S.D. Bajaj, J.
1. Around 3.10 p.m. on October 21, 1985, within the precincts of Civil Hospital, Nawan Shahr, in District Jalandhar, of Punjab State injured Gurdial Singh made to ASI Ajit Singh, Incharge Police Post Rahon, the following statement :
"I am a resident of Village Kahlon, police station Nawanshahr and do cultivation. About 51/2 months back, I took about 6 killas land on mortgage in the sum of Rs. 40,000/ from Smt. Krishna widow of Darshan son of Bhagta, Aadharemi by caste, resident of village Kahlon, now residing in England. After taking the possession of the land, we had sown Gowara crop in one Killa. Lachhu, Nazar, sons of Bhagta, Aadharami by casts, residents of Kahlon, who are real brothers of Darshan Singh aforesaid, had sold the same area to Jharmal Singh, Jat of Village Ghataro, who is maternal uncle of the wife of Surinder Singh son of Dharma, Jat by Caste, resident of Rahom, after the sale deed executed in favour of us. Dharam Singh and his sons namely Surinder Singh etc. wanted to take the possession of the aforesaid land. Some days ago, Dharam Singh and his sons prevented us from cutting Gowara crop which we had sown in the aforesaid land. We exchanged hot words with each other on this matter, but the respectable persons of ou village had pacified us. Today at about 6.00 A.M. I, my sons Santokh Singh and Jagdish Singh, the three persons were cutting Gowara fodder for out cattles from this field. Nazar, Lachhu sons of Bhagta aforesaid came from the side of our village. They raised Lalkara to the effect that we should be caught hold of and should not be allowed to escape, and that we might be taught a lesson for cutting Gowara crop that day. We after hearing their lalkara tried to run away in the opposite direction. In the meantime, Darshan Singh son of Dharam Singh armed with gandasi, Sarwan Singh son of Dharam Singh armed with gandasi and Surinder Singh son of Dharam Singh armed with dang residents of village Rahon came there and encircled us. Darshan Singh aforesaid gave blows with gandasi one after the other to my son Jagdish Singh which hit him on the left and right sides of forehead, on the head, on the back side of the head and on the neck, as a result of which Jagdish Singh fell down. Surinder Singh aforesaid gave dang blows to Jagdish Singh while lying fallen which hit on the nose, lip, dorsum of left hand, left elbow and on the shin of left leg and ankle of left foot. Thereafter, Sarwan Singh aforesaid gave three blows of his gandasi continuously to my son Santosh Singh which hit him on his head, forehead, on the back side of the head. On receipt of these injuries, Santokh Singh fell down. Darshan Singh gave two gandasi blows to him while he was lying fallen which hit him near the left ear and near left elbow. Thereafter, Surinder Singh aforesaid gave dang blows to Santokh Singh which hit on his left leg and right wrist. I stepped forward to rescue my sons, then Surinder Singh aforesaid gave blows with his dang one after the other to me which hit me on the back side of my head, right eye brow, right cheek, and on the dorsum of left hand. Thereafter, Darshan Singh aforesaid gave a blow with his gandasi to me which hit on the back side of my head. I fell down Surinder Singh aforesaid caught hold of me from my hairs while lying fallen and dragged, as a result. I received abrasions on the ribs of my right side. I raised raula of Mar Ditta Mar Ditta (Killed, Killed). Thereupon, the assailants together with their respective weapons went away from the place of occurrence. I and my sons were holding Raumbas and sickles. We have also inflicted injuries to the assailants with the same in order to save our lives. On hearing my raula my brother Sucha Singh reached the spot. He after putting us in a rehri in an injured condition brought us to civil Hospital, Rahon for treatment. Due to the non availability of the doctor, he brought us to Civil Hospital, Nawanshahr. The doctor has admitted me and my son Jagdish Singh there, but he declared my son Santokh Singh dead. Nazar, Lachhu, Darshan, Sarwan and Surinder Singh aforesaid having connived with one another and armed themselves caused injuries to us and they have murdered my son Santokh Singh. I am the complainant. Action may be taken."
2. On being charged for the commission of offences under Sections 302/149, 307/149, 325/149 and 324/149 of the Indian Penal Code, all the five accused and in respect of their individual charges under Sections 307 and 324 of the Indian Penal Code principal accused Darshan Singh and under Section 325, coaccused Surinder Singh pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated September 23, 1986, learned trial Court acquitted four out of the five accused namely Darshan Singh, Surinder Singh, Lachhu and Nazar, and convicted accused Sarwan Singh alone of the commission of the offense under Section 304 Part I and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay Rs. 500/ as fine. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of six months.
3. Feeling aggrieved therefrom, the State of Punjab has filed Criminal Appeal No. 253DBA of 1987 against the acquittal of four accused by the learned trial Court. Convicted accused Sarwan Singh had filed Criminal Appeal No. 651DB of 1986 against his conviction and sentence awarded to him and the complainant party has applied for being allowed to lead additional evidence in the case to prove their possession over the disputed lands which according so them, came into existence after registration of the case against the accused at their instance. All these are directed against the same impugned judgment of the learned trial Court and have, therefore, been heard and are being disposed of together.
4. We have heard Shri Randhir Singh, A.A.G, Punjab for the State, Shri H.S. Sandhu, Senior Advocate with Shri R.S. Sandhu Advocate for the convicted accused, Shri J.S. Mann Advocate for the complainant party and have perused the entire relevant material on the record very carefully.
5. Adverting initially to the complainant''s request for being allowed to lead additional evidence in the case, obtaining in Criminal Miscellaneous No. 13243 of 1991 and 1432 of 1992, suffice it to say that in terms of Section 391 of the Code of Criminal Procedure, 1973, additional evidence is allowed to be produced only when it is the requirement of the Court to eludicate the truth or the interest of justice demands such a course. Filling up of the lacuna by the complainants about their alleged possession over the land in dispute nearly 61/2 years after the occurrence through additional evidence, which admittedly came into existence subsequently, is act the requirement of the law permitting the grant of an opportunity to lead additional evidence. The request made by the complainants in this regard is, therefore, declined.
6. Lachhu and Nazar, two out of the four accused, are attributed only lalkara. In Fatta v. Emperor, AIR 1931 Lahore 63, it was observed :
"When the prosecution are unable to prove satisfactorily the intention or knowledge of an accused person they generally ascribe to him certain words which he is supposed to have spoken in order to supply the missing proof. This method is more often after adopted in cases in which certain person is sought to be published for constructive liability as regards the commission of crime of violence. It is highly unlikely that the accused would be so foolish as to proclaim his intentions before committing the attack, as by doing so he was sure to be thwarted by the persons present."
In Garib Singh and others v. State of Punjab, AIR 1973 Supreme Court 460, it was observed :
"Allegations of participation by giving lalkaras are sometimes made only to show additional overt facts so as to take in at least five persons and make out the ingredients of an offence under Section 147 IPC against all of them."
In Amar Singh v. State of Bihar, AIR 1973 Supreme Court 2221, it was observed :
"If the appellant had shouted lalkaras it would be difficult to sustain the conviction."
In Jainul Haque v. State of Bihar, AIR 1974 Supreme Court 45, it was observed :
"The evidence of exhortation is in the very nature of things a weak piece of evidence. There is quite often a tendency to implicate some person in addition to the actual assailant by attributing to that person exhortation to the assailant to assault the victim."
The learned trial Court, thus, rightly acquitted both of them. Its finding regarding their acquittal is, therefore, affirmed.
7. In between Darshan Singh and Surinder Singh both accused on the one hand and Jagdish and Gurdial Singh both members of the complainant party on the other, it cannot be said with certainty as to who was the aggressor and who could be termed as victim. Since both sides have injuries and the place of occurrence was jointly owned by them, neither of them could have any right of private defence of person and property. Every one of the joint owners is owner in possession of every inch of the joint land. Both of them, viz., the two accused on one side and the two injured on the other (all the four aforesaid persons) were, thus, guilty and none could blame the other. Learned trial Court, thus, rightly acquitted both the accused aforesaid and its finding in this regard is also affirmed.
8. In result, the State appeal filed against the acquittal of four accused by the learned trial Court, thus, gets wholly berefit of any merit therein and is consequently dismissed.
9. Learned counsel for the convicted accused has referred us to the observations made in Nanak Chand v. State of Punjab, AIR 1955 Supreme Court 274 and Lakhan Mahto and others v. State of Bihar, AIR 1966 Supreme Court 1742 and contended that the charge against him being of Sections 302 read with Section 149 of the Indian Penal Code, the accused could not be convicted of the commission of offence under section 304 Part I and should, therefore, be acquitted. The argument is no avail and the two authorities aforesaid do not support it. It was held in Moti Dass v. The State of Bihar, AIR 1955 Supreme Court 657 :
"A mere imperfection in the charge cannot be used to overthrow a conviction unless prejudice can be shown. The irregularity is curable both under Sections 225 and 537 of the Cr.P.C."
10. In the present case, due process is not violated because the conviction is for a lesser offence under Section 304 Part I of the Indian Penal Code as compared to the charge under Section 302 read with Section 149 of the Indian Penal Code. In State of Andhra Pradesh v. K. Venkata Reddy and others, AIR 1976 Supreme Court 2207, their Lordships of the Supreme Court observed :
"Thirteen accused were charged for the offences u/s. 302 read with 34 IPC, but out of those all except A7 were acquitted. There was clear evidence on the file that there were more persons than 13.
While the precise number of those unidentified persons, other than the 13 named in the charge cannot be ascertained with certitude, it can safely be said that apart from 13 named in the charge, there were some more confederates of A7 and all of them participated in the fatal assault on the deceased in the manner alleged by the prosecution. A7 can therefore be safely convicted under Section 302 read with section 34, Penal Code."
Conviction of accused Sarwan Singh cannot therefore, be assailed on this score. Plea raised in this regard is wholly without merit and is, therefore, overruled.
11. In the First Information Report three gandasi blows are alleged to have been given by Sarwan Singh accused to Santokh Singh (now deceased) on his head, fore head and back side of the head. Dr. Santokh Singh (PW2) describes them as follows :
1. Incised wound 6 cm x 1 cm x 1 cm on right frontparietal region, vertical in directions with irregular margins. Anterior end of the wound 8 cm from right supra orbital ridge, bone deep, blood clot present, underlying bone fractured, Artry and veins cut.
2. Incised wound with irregular margins on the vertex 7 cm x 1 cm just right to the mid line scalp deep. Blood clot was present anterior end of the wound 4 cm and parallel to the left of injury No. 1. Both artries and veins cut.
3. Incised wound 7 x 1.5 cm on the vertex, horizontal in direction extending 7 cm to the left and perpendicular of the middle of injury No. 2 clots were present around the artries which were cut. It was scalp deep. The direction of the depth was oblique anteriorposteriorly.
In para 28 of the impugned judgment, learned trial Court observed :
"Now coming to the injuries on the person of the deceased he suffered in all 8 injuries. The doctor has stated the death in this case had occurred due to haemorrhagic shock resulting from multiple injuries and head injury contributing to it. It were the head injuries which were the cause of death of Santokh Singh. Injuries Nos. 1, 2, 3, 4 and 5 were on the head. Gurdial Singh (PW 7) has stated that Sarwan Singh, accused, gave four Gandasi blows to his son Santokh Singh which landed on his head, on the upper portion of the head and back of the head and ultimately he fell down. This proves the point that it were the injuries caused by Sarwan Singh, accused, which resulted in the death of Santokh Singh. Thus, the death or Santokh Singh can be pinpointed and Sarwan Singh is held responsible for the same. In view of the law laid down in Gian Singh''s case (supra) he cannot be held guilty under Section 302 IPC in view of the exception four to Section 300 IPC. Sarwan Singh accused is held guilty only under Section 304 Part I of the Indian Penal Code. He is convicted accordingly."
12. Section 304 of the Indian Penal Code reads as follows :
"304. Punishment for culpable homicide not amounting to murder :
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years; and shall also be liable to fine if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
Applicability This section applies to the following classes of cases :
(i) When the case falls one or other clauses of section 300 but is covered by the exception to that section.
(ii) When the injury caused is not one of the higher degree of likelihood; covered by the expression "sufficient in the ordinary course of nature to cause death" but is of a low degree of likelihood generally spoken of as an injury "likely to cause death" and the case also does not fall under clause (2) of Section 300.
(iii) When the act done is with the knowledge that death is likely to ensue but there is no intention to cause death or injury likely to cause death, it may be that there is no intention to cause any injury at all or there may be an intention to cause simple or grievous hurt but not an injury likely to cause death.
Part I This part should be applied only where the offence is not murder by reason of its falling within one of the exceptions in Section 300. Where the injuries inflicted on a person are not such as are sufficient in the ordinary course of nature to cause death but are merely injuries which are likely to cause death then the accused are guilty under Section 304 Para 1 and not under Para II.
In Sai Mohammed v. Emperor, the deceased, consequent on some exchange of words thew clod of earth at the accused who struck the deceased twice in quick succession on the head with a stick that he was carrying, causing two injuries on the front part of the left parietal region and the right temporal region, respectively. It was held that the accused was guilty under Section 304 Part I.
In Ngu Shwe Dun v. Emperor, the deceased, consequent an old man of 67, went out of his house drunk and made a nuisance of himself to the bazar sellers, and going to where the accused was standing with whom words were exchanged with the result that the accused picked up a piece of fire wood and struck the deceased on his head once, and the accused fell and died on the way to the hospital without regaining consciousness. It was held that the accused, when he delivered the blow, should be deemed to have had only the intention of causing such bodily injury as was likely to cause death and the case falls within the purview of Section 304 Para I.
13. The conviction of Sarwan Singh accused recorded by the learned trial Court is, thus, affirmed and the sentence awarded to him is also proportionate to his guilt and we see no reason to interfere with the same. The Criminal Appeal filed by the convicted accused Sarwan Singh fails and is dismissed.
14. Accused Sarwan Singh is on bail from this Court vide order dated October 23, 1986. Learned Chief Judicial Magistrate, Jalandhar, would get him arrested and remit him to judicial custody for undergoing unexpired portion of sentence awarded to him by the learned trial Court.
JUDGMENT accordingly.
