 
Sukhdev PW 7 has also stated to the same effect and the statement of Samadhan PW 19 also shows that his father was sitting in front of the steps of the house when they asked Samadhan to come out of the house
It is therefore quite clear that the accused did not give a beating to Bhonaji even though he was sitting on the platform outside his house
On the other hand they passed him by while calling Samadhan to come out
They could not therefore be said to have the common intention or object of inflicting any injury on the person of Bhonaji till then
It will be recalled that the High Court has not stated at what point d time they could be said to have formed the common intention of causing the death Bhonaji
It appears from the statements of Rambhau PW 1 and Tulsi Ram PW 10 that on returning from gothan  Bhonaji asked Tulsi Ram who was a chowkidar to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station
That appears to be the point of time when the accused diverted their attention to him and gave him a beating but there is nothing to show that their intention was to inflict any fatal injury
As has been stated the High Court has taken the view that more than one blow was given on vital parts of Bhonaji s body and that caused several fractures and fissures in the head
We have examined the correctness of that finding
It has been stated by Dr Garge PW 40 that he performed the post mortem examination on the dead body of Bhonaji and that on external examination he noticed only one contusion 2 in diameter on the right temporal region of the head
He made an internal examination and found that there was a depressed fracture of the skull partly of the right temporal bone and right parietal bone and fissured fractures of the left parietal frontal and occipital bones the lines of which were starting from the border of depressed fracture No 1 and going away in different bones
 The witness stated further that the depressed and fissured fractures were due to blow by some hard and blunt substance or by a fall from height with head downwards on a hard substance
 It is therefore quite clear that there was only one blow on the head which caused Bhonaji s death and the High Court misread the evidence in taking the view that more than one blow was given on the head of the deceased
This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under section 302 read with section 34 IPC
Here again we find that the evidence on the record has not been read correctly
Kalawati PW 2 Smt
Deoki Bai PW 3 SA Ram PW S and Sukhdev PW 7 have been examined as eye witness of the beating which was given to Bhonaji
The High Court has held that their evidence was acceptable and that there was nothing to cast any doubt on their evidence
Kalawati PW 2 stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick but did not state on what parts of the body those blows were inflicted
She stated further that appellant Raoji gave a 433 blow with a stick on Bhonaji s back near the neck She however admitted during her cross examination that she could not explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonaji s body
Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased
We have examined the statement of Smt
Deoki Bai PW 3 also
She is the daughter in law of the deceased being the wife of Rambhau
She stated that she had heard the noise but came out only after feeding her child and saw that Bhonaji hat fallen down on his face and the appellants were running away
While her statement may go to prove the presence of the appellants at the place of incident it does not prove that both of them dealt blows on the head of the deceased
Sri Ram PW 5 stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji and that appellant Raoji gave a blow with a khunt  near his neck
In his cross examination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji
His statement could not also therefore prove the infliction of blows by both the appellants on the head of the deceased
That leaves the statement of Sukhdev PW 7 for consideration
He merely stated that while he could not state the exact number of the accused or their features he saw that out of seven or eight persons three beat Bhonaji with sticks
He did not state about the infliction of any injury on the head by any of the appellants
It would thus appear that the High Court could not possibly have reached the conclusion on the basis of the statements of Smt
Kalawati PW 2 Smt
Deoki Bai PW 3 Sri Ram PW S and Sukhdev PW 7 that more than one blow was inflicted on the head of the deceased or that the one blow which was found there as a result of the post mortem examination was inflicted by the one or the other of the two appellants
The evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for as has been shown they found him sitting outside the house on his oota  but passed him by in search of Samadhan who was dressing his injuries inside the house
Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station
It was then that injuries were inflicted an his person by the appellants Ninaji and Raoji
Out of those injuries one was a forceful blow on the head which caused a depressed fracture and fissures all over and resulted in the ultimate death of Bhonai The other injuries were on the neck back side knees and the right elbow of the deceased and were simple injuries
As has been shown
there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji
The other blows did not fall on any vital part of the body and in the absence of evidence to establish that their common intention was to cause death it appears that the appellants had the common intention of causing grievous injury with the lathi and the khunt 
They could therefore be convicted of an offence under section 325 read with section 34 IPC and not section 302 read with section 34 IPC 434 It may also be mentioned that while the High Court stated at one place that the appellants must be taken to have the knowledge that the injury which they intended to cause to Bhonaji was likely to result in his death it observed at another place that the appellants were guilty of an offence falling under section 300 fourthly because they ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death No categorical finding has therefore been given by the High Court one way or the other
On the other hand as has been shown the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the record and to which reference has been made above
The appeal is therefore allowed to the extent that the conviction of the appellants Ninaji and Raoji is altered from section 30234 IPC to one under section 32534 IPC and they are sentenced to rigorous imprisonment for five years thereunder
Their sentences shall run con currently
VPS Appeal allowed in part


Summary:
Nine accused were charged with offences of murder and causing hurt
The trial Court acquitted two and convicted the others under sections 325 and 147 IPC on appeal by the State the High Court convicted the two appellants also under section 302 read with 8 34
IPC Partly allowing their appeal to this Court  HELD The High Court has not examined the liability of the accused with due regard to the facts and circumstances of the case
Instead of giving a categorical finding the High Court stated at one place in its judgment that the appellants must be taken to have had the knowledge that the injury which they intended to cause to the victim was likely to result in his death and in an other place that the appellant were guilty of an offence under section 300 fourthly because they ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim that their act must in all probability cause death or such bodily injury as is likely to cause death
 But the evidence on record shows that the appellants did not have the common intention of giving a beating to the deceased when they reached his house but were only bent upon settling scores with his son
It was only when the deceased asked another witness to get ready a bullock cart for making a complaint about the beating of his son that the appellants inflicted injuries on him
But there was nothing to show that their intention was to inflict any fatal injury
Only one of the injuries was a forceful blow on the head of the deceased and it resulted on his death
But the other injuries were on the back of the neck knees and right elbow of the deceased and not on any vital part of the body
Therefore the appellants had only the common intention of causing Grievous hurt
Since there was no reliable evidence to show which of the two appellants gave the fatal blow the appellants could only be convicted of an offence under section 325 read with section 34 IPC 431F 432C D P G 433E 434C