Baul & ANR Vs. State of U.P 
INSC 275 (24 November 1967)
24/11/1967 HIDAYATULLAH, M.
CITATION: 1968 AIR 728 1968 SCR (2) 450
CITATOR INFO :
R 1991 SC 318 (19)
Indian Penal Code (45 of 1860), ss. 302 and
34-Acquittal of one of two accused-No evidence regarding injuries caused by the
other to deceased-Nature of offence committed by him.
Two accused were charged with an offence
under s. 302 read with s. 34 I.P.C. The victim had four lathi injuries on his
head-two fatal and two simple. One of the accused was acquitted. On the
question whether the other could be convicted for an offence under s. 302
simpliciter without establishing that he had caused at least one of the major
HELD : As a result of the acquittal of one of
the two accused, the common intention was not proved. In such a case it could
not be postulated that the other accused alone caused all the four injuries and
the prosecution must establish the exact nature of the injury caused by him In
the absence of such evidence, he must be given the benefit of doubt with
respect to the offence under s. 302, but may be convicted for the offence of
causing grevious hurt under s. 325 [453 H; 454 A-D, C]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 47 of 1965.
Appeal by special leave from the judgment and
order dated August 31, 1964 of the Allahabad High Court in Criminal Appeal No.
397 of 1963.
P. K. Chakravarti and C. P. Lal, for the
K. K. Jain and O. P. Rana, for the
The Judgment of the Court was delivered by
Hidayatullah, J. The appellants are father and son. They were prosecuted with
one Ramdeo who has been acquitted by the High Court. The prosecution case
against them is that on the evening of June 7, 1962, about sun-set they
attacked one Ramdular causing him fatal injuries on his head with a lathi
resulting in his death. The first appellant Baul is said to have instigated the
assault and the original prosecution case was that the other appellant Sadhai
and Ramdeo (the acquitted accused) assaulted Ramdular. Medical evidence
established that the deceased died as a result of two fatal blows on the head,
both of which appeared to have caused extensive fractures of the skull. There
were two other injuries on the head which were simple. The deceased never
regained consciousness after he received the blows and died in the hospital
about 11.30 the same night. The occurrence took 451 place in this way. It
appears that Baul, the first appellant, and Lurkhur (P.W. 1) who are
brothers-in-law were at loggerheads over a right of way. On the day in question
Lurkhur was preparing his food near his house and the deceased was at a well
nearby. When Baul passed that way there was an exchange of abuses and Baul
raised an alarm.
Lurkhur's son, the deceased, came out of his
house with his wife. On the other side came the appellant Sadhai and the
acquitted accused Ramdeo. Baul instigated these two to beat the deceased who
was probably very vociferous in his abuses in support of his old father. When
this exhortation was made the deceased took to his heels chased by Sadhai and
Ramdeo. According to the prosecution evidence both of them hit the deceased on
the head with their lathies. The de- ceased attempted to run back to his house
but fell down near the door step. The appellants and Ramdeo thereupon
The Police Station House is situated within a
distande of a mile from the scene of occurrence. Report of the incident was
made between 7 and 8 p.m. but was actually recorded at 8 p.m. Badshahpur
Hospital is situated within 2-3 furlongs of the police station house and the
deceased was sent in an unconscious condition to the hospital. He never
regained consciousness before his death. The Sub-Inspector, after recording the
first information report, went to the hospital, found the deceased unconscious
and, therefore, went to the spot where he found no witness except the wife of
the deceased person. He went back to the hospital and then went in search of
the appellant Sadhai and arrested him in the village after 10 p.m. The other
two accused surrendered in court later on June 18, and June 20. The deceased
was examined while he was still alive by Dr. N. D.
Burman (P.W. 3) and his report shows that he
had " a mutilated" wound of I" X1 / 10" X 1/4" on the
left side and the head 21" above the left eye-brow with swelling
4"X4-1/2" in area. The wound was then bleeding. He also had a bluish
swelling 2-1/2"X2" on the right side of the scalp 2" above the
right eye-brow. Both the injuries were said to have been caused with a blunt
weapon such as a lathi. After the death of the deceased postmortem examination
was done by Dr.
M. L. Gouta (P.W. 7). He had the opportunity
to examine the injuries more closely. According to him there were :
1. a contusion 2-1/2"Xl" on the
right side of the forehead 1/2" above the right eye-brow.
2. a contusion 21/2"X 1" on the
left side head 2" above left ear with swelling of the entire left side of
head and face.
3. contused wound 1/2"X1/4" scalp
on left side of head 2" above the left eye-brow.
4. swelling 3"X2" on right side of
head 1/2-" above the right ear.
There was also an abrasion on the back of
right elbow joint.
Internal examination disclosed left and right
perietal bones fractured at many places. Front perietal bone of the head was
fractured at its joint. Congested clotted blood was present all over the bones
of the head. The membranes were besmeared with blood. The right and left
hemisphere was entirely covered with clotted blood. The bone on the left side
of the base of the skull was also fractured.
There are five eye-witnesses of 'the actual
occurrence of whom only two have been believed. They are Lurkhur (P.W. 1) and
Smt. Mangani (P.W. 2) the wife of the deceased. Three other witnesses, Ram
Saran (P.W. 4), Ram Dular (P.W. 5) and Ram Swaroop (P.W. 6) were also examined.
They stated that they were passing that way and saw the assault. Dular and
Ramswaroop were disbelieved as to the actual assault, because when they saw the
deceased he had already fallen on the ground. Ram. Saran was disbelieved
because in the committing court he had deposed that he had only seen Sadhai
although in the Court of Sessions he named both the youngmen as the assailants.
Baul, of course, admitted his presence, but his son Sadhai pleaded alibi. His
statement was that he had left with the corpse of the mother of one Marwari for
Jhusi to attend the cremation and returned by train at 7.30 p.m. He came from
the station on the 'hearse car' and alighted at the police station house when
he was arrested.
He examined one witness in support of this
statement. This witness was his companion on this trip.
The Sessions Judge disbelieved the evidence
of alibi and accepted the evidence of the eye-witnesses. He convicted all the accused
under ss. 302 read with s. 34, Indian Penal Code and sentenced them to
imprisonment for life. On appeal, Ramdeo was acquitted and the conviction of
Baul was altered to S. 325 read with S. 109 and he was sentenced to five years'
rigorous imprisonment. The conviction and sentence of Sadhai were maintained
but the conviction was altered from s. 302/34 to s. 302 simpliciter.
In this appeal Mr. P. K. Chakravarty has
raised two points which are the only points to be considered because this
Court, in an appeal by special leave where the two courts below have concurred
in their conclusions, does not ordinarily reassess the evidence. The first is
that the High Court did not consider the evidence of alibi at all.
The High Court mentioned the alibi but did
not consider it in its judgment. It may be that having accepted the evidence of
the eye-witnesses the High Court did not feel 453 it necessary to say that the
evidence of alibi was not accepted by it. In view of the fact that no reference
was made to the evidence of alibi we had that evidence brought to our notice
and compared it with the evidence of the eye- witnesses. We think that the
evidence of alibi cannot be accepted. The Sub Inspector has quite clearly
deposed that Sadhai was arrested at about 10 p.m. and not at 7.30 p.m. as
Sadhai alleges. Further, if Sadhai had gone to attend a cremation ceremony, he
would have numerous persons to support his alibi and his reliance on a solitary
witness whose deposition does not impress us goes against him. Even this sole
witness said nothing more than this that he went to the cremation and returned
with the accused on the train.
In these circumstances we agree with the
Sessions Judge that the evidence of alibi was not satisfactory and -did not
displace the evidence of the eyewitnesses.
The next submission of Mr. Chakravarty needs
According to Mr. Chakravarty the offence
charged against Sadhai was commission of murder in furtherance of the common
intention of two persons, that is, himself and Ramdeo. The Sessions Judge held
that both had taken part in the assault in furtherance of a common intention
and logically the Sessions Judge was right in his conclusion that if there was
a common intention both Sadhai and Ramdeo were responsible for the offence of
murder. When the High Court acquitted the other accused (Ramdeo) the High Court
converted the conviction from S. 302/ 34 to S. 302 simpliciter. In other words,
the High Court held' Sadhai responsible for all the injuries which had been
caused to the deceased. Mr.
Chakravarty submits that in a case of this
type where four blows were hit on the head by two persons it would be difficult
to say who hit which blow and whether whose blow or blows was responsible for
the fracture of the skull. He- contends that if s. 34 was available this
argument would not be open, but in the absence of common intention the
prosecution case cannot be held proved against Sadhai and he made responsible
for all that was caused to the deceased.
He submits that there should be some evidence
to show that the injury which Sadhai caused to the deceased was at least one of
the two major injuries and not one of the two minor injuries. According to him
this raises a doubt in his case and Sadhai's offence cannot be nuder S. 302
No doubt the original prosecution case showed
that Sadhai and Ramdeo both hit the deceased on the head with their lathies.
One is tempted to divide the two fatal injuries between the two ,assailants and
to hold that one each was caused by them. If there was common intention
established in the case the prosecution would not have been required to prove
which of the injuries was caused by which assailant.
But when common intention is not. proved the
prosecution must establish the exact nature of the 454 injury caused by each
accused and more so in this case when one of the accused has got the benefit of
the doubt and has been acquitted. It cannot, therefore, be postulated that
Sadhai alone caused all the injuries on the head of the deceased. Once that position
arises the doubt remains as to whether the injuries caused by Sadhai were of
the character which would bring his case within S. 302. It may be that the
effect of the first blow became more prominent because another blow landing
immediately after it caused more fractures to the skull than the first blow had
These doubts prompt us to give the benefit of
doubt to Sadhai. We think that his conviction can be safely rested under S. 325
of the Indian Penal Code, but it is difficult to hold in a case of this type
that his guilt amounts to murder simpliciter because he must be held
responsible for all the injuries that were caused to the deceased. We convict
him instead of S. 302 for an offence under S. 325, Indian Penal Code and set
aside the sentence of imprisonment for life and instead sentence him to
rigorous imprisonment for seven years.
As regards Baul his instigation was likely to
result in the kind of injury which was caused to the deceased. The least that
could have happened was a grievous injury. In these circumstances, we do not
think that there is any room for interference in his case. His appeal must
therefore be dismissed.
The appeal is therefore allowed in respect of
Sadhai to the extent indicated above and dismissed as to Baul.
V.P.S. Appeal allowed in part.