ANDA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellants, who are four in number, have been convicted by the Rajasthan High Court under S. 302 read with S. 34 of the Indian Penal Code and sentenced to imprisonment for life. Previously they were convicted along with three others by the Sessions Judge, Merta under S. 302 but read with S. 149 of the Code. On the acquittal of the others the change in the section wad made. The appellants were charged in the alternative and no question of a new charge arises. Special leave was granted to the appellants limited to the question whether S. 302 read with S. 34 was applicable to the facts of the case. At the hearing before us Mr. Prem claimed that under the leave he was entitled to argue that the offence disclosed by the evidence did not fall within S. 302, Indian Penal Code, while Mr. Brij Bans Kishore contended that the only point on which leave was granted was whether S. 34, Indian Penal Code was properly invoked. In our opinion, leave was not granted on the latter point which does not present any difficulty at all but on the question whether the conviction for murder is justifiable.

(2.) The incident took place on June 29, 1961, at about 5 or 5-30 a. in. at a village called Hindas. One Bherun son of Girdhari Jat was assaulted by a number of persons and received numerous injuries. He died as result on the same day. Prosecution proved satisfactorily that Bherun and his father Girdhari were on inimical terms with the appellants and that certain criminal proceedings were going on between them. The prosecution further proved that Bherun had gone to Hindas with a servant to attend to his fields there. He was on his way to the fields, when he passed the house of Bhagu (one of the original accused but since acquitted) and was caught hold of by Anda (appellant No. 1) and Roopla (appellant No. 2) and was assaulted. They and the other accused dragged him inside the house and beat him severely. Bherun tried hard to avoid being dragged inside the house and clung desperately to the door jamb but Anda and Roopla struck him on his hands with their sticks to make him release his hold. His cries attracted the neighbours and one of them Moda (page No. W. 8) attempted a rescue but was beaten off. The evidence, proving the presence and participation of these appellants in the assault has been concurrently accepted by the High Court and the Sessions Judge and the findings on this part of the case must be considered as established. There can be no question that the appellants were actuated by a common intention which must have been the result of a prior concert, regard being had to the time, and the place and the circumstances of the visit of Bherun. Section 34, Indian Penal Code as we shall show presently, was thus rightly invoked and that aspect of the case furnishes no difficulty whatever.

(3.) Bherun was examined by Mr. C.L. Sablok, Medical Officer in-charge, Merta City Dispensary and he is witness no. 4 for the prosecution. Mr. Sablok found Bherun in great pain and sinking. He noted the injuries observed by him in his report (Ex. P. 1) which he was able to verify more fully when he performed the autopsy after Bherun's death. His second report is Ex. P. 2. The two examinations revealed the existence of over thirty wounds and injuries. There were fractures of the right and left ulnas, second and third metacarpal bones of the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula, the tibia being fractured at two places and fracture of the left fibula. These fractures lay under large bruises and lacerated wounds. Mr. Sablok could specify nine such bruises in addition to multiple bruises running in different directions on the right buttock which he was unable to count. There were as many as sixteen lacerated wounds on the arms and legs and a hematoma on the right forehead and a big bruise on the middle of the chest. When Bherun was admitted in the hospital he was bleeding profusely from his injuries and the right tibia which was fractured at two places was splintered and the broken ends were protruding. At the site of other injuries muscle tags were protruding out of the wounds. At the autopsy the lungs were pale and the heart empty which showed that enormous quantity of blood must have been lost. The opinion of Mr. Sablok on the cause of death was: