Common intention under S.302/34, IPC, can be established by proving the intention to cause bodily injury sufficient in the ordinary course of nature to cause death, even if no particular injury was responsible for the death.

1. The opposite parties, 4 (four) in number, were committed to the court of Session to face a trial under S.302/34, Penal Code. The learned Sessions Judge, however, has come to the conclusion that no charge could be framed against the accused-opposite parties under that section of law. Instead, a charge under S.323. Penal Code, was framed against the accused-opposite parties and the case was transferred to the Court of the learned Chief Judicial Magistrate for a trial as provided by law. The State has come up in revision as the impugned order amounts to discharge under S.302/34. IPC.

2. A perusal of the impugned order shows that it is founded on, if I may say so with respect, a misconception that the death in question was caused due to any particular assault, which has been repeatedly described in the impugned order as a fatal blow. This would be apparent if we look at the post-mortem report which does not show any particular injury as such to be responsible for the death of Dilip Kumar. The autopsy rather reveals that the deceased had 12 (twelve) injuries on his person of which 11 (eleven) were abrasions on different parts of the body and one lacerated injury 2.5 c.m. just above the lateral part of the left eye brow. The learned Sessions Judge, however, thought that the death was due to assault by one of the unidentified accused-opposite parties with a handle of a jeep, and as it could not be known as to who had dealt that blow described as fatal blow, the learned Court came to the conclusion that the accused-opposite parties could not be roped in with the aid of section 34 of the Penal Code. Had it really been so that the death was due to one particular assault, then it would have been very relevant to find out if all the accused had shared the intention of causing of death by that blow. But that is not the case at hand. On this short ground, the impugned order could not have been set aside. But Shri Kataki has advanced another argument which merits due consideration. The submission is that on the face and the nature of the injuries found on post-mortem examination, it cannot be said that the accused-persons had shared the common intention of causing the injuries in question which could be said to be sufficient in the ordinary course of nature to cause death, or for that matter even likely to cause death.

3. In so far as clause thirdly of S.300, IPC, is concerned, the requirements to attract that clause are well known by now. The Supreme Court has settled the same in the leading decision of Virsa Singh v. State of Punjab, AIR 1958 SC 465 : (1958 Cri LJ 818). The important aspect of this decision which may be noted for our purpose is whether the injury found is sufficient to cause death in the ordinary course of nature is a matter of inference, or deduction from the proved facts, and it has nothing to do with the question of intention, which is confined to the causing of bodily injury and at the part of the body where the injury is found. If the intention were to be stretched to the first aspect also, then there would have been no necessity of third clause, as in that case the first clause itself would have taken care of the case. (See paras 9 and 10).

3A. Let it be next considered as to whether the common intention of the participants has to be only of causing death to attract the mischief of S.302 read with S.34, IPC, or the intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death will do. From the conspectus of the decisions cited before me, I entertain no doubt that even the latter intention would attract the operation of S.34. Further, this section would apply even if a cumulative effect of the injuries be of the nature which would be sufficient in the ordinary course of nature to cause death. Whether the injuries in fact are of this nature or not, is a different question and has to be examined in the facts and circumstances of each case. But if the nature of injuries b