Order
1. This is an appeal as of right for the appellants. They were all acquitted by the trial court but on appeal by the State they were all convicted by the High Court under Section 302 read with Section 149 of the Indian Penal Code and sentenced to imprisonment for life.
2. Seven persons were arrayed in the trial court for the murder of one Hariji Moghaji Chavda. After the trial, the verdict of acquittal was pronounced and when the appeal in the High Court was pending, two of them died. They were arrayed in the trial court as A-1 and A-2 bearing the names Manuji and Gajaji respectively. The substance of the case against all the accused was this: A-1 to A-4 were brothers and the remaining three were the sons of three of those brothers. The deceased had a field in the village adjacent to which the accused had another field. It appears that there was some boundary dispute regarding the aforesaid lands. A quarrel took place between some of the accused on the one side and the deceased on the other side just on the previous day of the occurrence of this case.
3. On the date of occurrence i.e 28-5-1990 all the accused, some of them armed with dharia (a stick with a sickle-shaped metal fitted at the top) and others armed with sticks crossed over to the land of the deceased. Some of the assailants shouted for attacking the deceased. All the accused thereafter showered blows on the deceased with dharia or stick which each of them carried. The deceased fell on the ground, bled and died.
4. FIR was lodged by one of the brothers of the deceased at 5.45 p.m The incident was witnessed by PW 3 Manuji who is the brother of the deceased, PW 10 Ganpat who is the son of the deceased and PW 11 Ranjit Singh who is the son of PW 3 Manuji.
5. The injuries sustained by the deceased had been noted by PW 1 doctor who conducted the post-mortem examination on the dead body. Those injuries are important for dealing with this appeal and, therefore, we reproduce them in the way they were described by the doctor in the post-mortem report:
“1. Incised wound 2″ proximal to left wrist joint, obliquely placed, skin-deep 3″ × 1″ size.
2. Incised wound 3″ × 2″ bone-deep through middle of left forearm — forearm is attached to proximal part C tag of 2″ skin on palmar and lateral aspect.
3. 4″ × 2″ part of skin is avulsed through sharp cut on anterolateral aspect of lower part of left upper arm up to anterolateral aspect of left elbow joint.
4. Incised wound — cutting through upper part — head of left humerus — below greater tuberosity — cutting through lateral surface of upper arm skin, muscles, bones, artery and vein (axillary). The part below the cut is hanging through lateral fold of left axillary fossa through a tag of skin 3″ long.
5. Incised wound on back of scalp-occipital region 1″ × 1/2″ scalp-deep.
6. Contused lacerated wound 1 1/2″ × 1/2″ on left parietal region — transverse — scalp-deep.
7. Weal mark, reddish — lateral wall of abdomen (11) 3″ × 1″.
8. Weal mark — back of right chest across scapula 8″ × 1″— reddish.
9. Weal mark on right buttock, vertical — 4″ × 1″ — reddish.”
6. We are told that the trial court acquitted the accused mainly on the ground that PW 1 doctor found that there was no food in the stomach of the deceased and learned Sessions Judge held that if he had taken food at 12 o'clock, such a condition could not have been reached at the time when the incident happened. The High Court has rightly repelled the said reasoning because the incident happened a little before 5.00 p.m Even if the deceased had taken the last food at 12 noon the evacuation of the food from the stomach during recess is a very clear possibility. Another reasoning advanced by the trial Judge was that the three witnesses who spoke of the occurrence were the kith and kin of the deceased and hence they are all interested witnesses. That reasoning was too broad a ground for acceptance in dealing with a murder case particularly when the incident happened on the property of the deceased himself. Such persons would be the most natural witnesses as their presence on their own property cannot be doubted in the normal way.
7. The contused lacerated wound found on the parietal region of the head was only scalp-deep and that injury was attributed to A-2 Gajaji. All the other injuries of the deceased could only have been inflicted with sharp-cutting objects (except Injuries 7, 8 and 9 which were weal marks and they cannot be attributed to blows with sticks).
8. The resultant position is that only those who had possessed weapons with sharp-cutting objects can be roped in this criminal liability. When we perused the evidence of PW 3 we found that A-3 Jivanji, A-6 Pravinji and A-7 Ranjit Singh were the only three appellants who were armed with dharia and all others (except Gajaji who died already) had only sticks with them.
9. The only injury which caused the death of the deceased is the one described as Injury 4 mentioned above. That was inflicted on the left humerus which cut the artery and vein. The question is whether any one of the accused would have intended to inflict that injury, even if we assume that the said injury was sufficient in the ordinary course of nature to cause death. In an action described by the eyewitnesses where the deceased sometimes was standing up and at other times was running and was surrounded by the assailants, one particular injury on the humerus cannot be said to be a wound which was specifically intended by the assailant at whose hand that injury was caused. If that be so, it is difficult for us to bring the offence within the purview of clause thirdly of Section 300 IPC. In this connection we refer to the celebrated decision of this Court in Virsa Singh v. State of Punjab AIR 1958 SC 465, 1958 Cri LJ 818 which has later been described by the Judges of this Court as locus classicus.
10. We have no reason to disbelieve the evidence of PW 3, PW 10 and PW 11 when they said they have seen the incident and their uncle, the deceased was surrounded by the assailants including the armed persons. But we are unable to convict any one of them who was not possessed of a weapon with a sharp object, for the death of the deceased.
11. We, therefore, alter the conviction from Section 302 read with Section 149 to Section 304 (Part II) IPC read with Section 34 of the Code. Such conviction can be fastened only with A-3 Jivanji, A-6 Pravinji and A-7 Ranjit Singh. In the circumstances of this case each of those three persons can be sentenced to undergo rigorous imprisonment for a period of five years. We impose the said sentence on them.
12. Regarding the others, no offence beyond Section 447 IPC can be sustained. We therefore maintain the conviction as for all the accused under Section 447 IPC and impose a sentence of rigorous imprisonment for six months each.
13. In the result we direct all the appellants except A-3 Jivanji, A-6 Pravinji and A-7 Ranjit Singh to be released from jail forthwith unless they are required in any other case. As for those three accused they need be released only on completion of the sentence of imprisonment for five years after setting off the period covered by Section 428 of the Code of Criminal Procedure. We make it clear that the sentence imposed under Section 447 IPC will run concurrently with the other sentence imposed on the aforesaid three persons.
14. This appeal is disposed of accordingly.