THIPPERUDRAPPA AND Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The two appellants have been convicted under section 326 and sentenced to undergo R. I. for 8 years and 6 years respectively. The facts which may be taken to be established by the evidence are that one Kotrappa was beaten in a field near the village Chickamadapura, Challakere Taluk, on the morning of 13-1-1952, moved to the village in a cart within a short time and expired about an hour or two later. In Exhibit P-9 the earliest report of the occurrence the accused are mentioned to be the assailants and this is supported by the evidence of P. W. 14. The direct evidence to show that it is the accused who assaulted Kotrappa is only that of P. W. 14. P. Ws. have said that Kotrappa himself when questioned about the injuries shortly before his death attributed these to beating by accused. One of the witnesses says that the accused were running on the road near the place where Kotrappa was lying injured. From the medical certificate Exhibit P-6 it is seen that accused 1 sustained small injuries on the same day and not improbably while hitting Kotrappa. The learned trial Judge has believed the evidence of P. W. 14 and in the light of other facts referred to, we do not see any ground to disagree with the finding that the accused assaulted Kotrappa.

(2.) The determination of the offences of which the accused can be properly convicted is a point of some difficulty. The charge framed by the Magistrate mentioned it as one under Section 302, I. P. C. This was made subject to Section 34, I. P. C. by the amendment in the Court of Session. The learned Judge did not consider the materials to be sufficient to justify a conviction for murder but adequate for conviction under Section 326, I. P. C. which relates to causing grievous hurt with a deadly weapon. Existence of common intention to assault Kotrappa which is necessary for application of Section 34, I. P. C. may be inferred from the acts of the accused in jointly attacking him. This is not by itself enough to render them guilty of the offences under Section 326 and the fact that Kotrappa subsequently died cannot necessarily imply a common intention to cause death. There is absolutely no proof of any motive for the assault, of what led to it and of the part played by each in the incident. Of the injuries caused to Kotrappa only the first which is a fracture of the skull is serious and such as is likely to cause death in the opinion of the doctor. But for this injury the person may not have died. The evidence does not show who as between the two accused caused this injury. It may be that the common intention was only to give an ordinary beating as indicated by the other injuries and one of the accused suddenly in rage or excitement struck the man on the head. There are cases in which under such circumstances, the accused are convicted under Section 325, I. P. C. 'See Emperor v. Bhola Singh', 29 All. 282 (A)', --'Lal v. Emperor', AIR 1827 Lah 831 (B)' & 'Nathu v. Emperor', AIR 1942 All. 400 (C). The important factor to be noticed is that the weapons used were cutting instruments or daggers in these cases. In --'In re Nachal', AIR 1941 Mad 746 (D), and --'Emperor v. Keamatali Sheikh', ALR 1942 Cal 423 (2) (E), notwithstanding the occurrence of death due to the beating, the assailants were convicted under Section 323 on the view that intention to cause death or grievous hurt is not made out. The present case is of this kind as only sticks are said to have been used for the purpose of beating. The sticks may have been thick or thin, hard or soft as the eye-witness does not give any information about these and the sticks are not produced in the case. In view of all this, the offence of which the accused can be properly convicted is that of voluntarily causing hurt punishable under Section 323, I. P. C. The accused are said to have been in detention during the trial and undergone imprisonment for a few days before they were released on bail. The convictions of the appellants under Section 326, I. P. C. are altered to those under Section 323, I. P. C. and the sentence of imprisonment is reduced to the period already undergone. Mallappa, J.

(3.) I entirely agree. It has to be observed that the lower Courts often commit, in interpreting Section 34 I. P. C., the mistake committed in this case. If, apart from the person who actually causes an injury, other persons are present at the time the injury is caused, it does not necessarily follow that they are also guilty of the offence. Before they could be convicted under Section 34, I. P. C. of an offence committed by another, it must be proved in the first place that they and he had the common intention of causing the injury and in the second place the act was committed in furtherance of the common intention. As observed by Mahmood J. in -- 'Empress v. Dharam Rai', 1887 All W N 236 (F):