Munna @ Nikhlesh Sharma vs State Of U.P.
2017 Latest Caselaw 2802 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Reserved on:06.07.2017   
 
 Delivered on : 31.07.2017
 
Court No. - 44 
 
Case :- CRIMINAL APPEAL No. - 3032 of 2004 
 
Appellant :- Munna @ Nikhlesh Sharma 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Kailash Praksh Pathak,J.P.Singh,Rakesh Pandey,Yogesh Kumar Srivastava 
 
Counsel for Respondent :- Govt. Advocate 
 
AND
 
Case :- CRIMINAL APPEAL No. - 2453 of 2004 
 
Appellant :- Ghure Mali & Another 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- P.C. Srivastava,Dharmendra Prasad Singh,Satya Dheer Singh Jadaun,Sudhir Solanki 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon'ble Bharat Bhushan,J. 

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(PER: HON'BLE DR. JUSTICE KAUSHAL JAYENDRA THAKER)

1. Heard Sri S.D. Singh Jadaun, Advocate along with Sri Dharmendra Prasad Singh, Advocate for the appellant Ghure Mali in criminal appeal no.2453 of 2004, Sri Yogesh Kumar Srivastava, Advocate for the appellant Munna alias Nikhlesh Sharma in criminal appeal no.3032 of 2004 and Sri Rajeev Sharma, learned AGA for State.

2. Both the aforementioned connected appeals have been filed against the judgment and order dated 2.4.2004 passed by learned Additional Sessions Judge, Azamgarh in Sessions Trial No.283 of 2000 (State Vs. Munna @ Nikhlesh and Others). Since both appeals have been heard together, we proceed to decide the same by this common judgment.

3. The appellants three in number, were facing trial for commission of offence under Section 302 IPC read with Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC') before the learned Additional Sessions Judge, Azamgarh. The learned Additional Sessions Judge, Azamgarh convicted all the accused and sentenced them for commission of offence under Section 302 read with Section 34 IPC to life imprisonment and to pay fine of Rs. 5,000/, in default to undergo further R/I for one year.

4. The facts in brief of the present case are that Premsheela Singh's husband Raj Bahadur Singh had been shot on 21.04.2000 by Pattal Giri of the village, who had been arrested and sent to jail. A day after the occurrence, her husband had, for his protection, gone somewhere in his relation and stayed there. On 03.05.2000 her husband returned home and at around 9.00 pm Munna, Ghure Mali and Suresh came over to her home and invited her husband for drinking but her husband did not go, after some time Isheem Darji of her village came there and again requested her husband Raj Bahadur Singh to come to the back door of his house where Raj Bahadur went. Some time later, when she went to accused Isheem Darji's house to ask her husband to come home, she saw her husband there taking liquor with the aforesaid persons. The complainant asked her husband to come back home along with her and when he was about to stand up for leaving, Ghure Mali, Suresh and Isheem Darji caught hold of him and accused Munna Sharma shot her husband with country made pistol, being injured with gunshot complainant's husband fell down. On alarm being raised by her, many villagers came over there but by that time the accused had fled away.

5. On the basis of complaint Ex ka 1 lodged by the complainant, FIR Ex ka 13 was registered u/s 307 IPC at PS Tarwa, Azamgarh in relation to C.C. No 118/2000 and entry of case registration was made in G.D vide report no 14 whose carbon copy Ex ka 15 is available on record. After registration of case, its investigation was initiated by the Investigating Officer who, immediately on reaching the place of occurrence, came to know of Raj Bahadur having died while being taken to the hospital for treatment, as a result of which the case was changed to section 302 IPC mentioning it in GD. Panchayatnama Ex ka 2 of deceased Raj Bahadur Singh was conducted on the spot and deceased's photo Nash Ex ka 5 and chalan Nash Ex ka 6 were prepared. Letter to R.I. to conduct post mortem Ex ka 7 and letter to Chief Medical Officer Ex ka 8 were prepared and the dead body having been sealed was sent to the Sadar Hospital, Azamgarh, where autopsy was performed on the person of deceased. The autopsy report Ex ka 16 is attached with file. The site map Ex ka 9 was prepared by the Investigating Officer on the basis of the complaint and possession memo of bloodstained chunri Ex ka 4 and possession memo of bloodstained and plain earth Ex ka 3 were also prepared. Besides recording of witnesses' statements, blood stained and plain earth, chunri and clothes such as underwear, black thread, waistband (kardhan), etc. recovered from deceased's body were sent to the Joint Director, Forensic Laboratory, U.P., Mahanagar, Lucknow and concerned report Ex ka 17 is attached with record.

6. In course of investigation, statements of the witnesses were recorded and other evidences collected, on the basis whereof the offence u/s 302 IPC came to be made out, following which chargesheet Ex ka 12 against the accused was submitted in the court of competent jurisdiction. Case being C.C. No 118/2000 u/s 302 read with Section 34 IPC, PS Tarwa, District Azamgarh was committed by Chief Judicial Magistrate, Azamgarh on 25.09.2000 to Sessions Court as it was sessions triable case.

7. On the basis of evidences available on record, charges u/s 302 IPC read with section 34 IPC were framed against accused persons. Accused persons pleaded not guilty and prayed for being tried.

8. The witnesses whom the prosecution examined to bring home the charges are as follows :

 
1.	Prem Sheela Singh (Eyewitness)		PW-1
 
2.	Lilawati  (Eyewitness)				PW-2
 
3.	Satya Guru Saran Singh 				PW-3
 
4.	Banwari Mishra 					PW-4
 
5.	Dr. O.P. Ravikul 					PW-5
 
9.	To bring home the charge levelled against the appellants-accused, the prosecution has also produced the following documentary evidence before the trial Court. 
 
1.	 FIR							Ex. Ka 13
 
2.	Written Report					Ex.Ka 1
 
3.	Recovery Memo & Palin Earth			Ex.Ka 3
 
4.	Recovery Memo "Churi"				Ex. Ka 4
 
5.	Injury Report 			
 
6.	Postmortem report 				Ex. Ka 16
 
7.	Forensic Lab report 				Ex. Ka 17
 
8.	Panchayatnama					Ex. Ka 2
 
9.	Site Plan with Index 				Ex. Ka 9 & 10
 

 

10. On the prosecution evidence having concluded, statements of accused persons u/s 313 Cr.P.C. were recorded. The accused denied the facts and stated that the chargesheet to have been submitted on the basis of false investigation. Accused Isheem Darji has also stated that the deceased Raj Bahadur was a man of criminal proclivities who was killed by some unidentified persons and that he has been implicated due to groupism.

11. On being given the opportunity to adduce evidences in their defence, the true copy of the First Information Report paper no 67 kha related to Case Crime No 131/94 u/s 147, 148, 149, 307, 323, 504 and 506 IPC along with index letter 65 kha and true copy of the chargesheet being paper no 66 kha related to aforesaid case crime number have been presented by the accused persons. To show that deceased was a criminal minded person and had many enemies even in their village. No witness has been examined on oath to adduce oral evidence by the accused. All the accused pleaded that they have been falsely implicated.

12. Apex Court in Dhanaj Singh @ Shera And Ors vs State Of Punjab, 2004 (45) ACC 940 has held that mistake committed during the course of investigation has to be considered by courts seriously but merely because some mistake has been committed by the Investigating Officer, trustworthy evidence of eye witnesses cannot be rejected if such course is adopted court will play in the hands of the Investigating Officer and police personnel. Apex Court in Ram Singh @ Chhaju vs State Of H.P, 2010(1) SCC Crl 1496, wherein the Apex Court has held that defective investigation is not necessarily sufficient for rejection of prosecution case, if it is otherwise proved, that the guilt is brought home against the accused.

13. Apex Court in Vishnu Deo Poddar and another Vs State of Bihar, 2003 CR.L.J. 1558 has held that fate of prosecution does not depend on what prosecution or investigating officer ought to have done. The fate depends on the material already available on record. If the available material is sufficient to hold accused guilty of offence then the court cannot refuse to convict the accused merely because some part of investigation was poor or done in lackadaisical manner.

14. The testimony of witnesses, medical evidence and other relevant factors considered by the Sessions Court are considered by this Court also in light of the latest decisions of the Apex Court. The evidences are being re-appreciated and reevaluated by us. The evidence of all the witness have been discussed by the trial court in detail. We have sifted the evidences very closely. As far as all the witnesses who are eye witnesses concerned they have identified the accused. The evidences are not reproduced here but are discussed so as to see that the judgment does not become bulky. The testimonies are not reproduced verbatim but the same have been read over again and again by us and are threadabove scrutinised.

15. We have heard the learned counsel for accused persons and the Assistant Government Counsel and thoroughly perused the evidences available on record. Witnesses' evidences are as under:

16. Learned counsel for appellants submits that wife of deceased never deposed in FIR that PW 2 was present at the scene of offence. As far as Ghure Mali role is concerned, there are contradictory statement and PW-2 has got of witness. Mother-in-law of PW-1 is shown to have accompanied PW-1 only in her oral testimony. It is next submitted that it is highly improbable that three people would catch hold of deceased and one person would fire at him. PW-1 and 2 are not reliable witness and as they could not have scene the incident and there are lot of discrepancies as Pustangiri had enmity. PW-1 in her statement says that she took the injured to the Hospital. FIR is highly belated. It was night time and there is no recovery memo of Katta. It was next submitted that appellants have wrongly been roped and, therefore, the prosecution witness have tired to make out a new case before Trial Court. The finding of facts of Trial Court are based on surmises and conjuncture. Learned counsel for appellant -Munna Sharma submitted that bullets fired from Katta has not been recovered by Police Authority itself shows that there is discrepancy, the deceased did not die on the spot. Witness saw the accused running away from place of occurrence. It cannot be said that there was any meeting of minds which would attract Section 34 of IPC and accused are entitled for getting benefit of doubt.

17. Learned Standing Counsel submitted that the presence of all the witnesses is proved. There was no enmity between deceased and accused. They were not amicable to each other. Rather they have gathered together to have a party. It is further submitted that earlier FIR was lodged under Section 307 of IPC but as the injured died it was the accused were charged under Section 302. It is submitted that site plan goes to show that the incident would be seen from verandha where PW-1 saw the incident. In the circumstances, there is nothing to doubt of presence of witness.

18. Witness examined by prosecution PW 1 Premsheela Singh is the complainant of the instant case and widow of deceased Raj Bahadur Singh. PW 2 Leelawati is the mother of deceased Raj Bahadur Singh. Both the aforesaid witnesses have been examined on oath as eye witnesses. Both of them have submitted in their respective testimony on oath that prior to the occurrence deceased Raj Bahadur Singh had been shot by Pattal Giri and Munna and the police had arrested Pattal Giri. These witnesses, through their statements on oath, have attempted to corroborate the facts mentioned in FIR stating that on 03.05.2000 accused persons had come to deceased Raj Bahadur's house to call him; and on the call of Isheem Darji Raj Bahadur had left for their house. PW 1 Premsheela Singh has also clarified that after sometime when she went to Isheem Darji's house to fetch her husband Raj Bahadur (deceased), she saw her husband taking making party by taking liquor with accused persons. This witness has further made it clear that she asked her husband to come home and her husband was about to leave with her when other accused persons caught hold of him and Munna fired gunshot at her husband causing injuries near his eye and abdomen, as a result of which he fell down on around. This witness has also clarified that on the alarm being raised by her, many villagers came over there but accused persons fled away. PW-2 Leelawati has tried to make it clear that her daughter-in-law, complainant Premsheela had gone to call her son for taking meal, and after some time, she also reached the spot following her daughter-in- law; where she had seen her son consuming liquor with accused persons. This witness has also stated that accused person caught her son and Munna fired two bullets on him when her son, Raj Bahadur got up and started proceeding for going hom. PW-1 Premsheela Singh in her statement on oath has also clarified that on the day of occurrence her husband was not feeling well, whereby he had not eaten anything since morning. On the other hand, according to PW-2 Leelawati, her son deceased Rajbabahur had taken food. These witnesses in their testimonies on oath have also clarified that when Raj Bahadur reached house of Isheem Darji, he was wearing vest, underwear and Lungi (Chunari). PW-1 Premsheela Singh, the complainant of the case and examined as witness by the prosecution, has also clarified that she had written and submitted the tehrir at the police station, and lodged the case. In this way, both the witnesses in their statements on oath have tried to confirm the factum of occurrence mentioned in tehrir Ex.-Ka-1 and they have also stated that the deceased Raj Bahadur was called by the accused persons from his house and taken to the house of Isheem Darji; where Raj Bahadur, when on being called by his wife during consumption of the liquor started getting up, accused Munna alias Nikhlesh Sharma with the help of his accomplices fired bullet on him, thereby causing his death.

19. PW-5 Dr. OP Raviqul, examined by the prosecution, has testified in his statement on oath that the post-mortem on the body of deceased Raj Bahadur was conducted by him at 3:15 P.M. on 04.05.2000 during his posting at Women's Hospital, Azamgarh. The deceased was brought by Constable Om Prakash and Constable Chandrabhan sent by SO Police Station Tarwa. This witness has also clarified that the age of deceased was about 28 years, and the effect of rigormortis after death was present on both his lower hands and legs. The mottled skin due to death was on the side lying under the body. This witness in his statement on oath has also stated that during the examination, the following injuries were found on the deceased: -

(i) Firearm wound of entry, 2 cm x 1.5 cm, bone deep, 2 cm outwards from the corner of right eye on the right face, the blackening and singeing was present, and margins of the corner of right eye were inverted.

(ii) Firearm wound of exit, 2.5 cm x 2.0 cm, on the neck, through and through, 3.0 cm below the left ear, the margins of which were everted, the injury corresponds to injury no. 1

(iii) The firearm would of entry, 1.50 cm x 1.0 cm, on the left side of the abdominal region, 2 cm above the pelvis region. The blackening on the injury was present and the margins of which were inverted.

(iv) The firearm wound of exit, 5 cm x 3 cm, on the right side of the abdominal region, 9 cm up and exterior to umbilicus, and the margins of which are everted. This injury corresponds to the injury no. 3.

(v). Old wound, 1 cm x 1.5 cm , on the exterior part of right elbow.

20. Doctor opined that on internal examination, right maxillary bone and right front temporal bones were found fractured. Both the chambers of heart were empty. The weight of the heart was 180 gm. In the abdominal cavity, there was around 2½ litres of blood. The numbers of teeth were 16 each in the upper and lower jaws. The stomach was empty. The patasi (omentum?) which provides back up to the intestines was filled. The rectum was empty. Lever was ruptured and gall bladder was filled. The tilli (spleen) had turned yellow, the weight whereof was around 90 gm. Right kidney was ruptured and left kidney was normal. Urinary bladder was empty.

21. On the basis of post mortem report of the deceased Raj Bahadur Singh, Dr. OP Ravikul has opined that the cause of death of the deceased is excessive bleeding, and shock due to ante-mortem injuries. It has also been opined by the doctor that the death of deceased is possible at 9:00 P.M. on 03.05.2000 by two rounds of fire, and generally the injuries found on the person of deceased are sufficient to have caused death.

22. This witness has also clarified that the post-mortem report available on the record, Ex.-ka-16, is in his writing and under his signature; which he prepared during the post-mortem. The clothes the deceased had worn and other items on his person were handed over to the constables who had come with the sealed body. During the cross-examination, the witness has also clarified that the death of deceased Raj Bahadur is possible at 12:00 O'clock on the night of 03.05.2000. This witness has also clarified that the injuries inflicted on the person of deceased were caused by firearms; wherein injury no. 1 can be caused by firing gunshot at point bank range, and the injury no. 3, from the distance of 1 ft. This witness has also clarified that the injury no. 5 on the deceased was old in the form of abrasion. This witness has also clarified that considering the condition of stomach, it can be said that the deceased prior to his death had eaten nothing 4 hours before his death; and in his opinion, the death of deceased can be possible at 8:00 P.M. on 03.05.2000. In this way, by the testimony of PW-5 Dr. OP Ravikul, it is clear that the death of deceased was caused by the two bullets fired on him, which passed through his body, and also the deceased had eaten nothing four hours before his death. In view of these facts, the death of deceased is caused at around 9:00 P.M. on 03.05.2000 due to excessive bleeding and shock owing to injuries caused by firearms.

23. PW-3 Shri Satya Guru Sharan Singh examined as witness by the prosecution has also been Investigating Officer in the matter. In his evidence, this witness has stated on oath about his being posted as SO at the Police Station Tarwa on 03.05.2000. The witness has also stated clearly that a case was registered on the basis of written information by the complainant Premsheela w/o of Rajbahaur at 9:00 P.M. at the same night, and along with it, a copy of the chik with respect to the case and a copy of report was given to him for investigation by constable Ghulab Singh. After reaching the occurrence spot, the statement of the complainant was recorded. This witness has also clarified that on reaching the occurrence spot, it transpired that some persons had gone to Lalaganj Hospital taking the injured person with them. Hence, he started search for the accused persons. Meanwhile, other force from the Police Station met him when he reached the village Subhano trisection. He also got information that injured Rajbahadur had died. Hence, he again returned to the occurrence spot. In this evidence, he clarified also that the body of the deceased was placed at the door where he prepared panchayatnama 'Ex.-Ka-2' in his writing and under his signature, and collected samples of plain and blood stained earth. Its memo is Ex.-ka-3 and the memo, Ex.-ka-4 for blood stained chunari was prepared in his writing and signature. He also prepared documents in his writing and under his signature in connection with Post-mortem, photo naash Ex.-ka-5, Challan naash Ex.-ka-6, letter to RI, Ex.-ka-7 and letter to Chief Medical Officer Ex.-ka-8. The body after being sealed properly was sent to Sadar Hospital for the conduction of post-mortem by fellow constables. The witness has also clarified that the site map of the occurrence spot he prepared in his writing and under his signature, which is marked as Ex.-ka-9. The witness has also clarified that the accused Munna was taken into the custody of police and on the leads furnished by him a country made pistol used in the occurrence was recovered, the site map whereof in this connection is Ex.-ka-10, which is on record. The witness has also clarified that he had recorded the statements of the witnesses with respect to taking possession of the samples of plain and blood stained earth and chunri and also of the witnesses of the panchayatnama. This witness has also clarified the evidence of recording the statements of deceased's mother and sister on 15.06.2000. He has also stated that he filed a charge-sheet marked as Ex.-ka-12 in his writing and signature in the court on 24.07.2000 once the offence of accused came in light. The witness during cross examination has also clarified that he received information for the registration of the instant case at Bhagwanpur trisection at 3:00 A.M. and he reached the spot at 3:30 A.M. Constable Shri Shiv Vilas Singh had given him a copy of the chik and report. He had gone there on a cycle. PW-3-witness has also clarified that he had seen Premsheela w/o deceased and Leelawati, mother of deceased, in blood stained clothes, but he did not take them in his possession. The witness has denied the facts that he had got written tehrir (complaint report) Ex.-ka-1 by dictating its contents to the complainant, and he got the case registered at the police station by getting the same tehriri report filed by Premsheela. This witness has also clarified that the distance from the door of the complainant to the occurrence spot would be 20-25 paces. This witness has also clarified that one or two cases were registered at the police station against the deceased Raj Bahadur, and he does not know if any other cases were registered against him at other police stations in connection with murder and loot.

24. It is clear from the testimony of PW-3 Satyaguru Sharan Singh on oath that the instant case was investigated by him and during the investigation, he recorded the statements of the witnesses for the memos of plain and blood stained earth and chunri and panchayatnama along with recording the statements of the complainant. He prepared memo of the chunari worn by the deceased as lungi, and sent the body of deceased Raj Bahadur for post-mortem to Sadar Hospital, Azamgarh after preparing the documents, and after completing investigation, filed charge sheet in the court against the accused persons as the offence u/s 302 IPC came into light.

25. PW-4 Constable Banwari Mishra, examined by the prosecution has stated on oath that he was posted at Police Station Tarwa on 03.05.2000. The witness has clarified in his testimony that he prepared First Information Report Ex.-ka-13 on the basis of tehirir (complaint report) at 1:00 O'clock on 04.05.2000, and he also registered the case at GD in his writing and under his signature. He has written that a carbon copy thereof Ex.-Ka-14 is on the record. The witness as secondary witness has also testified that the report no. 14 registered at 8:05 O'clock on 04.05.2000 u/s 307 IPC was later changed into section 302 IPC. The change in the section was recorded at the GD by the fellow Constable Moharrir Haridas in his writing and signature. It is marked as Ex.-15 and put on record. In this way, the testimony of PW-4 constable Banwari Mishra is simply an evidence of a formal witness; who has proved the FIR 'Ex.-ka-13' available on record, the case registered at GD marked as Ex.-ka-14, and the changed section of the case at GD marked as Ex.-ka-15. The witness in cross-examination has clarified that the Station Head Officer of the police station was informed of the occurrence through RT set with the registration of the case.

26. The finding of fact recording presence of witness at the place of offence cannot be found fault with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within murder and culpable homicide not amount the murder. The reason why delve into this issue is from evidence fo prosecution all of them had gathered to have a party. It was not a pre-planned murder. Deceased did not died on spot but died while being taken to hospital. Case was registered under Section 307 IPC and, therefore, we are considering the question whether it would be murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused are in jail since more than 14 years and, therefore, sentenced would be incarceration for the period they have already in jail.

27. In State of Uttar Pradesh v. Mohd. Iqram and another, (2011) 8 SCC 80, the Apex Court has made the following observations in para 26 therein;

"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial Court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."

28. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

29. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

30. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

31. Having held that it was the accused who were present at the time of offence and are authors of offence, the question of what offence is committed, we have to sift the evidence on the touchstone of the principle enunciated by the Apex Court in catena of decisions.

32. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no common intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention or common object to do away with deceased who was their friend, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. The other two accused did not have any lethal weapon and only action attributed to them was catching hold deceased and, therefore, going by the evidence, it cannot be said that it was a premeditated murder but was culpable homicidal not amounting to murder. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided on 13.4.2011 which have to be also kept in mind. Nature of injuries caused by accused were sufficient to cause death and in this case Munna Ram had fired whereas the others had only caught hold of deceased and therefore they should be awarded with lesser punishment. Guidelines given by Apex Court would go to show that facts of this case would prove that intention of all the accused was limited to inflection of bodily injuries and to common murder as first case registered was not for Section 302 IPC but Section 307 IPC than converted to Section 302 IPC.

33. In the light of the foregoing discussion, appeals are allowed in part. Appellants are held guilty for commission of offences under Section 304 Part I and under Section 34 of IPC and awarded the punishment of sentence already undergone. Appellants be thus, released forthwith, if not required in any other case. Accused are in jail for more than 14 years.

Order Date :-31.7.2017

Mukesh