IMPORTANT POINT
Applicability of section 34, IPC.

JUDGMENT

Aftab Alam, J.

1. The appellant who was accused No.2 before the trial court is convicted under section 302 read with section 34 of the Penal Code and is sentenced to rigorous imprisonment for life and a fine of Rs.500/- with the default sentence of rigorous imprisonment for a week.

2. According to the prosecution case, one Dharamaraj, the deceased was engaged in the business of money lending and accused No.1 Madhu @ Mahadeva had borrowed from him Rs.10,000/-. Dharamaraj went to jail in connection with some case, authorizing his younger brother Mallesha (informant-PW.1) to realise the money from his debtors in his absence. Mallesha tried to realise the loan amount from Madhu but was unsuccessful. On July 18, 1997, when Dharamaraj came out from the jail, Mallesha told him that Madhu had not refunded the money due to him. Dharamaraj said that he would himself get back the money from Madhu. It is further the prosecution case that on July 21, 1997, there was a festival in the village and in the evening at about 5:45 PM, the deceased and his brother Mallesha (PW.1) were in their house. At that time Madhu came to them and asked Dharamaraj to go out with him saying that he wanted to pay back the money that he had borrowed from him. Dharamaraj went along with him but, as he did not return after about half an hour, Mallesha along with two of his associates (Mahesh PW.2) and (Mukunda PW.14) went looking for him in the direction of Madhu’s house. On reaching near the house of Shivanna (accused No.3) they saw Dharamaraj surrounded by Madhu, the appellant and Shivanna and Thomas (accused nos.3 & 4 respectively). Shivanna and Thomas were hitting him with fists as a result of which he fell down. At that point, the appellant picked up one gobbaly tree wood piece which was lying there and swinging it like a club hit Dharamaraj with it on the right side of his head. Madhu then picked up a large stone and flung it on the head of Dharamaraj. Dharamaraj got severe bleeding injuries on his head, face and nose. He was taken to a hospital but was declared brought dead.

3. Before the trial court, PWs.1, 2 and 14 were examined as eye witnesses, who fully supported the prosecution case. The doctor who had conducted the post-mortem on the dead body of Dharamaraj was examined as PW.11. He proved the post-mortem report. According to the doctor, he found a number of external injuries on the body of Dharamaraj which he described as follows:-

“1. Obliquely situated lacerated wound on the right frontal region measuring 2- 1/2” x =” x bone deep with the compound fracture of underlying frontal bone.

2. Obliquely situated lacerated wound on the lateral aspect of the right eye brow; 1-1/2" x =” into bone deep with fracture of underlying bone.

3. Compromise at the root of the nose with fracture on nasal bone.”

4. Lacerated wound on the right side of the lower lip =” x <“.

5. Abrasion on the anterior aspect of the right leg =” x <“.”

On dissection, the external injuries were found corresponding to the following internal injuries:

1. Fracture of right side of the frontal bone of the skull, fracture of right orbit, fracture of nasal bone with crushing of right eye ball.

2. The membrane of the frontal region was returned.

3. Brain matters of right anterior part of the brain was crushed.

4. The gobbaly tree wood piece used by the appellant and the stone piece that Madhu had flung on the head of the deceased were also produced before the court as MO.2 and MO.1 respectively. On being shown the two material objects, the doctor stated that the injuries found on the dead body were possible if the person was assaulted with the club MO.2 and the stone MO.1. Further, replying to a question in cross-examination the doctor said that injuries Nos.2 & 3 found on the external examination of the body as recorded in the post-mortem report could have been caused if the deceased was hit with a stone and the other injuries could have been caused with the club or on coming into contac