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2010 DIGILAW 1200 (RAJ)

Nasaru v. State of Rajasthan

2010-07-12

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2010
Hon'ble GOMBER, J.—The appellants Nasaru S/o Mangali, Isar S/o Ashraf and Ashraf S/o Mangli (since deceased), had filed D.B. Criminal (Jail) Appeal No. 44/1981 against the judgment and order dated 29.8.1980 passed by learned Additional Sessions Judge, Deeg (Bharatpur) in sessions case No. 16/1980 whereby they were convicted of offences under Section 302 read with Section 34 IPC and sentenced to imprisonment for life and a fine of Rs. 200/- and in default of payment of fine, to further undergo rigorous imprisonment for three months. 2. Division Bench of this Court, allowing the appeal, set aside the impugned judgment passed by Trial Court and acquitted the accused appellants vide order dated 8.12.1994. 3. Aggrieved by the said order, State of Rajasthan, preferred Cr. Appeal No. 902/95 before Hon'ble Supreme Court. Hon'ble Apex Court, setting aside the Division Bench order dated 8.12.1994 remitted the matter back to this Court for deciding afresh on the basis of appreciation of evidence. 4. Briefly stated facts of the case are that Mst. Bassi W/o deceased Chhuttu submitted Ex. P/1 to the Incharge, PS-Pahadi on 23.7.79 at about 7.30 pm wherein she mentioned that two days before 23.7.79, Chhuttu had separated Ashraf's bull by lathi when his bull attacked Chhuttu's cow whereupon Issar S/o Ashraf got furious and abusing Chhutu he inflicted a lathi blow on his head but on intervention of Akhtar, left threatening to kill him. Thereafter, in the day time on 23.7.79 when Chhuttu was smoking hubble bubble with Akhtar and Akbar in his house, all the three accused came laced with lathies and inflicted injuries on his head. Consequently, he became unconscious and on his way to the hospital, he died. 5. Case was registered against Ashraf, Nasru and Issar under Section 302 read with Section 34 IPC and Ex. P/2 formal FIR was chalked. 6. During investigation, post mortem of deceased Chhuttu was conducted. External and internal injuries found on his person were opined to be ante mortem and cause of death was stated to be the head injuries leading to coma and the injuries were found to be sufficient in the ordinary course of nature to cause death. Accused were arrested and the matter was further investigated and the charge-sheet was filed against the accused under the above mentioned Section. 7. On committal, learned Addl. Accused were arrested and the matter was further investigated and the charge-sheet was filed against the accused under the above mentioned Section. 7. On committal, learned Addl. Sessions Judge, Deeg framed charges under said Sections against all the three accused which were denied by them and trial was claimed. 8. In order to substantiate its case, the prosecution in all, examined five witnesses and documentary evidence in the form of Ex. P.1 to Ex. P-8 was filed. 9. Accused were examined under Section 313 Cr.P.C. wherein denying the incident, they alleged false implication. Their explanation was that deceased Chhutu and Hussain Khan had assaulted Nasru and Ashraf in Ashraf's `Baithak' on that day and that they did not inflict any injuries on the person of Chhuttu. They examined Dr. Santosh Gupta as DW-1 who proved the injury reports of accused Ashraf and Nasru as Ex. D-3 and D-4. 10. Learned Trial Court, after considering the submissions of the parties, and perusal of record, found all the three accused guilty under Section 302 read with Section 34 IPC and awarded sentence as mentioned herein above. 11. Heard learned counsel for the appellants as also the learned Public Prosecutor for the State and perused the record. 12. Mr. Praveen Balwada, learned counsel for the appellants assailed the impugned judgment on various grounds stating that there was an over-writing in date at the bottom of Ex. P/1 and that Ex.P/2 FIR was sent to the Magistrate's Court after two days for which there was no explanation and therefore Section 157(1) Cr.P.C. had not been complied. Further on merits also, it was argued that the so called three eye witnesses PW.1 Bassi, PW.2 Akbar and PW.4 Akhtar were interested witnesses as they were close relatives of deceased and PW.2 & PW. 4 being residents of other village were simply chance witnesses. Further that there was no evidence to connect the accused with place of occurrence nor was there any specific injury assigned to any of the accused. Besides, the learned Trial Court did not appreciate the explanation given by accused in their statement under Section 313 Cr.P.C. wherein they had claimed right to private defence. 13. Learned Public Prosecutor supporting the impugned judgment argued that the over-writing in date 24.7.79 to 23.7.79 in Ex. Besides, the learned Trial Court did not appreciate the explanation given by accused in their statement under Section 313 Cr.P.C. wherein they had claimed right to private defence. 13. Learned Public Prosecutor supporting the impugned judgment argued that the over-writing in date 24.7.79 to 23.7.79 in Ex. P/1 was inadvertent and bonafide and that in the facts & circumstances of the case, the prosecution case cannot be thrown on the ground of delay in sending FIR. As regards the connection of accused with the occurrence, his argument was that other physical evidence is only corroborative pieces and there being sufficient substantive evidence, this fact does not affect the prosecution case adversely. According to him, PW.4 Akhtar who happened to be the nephew of deceased as well as accused Ashraf, had no reason to falsely implicate his one uncle and favour other uncle. According to him, the incident of 23.7.79 was the off-shoot of trivial incident of two days prior when the three accused living adjacent to the deceased house, came laced with lathies with intention to kill the deceased and gave lathi blows on his head leading to his death. 14. We have considered the arguments of both the sides and have perused the record minutely. We have also gone through the case law relied upon by the learned counsel for the appellants. 15. With regard to the over-writing in Ex.P/1 and sending of FIR to the Magistrate on 25.7.79, we have minutely checked this aspect in the light of other evidence on record and we are of the view that date of 24.7.79 altered to 23.7.79 appears to be bonafide because the incident is stated to have occurred sometimes before noon and as per FIR lodger PW.1 Mst. Bassi, deceased was brought straight to the hospital although he died on his way and that thereafter she went to lodge the report. Post mortem Ex. P/8 which was conducted on 24.7.79 at 9.00 a.m., also shows that deceased died within 12-18 hours of the examination, therefore, the date 24.7.79 could not have been the correct date and over-writing appears to be bonafide and inadvertent. 16. With regard to the argument of non-compliance of Section 157(1) Cr.P.C., we have considered this aspect of the matter and have also gone through the case law cited by learned counsel for the appellants. 16. With regard to the argument of non-compliance of Section 157(1) Cr.P.C., we have considered this aspect of the matter and have also gone through the case law cited by learned counsel for the appellants. We find that in the case in hand, Ex.P/2 clearly shows that FIR was lodged on 23.7.79 at 7.30 pm, and Ex.P/2, as per the endorsement on it, was dispatched on 24.7.79 for being sent to AMJM, Deeg which was received by the Court on 25.7.79 in the morning hours at 10.30 am itself. So far as judicial pronouncement in the matter of Arjun Marik and other vs. State of Bihar reported in 1994 SCC (Cri.) 1551 relied on by the learned counsel for the appellants is concerned, Hon'ble Apex Court in para No. 26 of the said pronouncement clearly held that there can be valid reasons for the delay in the desptach of the FIR and it is not always a circumstance on the basis of which the entire prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstances of delay may lead to serious conseque-nces. In that particular case, there were other circumstances, which by themselves, could cast a serious doubt on the prosecution case. Hon'ble Apex Court in Arun Marik's case supra, observed at pg. 1560-61 in para 26 as under: "Even if we ignore the question of delay there is no material on record to show that it was actually despatched and received by the Magistrate concerned and if so on what date and time. A mere note in the FIR itself that report was despatched by special messenger is not enough. There is no mention as to which Magistrate it was dispatched. The evidence of investigating officer is totally silent about it. It is true that quite often there are valid reasons for the delay in dispatch of the first information report and it is not always a circumstance of the basis of which the entire prosecution case may be said to fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. But in the present case as discussed above there are other circumstances discussed which cast a serious could on the prosecution case and this circumstance of delay in sending the FIR hardens the suspicion and leads to the definite conclusion that the Fard Bayan and FIR both were recorded much later in point of time than the one as shown in the said documents and in any case in our considered opinion after the appellant's house was raided and seizure of the articles was effected." 17. In the case in hand, as discussed above, the incident had allegedly occurred in the day time of 23.7.79, the distance of police station is about 8 miles. The deceased is taken in bullock-cart to the hospital by his wife who is an illiterate lady and written report is allegedly given at 7.30 pm. Ex. P/2 also shows that there is a despatch number as well as the name of the Court where it was sent and has been received on the next morning at 10:30 am in the Court of concerned Magistrate. In our opinion, there is no such circumstance to doubt and throw the entire prosecution case only on the basis of this delay. Therefore, this argument of learned counsel for the appellants is not sustainable. 18. In order to appreciate rest of the arguments of learned counsel for the appellants, we have examined the impugned judgment as well as record of trial Court. 19. From the evidence available on record, it appears that the incident took place on 23.7.79 during the day time as per Ex. P.1 of PW-1 Mst. Bassi and the deceased Chhuttu, according to PW.1, died on his way to hospital. Ex. P-1 was filed at 7.30 PM and the postmortem examination was conducted on 24.7.79 at 9 AM and postmortem report Ex. P/8 was prepared wherein the time of death was shown to be within 12 to 18 hours of examination. 20. Before we examine the ocular evidence, it would be appropriate, in the facts and circumstances of the case, to consider the injuries sustained by the deceased. As per Ex. P-8 the following external & internal injuries were found on the body of the deceased Chhuttu: EXTERNAL INJURIES 1. Traumatic contusion - 4" x 4" left side scalp temporal region. 2. Before we examine the ocular evidence, it would be appropriate, in the facts and circumstances of the case, to consider the injuries sustained by the deceased. As per Ex. P-8 the following external & internal injuries were found on the body of the deceased Chhuttu: EXTERNAL INJURIES 1. Traumatic contusion - 4" x 4" left side scalp temporal region. 2. Lacerated wound - 4" x 1/2" x bone deep right side scalp directed obliquely anterio medially 3" above the bridge of nose. 3. Incised wound - 3/4" x 0.2" x bone deep on the scalp midline 6" above the bridge of the nose: Directed obliquely. 4. Incised wound : 1/2" x 0.1" x bone deep left side forehead above middle of left eye brow: 5. Lacerated wound - 1" x 1/2" x bone deep 1" posterior to injury No. 3. 6. Traumatic contusion - 8" x 6" right base of neck anteriorily." INTERNAL INJURIES "External injuries as noted above. Marked effusion of blood present under the injuries as noted. There is complete separation of fronto parietal sutures to its full extent. Fracture of right parietal bone medial end (Depressed fracture) anteriorily. Fracture of left parietal bone (crack) from anteriolateral end to posterioro medial end. Depressed fracture-Left parietal bone medio anteriorily; collection of the blood clot in between the skull and membrances; Collection of blood clots between the membrances. Patecheal haemorrhage in brain substance. Huge collection of blood in the base of skull." 21. PW.5 Dr. Santosh Gupta who had conducted postmortem examination on 24.7.79 at 9.00 Am was examined to prove Ex.P.8 Post Mortem Report and in his cross-examination, he clearly stated that none of the external injuries were sufficient to cause death without internal complications. On internal examination besides the fracture of right parietal bone (depressed fracture) of left parietal bone (crack) & depressed fracture of left parietal bone, collection of blood clot in between the skull and membrances was found. PW.5 Dr. Santosh Gupta deposed in his cross-examination that internal injuries all and each one of them was sufficient to cause death. Probable time of death was 12 to 18 hours before the examination. 22. As regards ocular evidence, out of five witnesses examined by the prosecution, PW.1 Bassi, PW. 2 Akbar, & PW.4 Akhtar are eye witnesses of the incident whereas PW.3 Niranjan lal, SHO is Investigating Officer and PW.5 Dr. Probable time of death was 12 to 18 hours before the examination. 22. As regards ocular evidence, out of five witnesses examined by the prosecution, PW.1 Bassi, PW. 2 Akbar, & PW.4 Akhtar are eye witnesses of the incident whereas PW.3 Niranjan lal, SHO is Investigating Officer and PW.5 Dr. Santosh Gupta, conducted the post-mortem examination of deceased Chhuttu. 23. Out of the three eye witnesses, PW.1 Mst. Bassi is the wife whereas PW.2 Akbar, is the brother-in-law and PW-4 Akhtar, is nephew of deceased Chhuttu. Presence of PW.1 Bassi, wife is quite natural She is the one who took her husband to the hospital and lodged FIR. She deposed that at about 4.00 pm, her husband Chhuttu, Akhtar and Akbar were smoking hubble bubble infront of her house and she was also present in the house. She saw Isar coming laced with lathi from one side and Nasru also laced with lathi from the other side to her house. Ashraf also reached to their place and Ashraf and Nasru gave lathi blows on the head of deceased Chhuttu. On Akhtar's intervention, he was also given a lathi blow on his head by Nasru. Chhuttu became unconscious on account of bleeding from his head and accused after beating, went back to their house. She took her husband in the bullock-cart of Ruzdar to the Pahari hospital and on the way, Chhuttu died. Thereafter she lodged report Ex. P.1 at Police Station Pahadi. She further deposed that two days before the incident, Isar's bull had come to their house and hit their cow. Chhuttu sent the bull back giving a lathi blow, following which there was an altercation between Isar and deceased Chhuttu and Isar had threatened to kill him. She categorically stated that by the time, she lodged the report, it was already night time. 24. In response to the suggestion about injuries on the persons of Ashraf and Nasru, she stated that she did not know but may be Ashraf and Nasru also sustained injuries at that time. She categorically denied that Chhuttu gave a lathi blow and PW.4 Akhtar inflicted Farsa blow on the head of Nasru. She also denied infliction of any injury by Hussain Khan. She categorically denied that Chhuttu gave a lathi blow and PW.4 Akhtar inflicted Farsa blow on the head of Nasru. She also denied infliction of any injury by Hussain Khan. However, she admitted that it was possible that deceased Chhuttu's lathi might have injured the right eye of Nasru because Chhuttu had inflicted one or two injuries on Nasru in the same incident. She admitted that `baithak' of Ashraf was infront of her house and that she had no knowledge about accused persons smoking hubble bubble in Ashraf's `baithak' but she denied the suggestion that her husband Chhuttu, Akhtar and Hussain Khan went to his baithak and inflicted injuries on the person of Ashraf and Nasru. She also denied that Chhuttu sustained injuries on his head because of fall on Khunta. 25. PW.2 Akbar who happens to be the real brother of Mst. Bassi deposed that he had come to meet his sister on that day. Around 11-12 am, he was smoking hubble bubble with Chhuttu and Akhtar in Chhuttu's house. At that time, Isar, Nasru and Ashraf laced with lathies came to their house. First lathi blow was given by Isar on the head of Chhuttu followed by Asraf and Nasru also on the head. Consequently, bleeding started from his head and he became unconscious and accused persons fled away. Chhuttu was taken to the hospital in Ruzdar's bullock-cart and he died on his way to the hospital. From the hospital, Mst. Bassi went to the police station and lodged the report. 26. During his cross-examination, he stated that he had come from his village about 2-3 hours before the incident. He also admitted that Ashraf's baithak was about 5-6 steps away from the place of occurrence. He reiterated that incident took place at about 10-11 am and Chhuttu was taken to the hospital around 1.00 pm. They reached Pahadi at about 4.00 pm and remained in the hospital for about 2-3 hours. He claimed to have seen the incident from a distance of 2-3 steps only but did not intervene. According to him, there was no exchange of abusive language or free fight and the lathi blows were inflicted while Chhuttu was sitting and smoking in the house. According to him, PW.4 as well as accused Ashraf and Nasru sustained injuries but he was not sure as to how many injuries were sustained and who caused them. According to him, there was no exchange of abusive language or free fight and the lathi blows were inflicted while Chhuttu was sitting and smoking in the house. According to him, PW.4 as well as accused Ashraf and Nasru sustained injuries but he was not sure as to how many injuries were sustained and who caused them. He also denied Akhtar's inflicting farsa blow on Asraf's head and Hussain Khan inflicting injuries on the left hand finger of Nasru or giving lathi blow on the right eye and right fore-arm of Nasru. He repeated that first lathi was inflicted by Isar from behind followed by Ashraf and then by Nasru. He also denied that Chhuttu sustained injuries because of his fall on Khunta. 27. Last eye witness PW.4 Akhtar is the nephew of deceased Chhuttu as well as of Ashraf as the parties are closely related to each other. He is also resident of other village and claims to have come there three days before the incident. According to him, when he reached around 4.00 pm to Chhuttu's place, the animals had returned from jungle and Ashraf's bull hit Chhuttu's cow; whereupon, Chhuttu gave a lathi blow to the bull. The went back to Ashraf's house. Thereafter Isar came laced with lathi to Chhuttu's house and started fighting with Chhuttu on this petty issue and on his intervention, he went back threatening the deceased. On the third day, accused Isar, Nasru and Ashraf came laced with lathis to the deceased's house at about 10-11 am. At that time, he, Akbar and Chhuttu were smoking hubble bubble. Isar came from the side of Hamida's house whereas Ashraf and Nasru came from their houses. As soon as Isar reached, he gave two lathi blows on the land of deceased and Nasru also gave two blows and Ashraf gave one lathi blow on Chhuttu's head. He tried to intervene but seeing the condition of deceased, he got scared. PW.1 Bassi, PW.2 Akbar and Sarpanch Sami Khan took Chhuttu in the bullock-cart to the hospital. Chhuttu was unconscious at that time. 28. During his cross-examination, he reiterated that he was present at the site because they were smoking hubble bubble. He admitted that he did not go to the police station nor did he remain there but he went back to his village. Chhuttu was unconscious at that time. 28. During his cross-examination, he reiterated that he was present at the site because they were smoking hubble bubble. He admitted that he did not go to the police station nor did he remain there but he went back to his village. But this fact also cannot be ignored that the witness was about 20 years old at the time of occurrence and was also nephew of accused Ashraf. The explanation given by him that he got scared and went home, cannot be brushed aside. 29. It is also true that PW.2 Akbar and PW.4 Akhtar are residents of other village and their presence in the normal circumstances is not expected at the place of occurrence. They are closely related to deceased but before any conclusion is made with regard to their being interested or chance witnesses, totality of the circumstances have to be seen. Only because they were close relatives or they were chance witnesses, their evidence cannot be discarded on that count alone. In such circumstances, their evidence has to be seen in the light of their circumstances. It is also clear that there was no previous enmity between the deceased Chhuttu and accused persons and then PW.4 Akhtar is not only the nephew of deceased but is also the nephew of accused Ashraf. Therefore, in these circumstances, there does not appear to be any reason for him to give false evidence or cook false story against the accused. It is also not shown that these witnesses had any prejudice or interest against them. The statements of these two witnesses cannot be said to be concerned. 30. From the statements of eye witnesses as well as of Investigating Officer, the place of occurrence is established as the front of kotha of the deceased. It is admitted position that accused and deceased were relatives and living at a distance of 10-15 steps from each other. All the three eye witnesses have deposed about the use of lathies and that all the three accused are stated to had given lathi blow on the head of deceased. It is true that there is a difference between the time of occurrence as stated by PW.1 Bassi and other two witnesses PW.2 & PW 4. PW.1 Mst. Bassi in her statements before the court claims that incident took place around 4.00 pm whereas in Ex. It is true that there is a difference between the time of occurrence as stated by PW.1 Bassi and other two witnesses PW.2 & PW 4. PW.1 Mst. Bassi in her statements before the court claims that incident took place around 4.00 pm whereas in Ex. P/1 and P/2, the time of incident is shown as "Dolpahar Pahele" i.e. before noon and the incident of two days before is alleged to have taken place in the evening. PW.1 Mst. Bassi is an illiterate lady of rural back ground and it appears that there was some confusion with regard to the timing of incident of first day and for this reason, her total statement cannot be discarded. It is fully corroborated with other ocular evidence as well as documentary evidence Ex. P/1 and P/2. 31. So far as the defence version given in their statements under Sec. 313 Cr.P.C. is concerned, no such question was suggested to the Investigating Officer with regard to the place of occurrence being Ashraf's baithak or deceased & Hussain Khan being aggressors. 32. PW.3 Niranjan Lal, is Investigating Officer who claims to have prepared site plan. Ex. P-3 showing the place of occurrence at Mark "A". He explained that on account of rain on the day of occurrence and the next morning blood stains were not found and hence not collected. 33. During his cross-examination, he admitted that Rahimi wife of Ashraf had also lodged report wherein time of occurrence was approximately one hour before or after this incident and that the medical reports of accused Ashraf and Nasru were produced before him. As per Rahimi, the incident took place in Ashraf's baithak which was about 25 yards away from the place of occurrence in this case. Strangely the accused neither filed the copy of said report nor did they summon any record to know the true facts or fate of that FIR. So far as the injuries on the persons of Ashraf and Nasru shown in Ex. Strangely the accused neither filed the copy of said report nor did they summon any record to know the true facts or fate of that FIR. So far as the injuries on the persons of Ashraf and Nasru shown in Ex. D/3 & D/4 are concerned, it can be stated that if accused party had lodged a report then their medical examination should have been conducted on the requisition of police whereas in this case the medical examination of Ashraf & Nasru was conducted on their personal request and that too on 24.7.79 at 9.00 pm and the injuries are said to be of the duration of 1 to 3 days whereas the main incident is dated 23.7.79. Therefore, it cannot be concluded with certainty that nearing the time of incident as alleged by complainant, there was also an incident which took place in Ashraf's baithak or that the complainant story was doubtful. 34. On the other hand, the prosecution witnesses, in particular, PW.1 Mst. Bassi has clearly explained the injuries on the persons of accused Nasru & Ashraf stating that deceased also inflicted injuries on them during the incident. Thus the injuries of accused are well explained by the prosecution. 35. On the basis of discussion made hereinabove it can safely be concluded that the prosecution has proved that the accused persons laced with lathies came to the deceased's house on 23.7.79 in the day time before noon and inflicted lathi blows on the head of deceased as a result of which the deceased became unconscious and went in coma and died. 36. From the analysis of the prosecution evidence, it is clearly borne out that the deceased and accused were closely related to each other and were living side by side. Further that there was no previous enmity between them. The incident was an off-shoot of a trivial incident which allegedly occurred two days before. It is also proved from the evidence that the three accused laced with lathies came to the house of deceased and assaulted him when he was busy smoking hubble bubble with PW.2 & PW.4. They all gave lathi blows on the head of deceased. There are in all six external injuries on the person of deceased; out of which injury No. 1, 2, 5 & 6 were caused by blunt weapon whereas injury No. 3 & 4 were by sharp object. They all gave lathi blows on the head of deceased. There are in all six external injuries on the person of deceased; out of which injury No. 1, 2, 5 & 6 were caused by blunt weapon whereas injury No. 3 & 4 were by sharp object. Although there is no allegation of use of any sharp object but in view of the internal injuries found on the head of the deceased, it can be said that the lathi blows were so forceful that they made incised would because PW.5 admitted that the skull was separated in two parts. 37. Now the question arises as to what offence can be said to have been committed by the accused. Admittedly, it is not possible to find out as to which one of the accused gave fatal blow on the head of deceased. The deceased as per PW.5, died because of the internal head injuries because none of the external injury in itself was sufficient to cause death without internal complications. It is also admitted fact that all the three accused inflicted lathi blows on the head of the deceased and internal examination showed that there was a complete separation of fronto parietal sutures to its full extent. Besides there were fractures of right as well as left parietal bone with collection of blood clots between the membrance as well as collection of blood in the base of the skull. 38. From the material available on record, it is not possible to find out as to who of the three accused can be said to be responsible for the death of deceased. In the circumstances of the case especially the nature of the weapons used and the fact that it was a result of a trivial issue and none of the three accused can be assigned the fatal blow, it can only be concluded that accused who came laced with lathies had intention to cause severe beating and not to kill the deceased specially in the back-ground of the case as mentioned hereinabove. In this regard we are supported by the judicial pronouncements of Hon'ble Apex Court. 39. The Hon'ble Apex Court in the matter of Shri Krishan & Ors. In this regard we are supported by the judicial pronouncements of Hon'ble Apex Court. 39. The Hon'ble Apex Court in the matter of Shri Krishan & Ors. vs. State of U.P., reported in AIR 1972 SC, 2056 where there was no previous enmity between the parties and the occurrence was an off-shoot of a trifling scuffle and the injuries had been caused by lathies only, and the High Court in the given circumstances found the common intention to give severe beating only and where there was no material on record to show as to who gave the fatal blow, the conviction of accused was changed to one under Section 325 read with Section 34 from Section 302 read with Section 34 IPC. It was held in para No. 6 as under: "There was no previous enmity between the accused appellants on the one hand and Seru deceased and Sadaphal PW on the other. The occurrence was the off-shoot of a trifling incident in the nature of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. The four accused thereupon protested to Seru and Sadaphal for the beating given to Nandlal and also belaboured them with lathis. Five injuries were caused to Seru. Apart from the one injury on the head which proved fatal, the other injuries were not of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prosecution evidence, as observed by the High Court, does not indicate as to which one of the accused appellants inflicted the fatal blow on the head of Seru. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 of the Indian Penal Code and as such, we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 of the Indian Penal Code and as such, we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. In this context we find that the High Court has arrived at the following finding: "There could, therefore, be no doubt that the common intention of the appellants was to give a severe beating to Seru and Sadaphal." The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The facts that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be quilty of the offence under Section 325 read with Section 34 Indian Penal Code." 40. Similarly in the case of Ninaji Raoji Baudha & Anr. vs. State of Maharashtra, reported in AIR 1976 SC, 1537, where the victim died but common intention to cause death had not been proved, conviction of accused was altered from Section 302 read with Section 34 IPC to Section 325 read with Section 34 IPC. 41. In another matter of Ram Lal vs. Delhi Administration, reported in (1973) 3 SCC 466 , the Hon'ble Apex Court held that since the evidence clearly disclosed that the assailants attacked the deceased with non-lethal weapons with the common intention of causing grievous hurt and not death and though death resulted owing to fatal blows on the head and it is not certain who gave those fatal blows, the conviction of all the assailants could only have been under Section 325, read with Section 34 IPC and not under Section 302 IPC. In that case, the evidence showed that two lathi blows had been given on the head of deceased and there was no evidence which of those blows were given by appellants. The Hon'ble Apex Court held that benefit of doubt must go to accused. In that case also, the medical evidence showed that on opening head effusion of blood in scalp in whole of the frontal region on the both sides and parietal and temporal region on left side was also present. Depressed communited fracture involving left frontal and parietal bones was present and the Hon'ble Apex Court held that since the evidence clearly disclosed that two lathi blows had been given on the head and there was no evidence which of these two was given by the appellant, the benefit of doubt must go to him. In these circumstances, Hon'ble Apex Court converted the conviction of accused from offence under Section 302/34 IPC to one under Section 325 read with Section 34 IPC. In para No. 8 of the Judgment (supra), it was observed as under: "8. No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302, IPC was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325, read with Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction under Section 302, IPC and convict the appellant under Section 325, read with Section 34 and sentence him to five years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of the order passed against him by the High Court." 42. In the case in hand also, there was no previous enmity. The incident admittedly occurred on account of trifling issue that too two days prior to the incident and the parties are closely related to each other living side by side. There could not be said to be any motive to kill the deceased and as per Medico Legal Expert's opinion, none of the external injury by itself was sufficient to cause death and the cause of death was internal injury which lead to coma and ultimately the death of deceased. In these circumstances, the intention to kill, cannot be attributed to the accused. At the most, intention can be said to be to cause grievous injury. In these circumstances, the intention to kill, cannot be attributed to the accused. At the most, intention can be said to be to cause grievous injury. Thus the death of deceased was cumulative effect of head injuries which by itself were not sufficient to cause death. It can only be concluded that accused had no intention to commit the murder, therefore, in our view, the benefit of doubt has to go to the accused and they at the most can only be held guilty under Section 325 read with Section 34 IPC and not under Section 302 read with Section 34 IPC. 43. In these circumstances, we are of the view that each of the three accused persons is liable to be convicted under Section 325 read with Section 34 IPC. 44. During the pendency of appeal, appellant Ashraf died and the appeal filed by him stood was dismissed as abated. 45. The incident pertaining to the year 1979 is more than three decades old and the accused Nasru at present is of 79 years of age whereas accused Issar is running 56. The record further shows that accused Nasru had been behind the bars for 1 year, 1 month and 4 days; whereas Issar had been behind the bars for 1 year, 7 months and 19 days. In the facts & circumstances of the case, when more than three decades have passed and the accused-appellants have settled in their lives, we are of the considered view that ends of justice will meet if they are convicted and sentenced under Section 325 read with Section 34 IPC for a period of sentence of imprisonment already undergone by them. 46. Consequently, appeal of accused Issar and Nasru is partly allowed and their conviction and sentence under Section 302 read with Section 34 IPC passed by the learned Trial Court is set aside. Instead they are convicted and sentenced for offence under Section 325 read with Section 34 IPC for a period of imprisonment already undergone by them. They are on bail and their bail bonds are cancelled. They need not surrender.