JUDGMENT 1. - This appeal arises out of the judgement dated 23.12.1970 of the Sessions Judge Udaipur whereby the three appellants Hazari, Mewa and Teja have been convicted under section 302 read with section 34 I.P.C. for causing the murder of Khema and each one of them is sentenced to imprisonment for life. 2. There is a piece of agricultural land bearing Khasra No. 1051 situated on the out skirt of village Jetpura under police station Bhim District Udaipur. This Khasra popularly known as 'Dhira Talab Ki Nadi' has been recorded as of 'Shamletdeh' but it was cultivated sometime by Hazari and sometime by the deceased Khema. According to the prosecution Khema cultivated this field in the Kharif of Shamletdeh year 2026 and a jowar crop was standing in the night of about 11/2' on 24.8.69. At about 10 a.m. on that day Hazari with his wife Mst. Tulsi and his brother-in law (wife's brother) Teja and Mewa went to the field with object of overrunning the crop of Khema. Hazari started ploughing the field while the three other accused sat on the 'Medh' of the field. Mst. Ladu daughter of the deceased Khema was grazing her cattle in the nearby field. The deceased came from the adjoining field & went to the field No. 1051 where Hazari had started ploughing in his attempt to overturn the crop of jowar sown by Khema. Khema asked Hazari not to plough the field and destroy his crop. He also entreated him that a litigation was already pending and he should wait for the decision of the case. But Hazari did not listen to his request and continued to plough. Khema is said to have used Hazari. Hazari then inflicted a blow by lathi on the head of Khema. The two other accused Teja and Mewa also joined in giving beating to Khema by lathis. Khema fell down and according to the prosecution evidence the accused contined to inflict blows as a result of which his legs & hands were fractured. As soon as there occurred an altercation between Khema and Hazari, Khema's daughter Mst. Ladhu raised a cry that his father is being belaboured and it attracted the attention of Kaloo Ram Patwari (P.W.3), Narain (P.W.7), Mangi Lal (P.W.8) and Kalu Balai (P.W.9), who were passing that way for going to the 'Pal' of Silot Sagar. As soon as there occurred an altercation between Khema and Hazari, Khema's daughter Mst. Ladhu raised a cry that his father is being belaboured and it attracted the attention of Kaloo Ram Patwari (P.W.3), Narain (P.W.7), Mangi Lal (P.W.8) and Kalu Balai (P.W.9), who were passing that way for going to the 'Pal' of Silot Sagar. Kalu Ram Patwari asked his companions to go ahead to the place of occurrence. He also followed them, as he himself could not run being an elderly man. Kalu Balai cried out to accused as to why they were beating Khema. On hearing this Hazari, Mewa and Teja ran away towards the 'Auo' of Man Sagar. Mst. Tulsi, who was also there with a lathi ran towards the well. Narain, Mangi lal and Kalu Balai chased the three accused but Kaloo Ram stayed back with Khema who was lying seriously injured and profusedly bleeding. He enquired from Khema as to what had happened and according to him Khema informed him the details of the incident. After a while Ghisa (P.W.6), s/o Khema with others came on the scene of occurrence. Soorajmal (P.W.2), who is the resident of village Umedpura and which is at a distance of a mile only from the village Jetpura also came on the place of occurrence. He also saw Khema and advised them that he should be removed to the Beawer Hospital for prompt medical attention. Khema was then placed on a cot & taken to the bus stand. From there he was taken by bus to the Beawer hospital. After he was admitted to the hospital, he succumbed to his injuries at 8.20 p.m. on the same day. Dr. Arjun Sahai Verma, Medical Jurist, of Amritkaur Hospital Beawer performed the post-mortem examination of the dead body of the deceased Khema, on 25.8.69 at 10.00 a.m. Since there was no means of transportation available at the night, Soorjmal went to the police station, Bhim, on the next morning i.e. on 25th August 1969 and lodged an oral report at the police station Bhim at 9.30 a.m. The police registered a case against the three appellants and Mst. Tulsi under section 302 IPC. The police completed the necessary investigation and arrested the three appellants and Mst. Tulsi and put up charge sheet against them in the court of Munsiff Magistrate, Bhim. Tulsi under section 302 IPC. The police completed the necessary investigation and arrested the three appellants and Mst. Tulsi and put up charge sheet against them in the court of Munsiff Magistrate, Bhim. After committal proceedings the learned Magistrate sent to the court of sessions all the four accused to stand their trial under section 302 IPC read with section 34 IPC. Before learned Sessions Judge the prosecution examined as many as 18 witnesses and placed on record necessary memos. Out of four accused, Hazari admitted to have caused all the injuries to Khema but he pleaded that he did so in exercise of his right of private defence to person and property. The other three accused pleaded that they were not present at the place of occurrence and took no part in causing injuries to deceased Khema. On behalf of the defence three witnesses (D.W. 1) Khema, (D.W.2), Pokhar and (D.W.3) Onkar were examined. The learned trial Judge found Hazari, Mewa & Teja responsible for committing the murder of Khema, in furtherance of the common intention and accordingly convicted them under section 302 read with 34 IPC. As some of the eye witnesses had not mentioned the name of Mst. Tulsi as having participated in the crime he gave benefit of doubt to Mst. Tulsi and acquitted her. The three accused were convicted & were sentenced to imprisonment for life. Hazari, Mewa and Teja have now, in this appeal, challenged their conviction before us. 3. It has not been disputed on behalf of the appellants that Khema died on account of injuries having been caused to him. According to the testimony of Dr. Arjun Sahai Verma (PW 4) Khema was found to have received one confused wound on the front and below the left knee, three confused wounds on the right leg, and haematominon on the left parietal region with a base of 11/4'. On opening the body, the Doctor found that there was a depressed fracture of the right parietal bone vertical in direction He also found right tibia & the left tibia and the fibula fractured into pieces & they were profusely bleeding. The 2nd and the 5th metacaroal bones of the right and left hands respectively were found fractured. The doctor opined that all these injuries were ante-mortem and the head injury was sufficient in the ordinary course of nature to cause death. The 2nd and the 5th metacaroal bones of the right and left hands respectively were found fractured. The doctor opined that all these injuries were ante-mortem and the head injury was sufficient in the ordinary course of nature to cause death. He proved the post-mortem report Ex. P/4. From this evidence there is no manner of doubt that Khema met homicidal death and the cause of his death were the injuries received by him. 4. On behalf of the prosecution (PW 3) Kaluram, (PW 7) Narain, (PW 8) Mangi Lal and (PW 9) Kaloo Balai were examined as eye witnesses. Mst. Ladu has also been examined as (PW 1). Apart from the evidence of the eye witnesses there are two dying declarations. One of them is proved by Kalu Ram Patwari (PW 3) and the other by Soorajmal (PW 2). Learned counsel for the appellants has strenuously urged that the eye witnesses have only been introduced in the case and in fact there was none, who saw the incident. The names of the eye witnesses have been mentioned in the first information report Ex. P/1. In cross-examination of these witnesses, nothing has been elicited to show that these witnesses were not present. There is no material on record to accept the suggestion of Mr. Chatterjee that the eye witnesses are only got up witnesses. Ladu is the daughter of the deceased Khema. She was grazing her cattle in the nearby 'NANDI'. She was at a distance of about 40', when she saw her father asking Hazari not to plough his field and to overturn the crop. As soon as she found that there was an altercation between them and Hazari and his associates, were going to belabour Khema she raised a cry. Kaloo Ram (PW 3), a patwari of the patwari-circle Jetgarh, was going with Kaloo Balai (PW 9) to Silot Sagar. According to this witness he had to realise irrigation charges at that place. Mangu Gujar alias Mangi Lal (PW 8) and Narain Guja (PW 7) were also going to Silot Sagar with them, and all of them were together. The cry raised by Mst. Ladu attracted their attention and according to the witnesses they saw Khema standing and the four accused were giving beating to him by lathies. They were at a distance of 200'. The cry raised by Mst. Ladu attracted their attention and according to the witnesses they saw Khema standing and the four accused were giving beating to him by lathies. They were at a distance of 200'. Three of them quickly ran to the place of occurrence and while they were within 25 paces, they saw, the three male accused running toward the 'Auo' of Man Sagar. Kaloo Ram also reached the place of occurrence and he stated attending to the injured. We find nothing unnatural in the presence of these witnesses at the place of occurrence and we are not prepared to accept the submission of Mr. Chatterjee that the witnesses were introduced to help the prosecution case. 5. After having read the evidence of these witnesses, we are inclined to accept their testimony. Kaloo Ram, Mangi Lal and Kalu Balai stated that all the accused were inflicting lathi blows on Khema. None of them assigned a particular blow by a particular accused. Narain however, stated that Hazari gave blow on the head and Mewa and Teja inflicted injuries on the legs of Khema by lathies on account of which his legs were broken. Soon after Soorja Mal also reached the place of occurrence and saw Khema lying injured and profusely bleeding. Ghisa (PW 10), who is the son of the deceased also went to the place of occurrence as soon as he came to know about the incident. One criticism that has been levelled against the testimony of (PW 7). Narain is this, that he omitted to say in his statement in the police (Ex. D/3) that the head injury was caused by Hazari and the injuries on the legs were on account of the lathi blows given by Mewa and Teja. We are unable to accept this omission as a discrepancy still less of a material character. The witness had explained when confronted with his statement in the police that nobody asked him as to who gave the blow on the head and as such he did not state before the police. Another if ifirmity pointed out in the statement of Narain is that in the police statement Smt. Tulsi was also referred to as one of the assailants of Khema; where in his statement at the trial he stated that Mst. Another if ifirmity pointed out in the statement of Narain is that in the police statement Smt. Tulsi was also referred to as one of the assailants of Khema; where in his statement at the trial he stated that Mst. Tulsi was standing nearby with a lathi but she did not participate in actual giving of lathi blows. It may be pointed out at once that the statement recorded in the police is omnibus type of statement. It does not impress us that he made a false statement, at the trial. That apart there has been no enmity between the witnesses and the accused. According to this witness, Hazari was distantly related to him. He stated that Hazari's elder brother's daughter Smt. Dhanni was married to Bhagu who was his uncle. We are not inclined to disbelieve this witness & in our opinion he has stated the truth. It is true that the other eye witnesses namely Kaloo Ram, Mangi Lal and Kaloo Balai did not attribute the head injury to Hazari. But this may be due to lack of observation. In any case, it does not help the defence. An argument has been built up by Mr. Chatterjee that in any case, these witnesses have falsely stated with regard to Mst. Tulsi who has been found to be not guilty by the trial Judge. As a matter of fact Mst. Tulsi has not been held to be innocent. She was found to have been present at the place of occurrence and that too with a lathi. As some of the witnesses did not mention her name as one of the assailants the learned trial Judge gave her the benefit of doubt. In these circumstances it cannot be said that the eye witnesses, in having regard to her became unreliable for reason that she was acquitted by the trial Judge. 6. Now adverting to the dying declaration proved by (PW 3) Kaloo Ram there is no reason to disbelieve it. No enmity has been proved or suggested, of this witness with the accused. Kaloo Ram (PW. 3) reached the place of occurrence as discussed above. While his three companions namely Narain, Mangi Lal and Kaloo Balai had gone after the three accused Hazari, Mewa & Teja; Kaloo Ram Patwari attended the injured Khema. He enquired from him as to what had happened. Kaloo Ram (PW. 3) reached the place of occurrence as discussed above. While his three companions namely Narain, Mangi Lal and Kaloo Balai had gone after the three accused Hazari, Mewa & Teja; Kaloo Ram Patwari attended the injured Khema. He enquired from him as to what had happened. Admittedly he did not die instanteously as he succumbed to his injuries only in hospital. There is no reason to disbelieve Kaloo Ram Patwari when he stated that Khema told him that Hazari, Mewa & Teja inflicted lathi blows and were responsible for the injuries caused to him. 7. The prosecution has placed reliance on another dying declaration which was said to have been made by Khema to Soorj Mal while he was being escorted to the hospital. From the place of occurrence he was brought on a cot. Soorjmal (PW 2) was with him Admittedly there were other persons as well including (PW 10) Ghisa. According to Soorjmal (PW 2) himself while they reached the bus stand, Khema gained consciousness and he was given some water to drink and at that time on his asking him Khema told him the circumstances in which he was beaten by the accused persons. Soorajmal admitted that at that time Ghisa, another Ghisa Lumberder Nathu, and Ganga Ram were present. This version has not been supported by Ghisa (PW 10). None of the other persons was produced to support this dying declaration either. We, therefore, do not think it safe to rely on this dying declaration said to have been made to Sooraj Mal (PW 2). 8. Learned counsel appearing on behalf of the appellants has argued that FIR was made after the delay of about 23 hours. The explanation for lodging the report with delay is contained in the FIR itself. Khema was seriously injured. He was taken to the hospital. He was taken on a cot and then by bus. Soon after he was admitted in the hospital, Khema died at 8.20 p.m. In his sworn testimony Soorjmal stated that there was no means of transportation from Beawar to the police station in the night. He thus supported the explanation given in the FIR itself. In our opinion the delay has been satisfactorily explained. We, therefore, hold that the FIR which was lodged at 9.30 a.m. on 25.8.69 was not made with any unreasonable delay. 9. He thus supported the explanation given in the FIR itself. In our opinion the delay has been satisfactorily explained. We, therefore, hold that the FIR which was lodged at 9.30 a.m. on 25.8.69 was not made with any unreasonable delay. 9. Next question that arises for our consideration is as to what offence has been committed by the accused persons. Hazari, Mewa and Teja have been convicted by the learned trial Judge under Section 302 read with Section 34 IPC. It has been contended by Mr. Chatterjee that Section 34 has got no application in the circumstances of the case. We have considered this submission with great care. (PW 13) Ladhu Lal is the sarpanch of the Vikas Panchayat at Jetgarh. According to him the agricultural land bearing Khasra No. 1051 was cultivated by Khema and Jowar crop was standing in the height of 11/2". It has also come in evidence that Hazari also cultivated this land sometime in the earlier years. The incident took place in the year 1969 corresponding to the Samvat year 2026. The evidence is unequivocal on the fact that the Khasra No. 1051 was in possession of Khema and he had sown the jowar crop on it. That fact is further supported by the testimony of (PW 15) Ram Narain. It is further borne out from evidence that a litigation was pending between Khema on the one hand and Hazari on the other in the court of Assistant Collector. Khema was held to be in possession of the field in question. On appeal by Hazari the case was remanded. The litigation had not come to an end and as such Hazari had no right or title to go on the land in question and plough the field Khasra No. 1051 which was already cultivated and on which jowar crop was standing Hazari had gone on the field with the plough and a pair of bullocks. Mewa and Teja, who are his brother-in-laws and who belong to a different village Gayaria in the police station, Badnore, were with him. Hazari's wife Mst. Tulsi was also there with them. At the time Hazari started ploughing the field in his attempt to overturn the crop of Khema, Mewa and Teja and Mst. Tulsi were sitting on the 'Medh' of the field. Hazari's wife Mst. Tulsi was also there with them. At the time Hazari started ploughing the field in his attempt to overturn the crop of Khema, Mewa and Teja and Mst. Tulsi were sitting on the 'Medh' of the field. From these facts the inference is irresistible that Hazari, Mewa and Teja had gone to the field in question with the common intention of overturning the crop of Khema. The presence of Mewa and Teja in the field cannot otherwise be explained. All of them must have gone there, in our opinion, to use force as well in case their entry or their action was resisted. Khema had gone to the field and remonstrated with Hazari and asked him to refrain from cultivation the field. Hazari did not listen to him and continued to destroy the crop of Khema. Khema was not armed but used filthy language and as a result of which Hazari with his two associates Mewa and Teja assaulted him and caused the injuries on the person of Khema. As a result of which he fell down, became unconscious and then succumbed to his injuries in the hospital. From these facts and circumstances we can legitimately infer that all these accused had gone to the place of occurrence with a common intention of causing grieveous hurt and in furtherance of that common intention they caused injuries to khema. It is, however, difficult for us to accept the contention of the learned Deputy Government Advocate that the common intention was to kill Khema. It is true that Hazari inflicted lathi blow on the head of the deceased and it was responsible for his death. But it was his individual act and other two accused cannot be held responsible for the head injury. We are, therefore, of the opinion that Hazari is guilty for causing murder of Khema as he gave the fatel blow on the head which was such a bodily injury as was sufficient in the ordinary course of nature to cause death. So far the injuries caused on the right and the left legs and the hands the three accused can be held guilty under section 325 read with 34 IPC. 10. On behalf of the appellants it has been argued by Mr. So far the injuries caused on the right and the left legs and the hands the three accused can be held guilty under section 325 read with 34 IPC. 10. On behalf of the appellants it has been argued by Mr. Chatterjee that the accused were charge-sheeted under section 302 read with 34 IPC and as such it shall not be lawful on our part to convict Hazari for the specific offence under section 302 IPC. We have been referred to the charge framed against Hazari. The committing Magistrate framed charge against Hazari which when translated is in the following words:- "That you, on 24.8.69 at about 11.00 a.m. in furtherance of the common intention of killing Khema caused injuries to him by lathies and you, wilfully broke his head, hands, and legs which were sufficient in the ordinary course of nature to cause death. It resulted in the death of Khema. You, therefore, committed an offence punishable under section 302 read with Section 34 IPC." 11. This charge-sheet was adopted by the learned Sessions Judge. The other accused were also similarly charge-sheeted. From the charge-sheet as framed it is abundantly clear that Hazari was informed that he inflicted lathi blows on account of which he broke the head and legs of Khema which resulted in his death. It cannot be said from this charge that Hazari was kept unaware of the fact that he had committed the offence under section 302 IPC. Dr. Tiwari learned Deputy Government Advocate invited our attention to Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 . In that case the two accused W and R were charged under section 302 read with S 34, Penal Code. The charge against W was as follows: "That you, on or about the 12th day of February, 1953, at Civil Lines, Jabalpur went with your brother to the house of Mrs. Waters (PW 20) at about 7 p.m. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable under section 302 of the Penal Code read with s. 34 of the Indian Penal Code". Exactly similar charge with a necessary change of name was framed against the accused R. There was no separate charge under section 302 IPC against the accused. Exactly similar charge with a necessary change of name was framed against the accused R. There was no separate charge under section 302 IPC against the accused. Courts below held that accused W inflicted a fatal blow and held him guilty under section 302 Penal Code while the other accused R was acquitted for the absence of evidence against him. Their Lordships of the Supreme Court observed: "Having regard to the nature of the charge framed the omission to frame a separate charge under S. 302, Penal Code against W was only a curable irregularity which in the absence of prejudice would not affect the legality of conviction under Section 302 Penal Code." 12. In the instant case the charge framed by the trial Judge is on a better footing and we do not think that the conviction of Hazari would be illegal if he is convicted under section 302 IPC in the absence of an alternative charge unless there has been a prejudice to the accused. It might as well as noticed that Hazari had in his statement admitted that he alone was responsible for causing injuries, though he stated it was in the exercise of his right to private defence to person and property. Learned counsel for appellants has not canvassed before us the plea that the accused Hazari acted in right of private defence to person and property. He has frankly conceded that the plea is not made out. However, he urged before you that the incriminating circumstances that Hazari gave a lathi blow on the head of Khema was not put to him under section 342 Cr. P.C. Here reference may be made to K.C. Mathew & others v. State of Travencore Cochin, AIR 1956 SC 241 . Their Lordships had an occasion to determine the purpose and scope of section 342 Cr. P.C. Bose J. who spoke for the court observed as follows:- "The purpose of section 342 is set out in its opening words - "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him." If the accused is not afforded that opportunity, he is entitled to ask the appellate court to place him in the same position as he would have been in had he been asked. In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just and same way as it would have done if it had been there all along. But if he does not ask this in the last Court of fact he is in little better position when the case comes here than he would be in had he, say, omitted to call, in his defence, a witness who, he says, would have deposed in his favour. In very exceptional case he might be allowed to call such a witness even at such a stage, but if he does not ask for that when his case is under appeal he would normally have but slender hope of succeeding here. It is true he is in a stronger position when s. 342 is in question because the section places a solomn and serious duty on the Court, and the accused can very rightly and properly complain if the Court fails to do the duty; but when all is said and done, he can not claim to be placed in a better position than he would have been in had the court discharged its duty at the outset. Therefore, all he is entitled to say on appeal is, "I was not asked to explain this matter. Here is my explanation; this is what I would have said. Please consider it." But if he does not take up that position at the appellate stage and complains of prejudice for the first time here, the inference is strong that the plea is an after though and that there was no real prejudice." 13. On behalf of Hazari appellant, nothing has been stated before us by way of explanation of the fact that Hazari was responsible for giving the fatal injury. It was (PW 7) Narain who stated in the examination-in-chief that Hazari gave the lathi blow on the head. The witness was cross-examined. Nothing has been elicited in the cross-examination to demolish this statement of the witness. In our opinion if a specific question has not been put to the witness no prejudice is caused. It was (PW 7) Narain who stated in the examination-in-chief that Hazari gave the lathi blow on the head. The witness was cross-examined. Nothing has been elicited in the cross-examination to demolish this statement of the witness. In our opinion if a specific question has not been put to the witness no prejudice is caused. The learned counsel for appellant has been given full opportunity to take up the position in terms of the Supreme Court decision referred to above, even at this stage and to satisfy us as to what explanation he would have given which needs to be considered by us, if that circumstances was put at the trial when the statement of the accused was recorded under section 342 Cr. P.C. Mr. Chatterjee has been unable to tell us of any conceivable explanation. He only referred to Zwinglee Ariel v. State of Madhya Pradesh (3) . In support of his argument that if the incriminating circumstances has not been put to the accused for explanation under section 342, Cr. P.C. it cannot be made use of. Suffice it to say that this opportunity has been given to him today to explain in view of the observations made in Mathew and others v. State of Travencore Cochin ( AIR 1956 SC 241 ) . 14. Learned counsel for the appellants has not placed any reliance on the defence witnesses produced at the trial. The defence evidence has not been accepted by the trial Judge. After having read them we agree with the view taken by the learned court below. As a result of the fore-going discussion we held that Hazari is responsible for giving fatal blow on the head. The case is not covered by clause firstly and secondly of section 300 IPC as from the evidence it cannot be said that Hazari had intended to kill Khema, but the case falls within the ambit of clause thirdly. By giving a lathi blow on the head with force fracturing right parietal bone, he had the intention of causing such bodily injury which was sufficient in the ordinary course of nature to cause death. In our judgement the act of Hazari is punishable under section 302 IPC. We further hold that Hazari, Mewa and Teja are liable under section 325 read with section 34 IPC. In our judgement the act of Hazari is punishable under section 302 IPC. We further hold that Hazari, Mewa and Teja are liable under section 325 read with section 34 IPC. They acted in concert and in furtherance of the common intention to cause grievous injury to Khema. Hazari is accordingly convicted under section 302 IPC. simplicitor and sentenced to imprisonment for life instead of section 302 read with 34 IPC. The convictions of Mewa and Teja are altered from section 302 read with Section 34 IPC to Section 325 read with 34 IPC. Their sentences passed by the trial Judge are set aside and instead they are sentenced to five year's rigorous imprisonment. We have also found Hazari guilty under section 325 read with S. 34 IPC. but no separate sentence is necessary since he has been convicted and sentenced to life imprisonment under sentence 302 IPC. 15. The appeal is disposed of as indicated above. 16. Leave to appeal to Supreme Court is prayed. The case has been decided on the appreciation of evidence. We do not think it to be a fit case for appeal to Supreme Court. The prayer is accordingly rejected. *******