GIRISH CHANDRA GUPTA, J

(1.) THIS appeal is directed against a judgment dated 17th March 2004 passed by the learned additional Sessions Judge, Fast Track Court, Purulia, in Sessions Trial No. 26 of 2003 arising out of Sessions Case No. 96 of 2001 convicting the appellants namely Brihospati Mahali, Kalipada mahali and Harbara Mahali under section 302 read with section 34 of the Indian Penal Code and an order dated 18th March 2004 by which the aforesaid convicts were sentenced to rigorous imprisonment for life as also to pay a fine of Rs. 5000/- each, in default to suffer further rigorous imprisonment for one year. Rest of the accused were acquitted. The convicts have come up in appeal. Briefly stated the facts and circumstances are that there was a dispute as regards title in respect of a piece of land which according to the case of the accused persons had been transferred by the deceased to Agnu Mahali, father of the accused Harbara Mahali. The deceased Dukhu however appears to have been in possession thereof. On 22nd July 1993 in the morning at about 8 a. M. when the deceased was cultivating the said piece of land, the appellants armed with deadly weapons reached the spot and picked up a quarrel. The deceased out of fear took to his heels. He was chased and killed on the spot. P. W. 1 Janaki, widow of the deceased and the P. W. 5 Kalabati, daughter of the deceased are the eyewitnesses. The Baligara P. S. is at a distance of 20 K. M. from the place of occurrence. A written complaint was lodged on 22nd July 1993 at 12. 55 hrs. implicating the accused persons. The motive of the accused persons is established by the trend of cross-examination and suggestions given to the witnesses of the prosecution. P. W. 1, the widow of the deceased in her cross-examination deposed as follows:- "i did not handover any paper to the police relating to the said land in question. The name of the father of the accd. Harbara Mahali is Agnu Mahali. Agnu died long ago. Not a fact that my husband transferred his right title (illegible) and possession in respect of the land at Dungri Tar to Agnu Mahali by a registered deed of sale. " P. W. 2 deposed in the cross-examination as follows: "i do not know that whether Agnu Mahali purchased the said land in question in the year 1973 or not. I have no idea as to who used to possess the said land in question. " P. W. 3 was suggested as follows:- "not a fact that the land in question was purchased by Harbaras father from dukhu. " P. W. 7 a Sub-Inspector of Police deposed that he made a requisition to the BLLRO-II, purulia, to ascertain the actual ownership of the land in question, in pursuance whereof he received a report which was tendered and marked Ext. 5. The report goes to suggest that the Rayats of the land in question were both Agnu Mahali and the deceased Dukhu Mahali. As regards the actual incident, the P. W. 1, widow of the deceased, an eyewitness, deposed as follows: "i along with my husband and daughter were cultivating in our land. The said land called Dungri Tar. At that time Brihaspaty Mahali, Kali Mahali and Harbara Mahali came on our land. Brihaspaty was carrying a Tabla in his hand. Kalipada was holding a sword, harbara was holding an axe and they asked us as to why we were cultivating on the said land. My husband told them that the land belong to his father and at that time they told us that they would not allow us to cultivate in our land. At that time Brihaspaty attacked my husband with a Tabla on his head behind the school near to our land.

(2.) THE accd. Persons gheraoed my husband. The persons who gheraoed my husband, I cannot say their names at present moment but I can identify them, they are present today in court and identified. My husband after sustaining injury fell on the earth and he succumbed to his injuries there. " p. W. 5, daughter of the deceased, deposed as follows: "i along with my parents were cultivating in our land. At that time Brihaspaty mahali, Kali Mahali, Harbara Mahali came at our land and asked us to stop cultivation. Kali Mahali had a sword in his hand and Harbara was carrying an axe and brihaspati had tabla in his hand at that time.

(3.) ON hearing their threatening while we were running away at that time near the school Brihaspaty hit my father with a tabla on his head and other two persons gheraoed my father at the time of said attack. Because of such attack on the head of my father he died on the spot. I narrated the incident to Partha and Sultan. Brihaspati, Harbara and Kala are present today in court and identified. "

(4.) FROM the evidence of the two eyewitnesses, noticed above, the fact that the accused persons armed with lethal weapons approached the field where the deceased was cultivating the land is amply proved. The deceased, it appears, was told that he had no right to cultivate the land. The situation was made to become grave. As a result whereof the deceased and his family members ran for their lives. The victim was chased and killed. The fatal blow was dealt by the accused brihaspati and the other two accused persons actively aided him in committing the crime. The autopsy Surgeon (P. W. 9) deposed that the injury was ante mortem and homicidal in nature and caused by heavy sharp cutting weapon. Mr. Dey, learned Senior Advocate, appearing in support of the appeal submitted that a) the accused Kalipada and Harbara had no role to play and the conviction is liable to be set aside to that extent. b) The accused Brihaspati, it could not be said, intended to cause death of the deceased and therefore, the accused Brihaspati could, at the highest, be punished under section 304 IPC.

(5.) IN support of his submission he relied on a judgment of the Apex Court in the case of Daulat vs. State of Maharashtra reported in 2004 SCC (Cri) 1901. He drew our attention to the paragraph 8 of the judgment. In the facts of that case Their Lordships were of the opinion that the appellant did not intend to cause death of the deceased and therefore the conviction was stepped down from one under section 302 to section 326 IPC. That was a case in which nine persons had been convicted for having caused murder of one Kesab. Mr. Dey, learned Senior Advocate, also relied on a judgment in the case of Surendra Singh vs. State of Uttranchal reported in 2007 (1) CLT 30 (SC). In that case the abettors who had actively instigated the appellant to commit the murder had already been acquitted and the question which fell for decision before the Apex Court was whether it could be said that the appellant intended to cause death of the deceased which was answered in the negative and the conviction was stepped down to section 304 Part II from section 302 IPC. The learned Public Prosecutor disputed the submission advanced by Mr. Dey.

(6.) THE first submission of Mr. Dey, noticed above, has not impressed us. The accused kalipada and the accused Harabara, in our view, acted in concert with the accused Brihaspati. All the accused persons approached the field where the deceased was cultivating the land armed with lethal weapons. All of them objected to the land being cultivated by the deceased. All of them chased when the deceased ran for his life. Ultimately the deceased was ghearoed by the accused kalipada and Harbara and the deadly blow was dealt by the accused Brihaspati. It is difficult in these facts to accept the submission that the accused Harbara and the accused Kalipada had no role to paly. They were the participants in the crime along with Brihaspati. Not only that they entertained a common intention but also actively aided the commission of the crime. We are under the circumstances unable to accept the submission of Mr. Dey and his first submission is accordingly rejected.

(7.) THE second point urged by Mr. Dey is a question of fact. We have evidence before us to show that the injury inflicted upon the deceased was homicidal in nature. Therefore, the case is squarely within the provision "thirdly" of Section 300 of the Indian Penal Code. Everyone is presumed to have intended the natural consequence of the act until the contrary is proved. It is difficult to believe that the injury was not intended in the absence of any explanation from the accused. The injury inflicted was sufficient to cause death because it was homicidal in nature. It does not, in our view, lie in the mouth of the appellants to say that they did not intend to cause death of the deceased, without even faintly attempting to prove or establish that the injury was accidental or otherwise unintentional. Reference in this regard may be made to the judgment in the case of Visra Singh Vs. State of Punjab reported in AIR 1958 SC 465 [LQ/SC/1958/20] wherein Their Lordships expressed the following view:- "once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. "

(8.) THE judgment in the case of Surendra (Supra) relied upon by Mr. Dey is distinguishable on facts. In paragraph 15 of the judgment Their Lordships recorded the facts of the case as follows:- "in view of the acquittal of Trilok Singh and Rajendra Singh, the genesis of the occurrence cannot be said to have been proved. The appellant, according to the prosecution case itself, did not act on his own. He is said to have acted on impulse and that too upon being instigated by his brother. From the evidence of P. W. 1 and P. W. 2, it is evident that not only there had been hot exchange of words, but also a scuffle. The learned Trial Judge did not fully rely upon the evidence of P. W. 2. Thus, there was no witness who can be said to have proved the actual genesis of the occurrence. " The case of Daulat vs. State of Maharashtra (supra) cited by Mr. Dey does not really help the appellant because the test indicated in the aforesaid judgment is not the sole test to be applied in order to ascertain the intention of the accused. The appellants armed with deadly weapons went to the field of the deceased in order to enforce their supposed right. After the deceased took to his heels and ran for his life the appellants chased him and killed him like an animal. We are under the circumstances inclined to think that the view taken by the learned Trial Court is well justified in the facts and circumstances of the case.

(9.) IN our view, the impugned judgment of the learned Trial Court does not suffer from any infirmity to warrant interference. Accordingly, the appeal fails and dismissed. The conviction recorded and the sentences imposed upon the appellants by the learned Trial Court are affirmed. It appears from the record that the appellants namely Harbara Mahali and Kalipada Mahali are now on bail. Their bail-bonds are cancelled and they are directed to be taken into custody forthwith to serve out the remaining period of their sentences for which compliance report must be sent within one month from the date of receipt of copy of this judgment by the learned Trial Court.

(10) THE appellant Brihaspati Mahali is in jail and shall be kept there to serve out the sentences as awarded by the learned Trial Court. Lower Court Records with a copy of this judgment be transmitted to the learned Trial Court forthwith for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned advocates, appearing for the parties upon compliance of all formalities.