# BAUL & AN01HER v. STATE OF U.P

- **Citation:** [1968] 2 S.C.R. 450
- **Court:** Supreme Court of India
- **Decided:** 1967-11-24
- **Case number:** Criminal Appeal No. 47 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baul-an01her-v-state-of-u-p-4220
- **Pages:** 5

## Headnote

BAUL & AN01HER
v.
STATE OF U.P.
November 24, 1967
[M. H!DAYATULLAH AND C. A. VAIDIALINGAM, JI.)
I
Indian Penal Code ( 45 of 1860). ss. 302 and 34-AcquUtal of ont
of two accused-No evidence rtgarding iniurles i:aJUed by the othu to
deceasl!d-Nature of offence committed by him.
TWo accused were charged with an offence under a. 302 read with
" 34 I.P.C. The victim had four /at/U infuries on his hea~o fatal and
two aimple. One of the 1U:Cused .. wu acquitted. On the question whether
0
the other could be convicted for an offence under a. 302 slmpliclttr with·
out establiabi1111 that he had cauaed at least one of the major injuries,
HELD : As a result of the acquittal of one of the two accused, the
common intention was not proved. Jn such a c115e It could not be postulated that the other accused alone caused all the four injuries and t~
prosecution must establish the exact nature of the injury caused by him.
Jn the absence of such e\idence, be must be Jiven the benefit of doubt
D
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-B, CJ

## Text

BAUL & AN01HER
v.
STATE OF U.P.
November 24, 1967
[M. H!DAYATULLAH AND C. A. VAIDIALINGAM, JI.)
I
Indian Penal Code ( 45 of 1860). ss. 302 and 34-AcquUtal of ont
of two accused-No evidence rtgarding iniurles i:aJUed by the othu to
deceasl!d-Nature of offence committed by him.
TWo accused were charged with an offence under a. 302 read with
" 34 I.P.C. The victim had four /at/U infuries on his hea~o fatal and
two aimple. One of the 1U:Cused .. wu acquitted. On the question whether
0
the other could be convicted for an offence under a. 302 slmpliclttr with·
out establiabi1111 that he had cauaed at least one of the major injuries,
HELD : As a result of the acquittal of one of the two accused, the
common intention was not proved. Jn such a c115e It could not be postulated that the other accused alone caused all the four injuries and t~
prosecution must establish the exact nature of the injury caused by him.
Jn the absence of such e\idence, be must be Jiven the benefit of doubt
D
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-B, CJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
47 of 1965.
Appeal by special leave from the judgment and order dated
g
August 31, 1964 of the Allahabad High Court in Criminal Appeal
No. 397 of 1963.
P. K. Chakravarti and C. P. Lal, for the appellants.
K. K. Jain and 0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, J.
The appellants are father and son.
Tuey
were prosecuted with one Ramdeo who bas been acquitted by the
High Court.
The prosecution case against them is that on the
evening of June 7. I 962, 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 consciousnes.~ after he received the blows and died
in the hospital about I 1 .30 the same night. The occurrence took
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BAUL v. STATE (Hidayatullah, J.)
451
place in this way.
It appears that Baul, the first appellant, and
Lurkhur (P.W. I) 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 he.ad with their /athies.
The deceased attempted to run back to his house but fell down near the
door step.
The appellants and Ramdeo thereupon retreated.
The Police Station House is situated within a distance 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 Gefore 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 (f.W. 3) and his
report shows that he had " a mutilated" wound ot t"X 1/1 O"X t"
on the left Side and the head 2t" above the left eye-brow with
swelling 4"X 4!" in area.
The wound was then bleeding.
He
also had a bluish swelling 2t"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 post-mortem 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 :
I. a contusion 2t"X l" on the right side of the forehead
t" above the right eye-bmw.
2. a contusion 2t"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 t"X t" scalp on left side of head 2"
above the left eye-brow.
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SUPRFME COURT REPORTS
[ 1968] 2 S.C.R.
4. 'welling J"X2" on right side of he;id l" above the
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right car.
There wa' allo an abrasion on the back of right
elbow joint.
Internal ex;imination disclosed left and right pcrictal bones fractured at many places.
Front perictal bone of the head was fractured at i1' joint.
Congested clotted blood was present all over
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the bones of the head.
The membrane.; were hcsmeared with
blood.
The right and left hemisphere was entirely covered with
dotted blood.
The hone on the left side of the base of the skull
'"" also fract:Ired.
There arc five cyc-11 itnesscs of the actual occurrence of whom
only two have been believed.
They are Lurkhur (P.W. I) and
Smt. Man~ani (P.W. 2 1 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 abo examined.· They stated that they
were passing that way and '"w the assault.
Dular and Ramswaroop were disbelieved as to the actual aS'auh. because when
they saw the deceased he had already fallen on the ground. Ram
Saran was disbelieved because in the cornmillin~ 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 coutlic. admitted his presence. hut 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
w:is his .companion on this trip.
The Sessions Judge disbelieved the evidence
of alibi
nnd
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. 32.'.i
read with s. I 09 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 arc the only points to be considered hccause chis Court, in
an appeal hy special leave where the two courts below have concurred in their conclusions. docs not ordinarily reassess the evic
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dence.
The first is that the High Court did not consider the
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evidence of alibi at all. The High Court mentioned the alibi but
did not consider it in its judgment. . It may he that having accepted the evidence of the eye-witnesses the High Court did not feel
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BAUL v. STATE (Hidayatulla/1, J.)
450
it necessary to say that the evidence of alibi ,was not accepted by
it, in yi;rw of.the. fact that no reference was made to the evidence
o~ alibi' we had that evidence brought to our notice and compared
it with the evidenL-e af. 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
dep~sition 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 some attention.
According to Mr. Chakravarty the offence charged against
Sadhai was commission of murder in furtherance of the common
intention of two persons, tliat 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 Sess.ions
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 simp/iciter. ln 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 simpliciter;
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 ony 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
SUPREME COURT REPORTS
(1968] 2 S.C.R.
injury caused by each accused and more so in this ca~e 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 with·
in 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 caused.
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 deceas·
ed.
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 ca.used 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
ex cent indicated a hove and dismissed as to Baul.
V.P.S.
Appeal allowed in part.
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