Rama Pasi And Another vs State Of U.P.
2019 Latest Caselaw 4396 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved on 29.4.2019
 
Delivered on 13.05.2019
 
Case :- CRIMINAL APPEAL No. - 1426 of 2005
 

 
Appellant :- Rama Pasi And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.V.S. Chauhan,Manish Kumar Yadav (Amicu,R B S Rathaur,S N Pandey,S.M. Mohsin Zaidi
 
Counsel for Respondent :- Govt. Advocate
 
along with 
 
Case :- CRIMINAL APPEAL No. - 1530 of 2005
 

 
Appellant :- Matauley @ Khushi Ram
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Arun Sinha,(Amicus Curie),Balram Singh,Dinesh Kumar,Manish Kumar Singh Yadav
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Virendra Kumar-II, J.)

1. Heard Mr. Manish Kumar Singh, learned amicus curiae appearing for the appellants as well as Mr. Hari Shankar Bajpai, learned Additional Government Advocate for the State and perused the lower court record.

2. The appellant Rama Pasi and Smt. Maika wife of Rama Pasi have preferred Criminal Appeal No. 1426 of 2005 assailing the impugned judgment and order dated 1.10.2005 delivered by the Court of learned Additional Sessions Judge, Fast Track Court-3, Lucknow in Sessions Trial No. 691 of 2004, arising out of Case Crime No. 205 of 2004 for offence punishable under Section 302 read with Section 34 IPC of Police Station Mohanlalganj, Police Lucknow.

3. Criminal Appeal No. 1530 of 2005 has been preferred by appellant Matauley alias Khushi Ram assailing the aforesaid impugned judgment and order dated 1.10.2005 passed in Sessions Trial No. 691 of 2004.

4. The accused appellants have been convicted and sentenced to undergo imprisonment for life and amount of Rs. 3,000/- fine has been imposed on each appellant Rama Pasi and Matauley with default stipulation to serve out additional rigorous imprisonment for one month. Learned trial court has imposed fine of Rs. 1,000/- fine against appellant Smt. Maika with default stipulation to serve out rigorous imprisonment for ten days.

5. The complainant Maiku submitted a written report Ex. Ka-1 at Police Chowki PGI of Police Station Mohanlalganj, Lucknow on 29.6.2004. On the basis of written report submitted by the complainant, check FIR Ex. Ka-2 was registered on 29.6.2004 at 7:15 a.m. regarding incident dated 28.6.2004/29.6.2004 occurred at 12:00 at night and crime number 205 of 2004 for punishable under Section 302 IPC was registered and G.D. Ex. Ka-3 of registration of crime were preapred.

6. The complainant has narrated in his written report Ex. Ka-1 that he is the resident of Village Amol Mazra Kalan within the limits of Police Station Mohanlalganj. The appellant Smt. Maika, who is wife of appellant Rama Pasi brought his son Lala to perform Puja/offerings at her house on 28.6.2004 at 8:30 p.m. Kailash son of Pratap informed the complainant at 12:00 at night that the appellant Matauley, Bindra alias Ravinder, Rama Pasi and Smt. Maika wife of Rama Pasi were assaulting Lala with lathi and sticks. The complainant along with his wife Smt. Kaushalya, and Baijnath son of Devi rushed and reached at place of occurrence and they saw in the moonlight that all the appellants were assaulting Lala with lathi and sticks in front of their house. The complainant and aforesaid witnesses raised alarm then, villagers Jagan Pasi and Mithai Lal arrived and challenged the appellants. The appellant Rama Pasi told him that Lala was lying with his wife therefore they will not let him alive and will eliminate him. The appellants/accused persons after assaulting the deceased Lala, fled away towards north direction. The deceased Lala expired on the spot. It is mentioned in the written report Ex. Ka-1 that the dead body of Lala was lying on the place of occurrence.

7. The Investigating Officer during course of investigation recorded statements of witnesses, prepared site plan Ex. Ka-9 of the place of occurrence, prepared inquest report Ex. Ka-7 and documents for autopsy police form-13 Ex. Ka-4, Photolash Ex. Ka-5, sample of seal Ex. Ka-6. The postmortem report Ex. Ka18 of the dead body of the deceased was prepared.

8. The Investigating Officer collected the bloodstained Pant and Shirt of the deceased from the place of occurrence. Bloodstains were found on lower part of pant. The Investigating Officer prepared recovery memo Ex. Ka-12 in this regard. The Investigating Officer has also collected ashes of material of offerings Havan, half burnt areca-nut (Supari) and wood in presence of Shyam Pasi, Nanhe and Ram Kumar Pasi witnesses and prepared recovery memo Ex. Ka-13.

9. The Investigating Officer on 29.6.2004 at 19 hours discovered two bloodstains sticks used by the accused persons on pointing out of Rama Pasi son of Shiv Charan and Smt. Maika wife of Rama Pasi in presence of Shyam Pasi and Ram Kumar. These appellants apprised the Investigating Officer that they used these sticks for committing murder of Lala. They provided two sticks/danda, which were hidden in Chhapper and were having bloodstains, which was situated in house of the appellants towards north-east corner. The Investigating Officer prepared recovery memo Ex. Ka-11 regarding this discovery. The Investigating Officer has also collected bloodstained and plain soil in presence of witness Shyam Pasi and Ram Kumar Pasi and prepared Ex. Ka-14.

10. The Investigating Officer on 4.7.2004 enquired from the appellant Bindra alias Ravinder. He apprised the Investigating Officer that he has hidden the stick used by him near guarder of Samadhi (tomb) of Birju. He also had apprised the Investigating Officer that he assaulted the deceased Lala along with his parents and brother in law Matauley. The bloodstained stick was discovered on the pointing out by co-accused Bindra alias Ravinder at 6:50 a.m. The Investigating Officer prepared recovery memo Ex. Ka-15 of this discovery. The Investigating Officer has prepared site plan Ex. Ka-10 regarding the discovery of two sticks, which were discovered on pointing out by the accused/appellants Rama Pasi and Smt. Maika Pasi. The Investigating Officer has also prepared site plan Ex. Ka-16 regarding discovery of stick on pointing out by the co-accused Bindra alias Ravinder.

11. The Investigating Officer after conclusion of investigation, submitted charge sheet Ex. Ka-17 against the accused persons. The appellant Bindra alias Ravinder was declared juvenile and his trial was separated.

12. The court of learned CJM Lucknow committed this case on 16.9.2004 to the court of sessions.

13. The trial court of learned Additional Sessions Judge Fast Tack Court-V, Lucknow framed charges against the appellant Rama Pasi, Smt. Maika and Matauley for offence punishable under Section 302 read with Section 34 IPC. The appellants/ accused persons pleaded not guilty and claimed to be tried.

14. The trial court recorded the statements of PW-1 complainant Maiku, PW-2 Smt. Kaushalya, his wife, PW-3 Baijnath son of Devi, PW-4 Ram Kumar, PW-5 Constable Ajai Kumar Singh, PW-6 Investigating Officer Sushil Kumar Kannojia, and PW-7 Dr. Mahendra Pratap. These witnesses have proved the aforesaid documents relied upon by the prosecution.

15. The trial court has recorded the statements of appellants under Section 313 Cr.P.C. They have stated that they have falsely been implicated in this crime due to enmity. They are innocent. All the appellants have stated that they will adduce defence evidence, but no defence evidence was adduced on their behalf.

16. The trial court, after appreciating and analysing the evidence of witnesses, has convicted the appellants for offence punishable under Section 302 read with Section 34 IPC and awarded the aforesaid punishment.

17. Learned amicus curiae has argued that the manner of assault narrated by the prosecution witnesses is highly doubtful. There are material contradiction in the statements of the witnesses. The prosecution has failed to prove its case beyond reasonable doubt against the appellants. The conviction of the appellants is bad in the eyes of law. The statement of the mother of the deceased that she has left her son's dead body and returned back home creates doubt. There is no eyewitness, who has seen the incident. The father and mother of the deceased reached at the place of occurrence, when they heard that their son was being assaulted by someone.

18. Likewise, it is argued on behalf of appellant Matauley that the prosecution had not produced any independent witness in support of the prosecution case and interested and partisan witnesses have been examined by the prosecution. Other grounds are the same as put forth for appellant Rama Pasi and Smt. Maika. It is further argued that only injury no. 3 was resulted fatal and the prosecution has not proved this fact that which of the appellants assaulted the deceased on his head which resulted in form of the head injury, hemotoma and the deceased gone in coma. There is difference between the ocular and medical evidence.

19. Learned amicus curiae has further argued that although the appellants have not adduced any defence evidence on the point of grave and sudden provocation given by the deceased by his conduct that he was lying on the cot of the appellant Smt. Maika on the date and time of the incident. His naked body was found on the place of occurrence. Therefore, it may be inferred from the circumstances appeared in the evidence adduced on behalf of the prosecution i.e. in statements of prosecution witnesses. There are sufficient ground to believe that the conduct of the deceased was as such, which gave grave and sudden provocation to the appellants and they assaulted the deceased in spur of the moments. Therefore, if the conviction of the appellants would be upheld, then their sentence may be converted for offence punishable under Section 304 IPC instead of offence punishable under Section 302 IPC.

20. It is further argued that learned trial court has mentioned in the impugned judgment and order dated 1.10.2005 that it was argued on behalf of the prosecution that motive for committing murder of the deceased was the conduct of the deceased that he was lying on the cot of appellant Smt. Maika on the date and time of the incident, even then learned trial court has convicted the appellants on the basis of deficient evidence for offence punishable under Section 302 IPC with aid of provisions of Section 34 IPC.

21. It is also argued that overt act of any appellant was not proved by the prosecution. It could not be proved that which of the appellant caused the injury no. 3, which was proved to be fatal, as per opinion given by the concerned doctor PW-7. Therefore, the prosecution is unable to prove the charges for offence punishable under Section 302 IPC and the fact that this crime was committed by the appellants in furtherance of common intention.

22. In support of his submission, learned amicus curiae relying upon the following exposition of law propounded by Hon'ble Hon'ble Apex Court regarding common intention and common object and argued that the prosecution has not proved this fact that all the appellants along with co-accused Bindra alias Ravinder assaulted the deceased in furtherance of their common intention:-

In the case of Kundan Singh v. Delhi Admn. reported in (1975) Supreme Court Cases (Cri) 241 Hon'ble the Apex Court in paragraph no. 7 has held as under:

7. The above mentioned evidence, therefore, shows that death was the combined result of rupture of the spleen as well as of one of the blows on the head. We do not even know which accused caused the severe stray injury on the head. We cannot hold all the accused liable for it unless there was a common intention to cause such injuries as may cause death. On this aspect, we are left in the region of doubt.

8. In these circumstances, we think that the ends of justice would be served if we set aside the convictions and sentences of the appellants under Section 302/34 and Section 364/34 IPC and convict each of the appellants under Section 304 Part II IPC. We accordingly do so. We also maintain the conviction and sentences of the appellants under Section 325/34 IPC and the sentences to run concurrently with those under Section 304 IPC. As we are informed that each of the appellants has been in jail for about 5 years, we sentence them to the period already undergone and direct that they be released forthwith.

In the case of Sukhbir Singh v. State of Haryana, reported in 2002 SCC (Cri) 616 Hon'ble the Apex Court has held as under:-

8. It is now well established that this Court does not, by special leave, convert itself into a court to review evidence for a third time. However, where the High Court is shown to have failed in appreciating the true effect and material change in the version given by the witnesses, in such a situation it would not be right for this Court to affirm such a decision when it occasions a failure of justice. The power under Article 136 of the Constitution of India is, no doubt, extraordinary in amplitude and this Court goes into action only to avert miscarriage of justice if the existence of perversity is shown in the impugned judgment. Unless some serious infirmity or grave failure of justice is shown, this Court normally refrains from reappreciating the matter on appeal by special leave. The findings of the High Court have to be judged by the yardstick of reason to ascertain whether such findings were erroneous, perverse and resulted in miscarriage of justice. If the conclusions of the courts below can be supported by acceptable evidence, the Supreme Court will not exercise its overriding powers to interfere with such a decision. If two views of an occurrence are possible the view taken by one of the courts which is favourable to the accused should be given credence. This Court in Ramaniklal Gokaldas v. State of Gujarat [(1976) 1 SCC 6 : 1975 SCC (Cri) 713] observed: (SCC pp. 7-8, para 3)

"3. It is a wholesome rule evolved by this Court, which has been consistently followed, that in a criminal case, while hearing an appeal by special leave, this Court should not ordinarily embark upon a reappreciation of the evidence, when both the Sessions Court and the High Court have agreed in their appreciation of the evidence and arrived at concurrent findings of fact. It must be remembered that this Court is not a regular court of appeal which an accused may approach as of right in criminal cases. It is an extraordinary jurisdiction which this Court exercises when it entertains an appeal by special leave and this jurisdiction, by its very nature, is exercisable only when this Court is satisfied that it is necessary to interfere in order to prevent grave or serious miscarriage of justice. Mere errors in appreciation of the evidence are not enough to attract this invigilatory jurisdiction. Or else, this Court would be converted into a regular court of appeal where every judgment of the High Court in a criminal case would be liable to be scrutinised for its correctness. That is not the function of this Court."

14.The prosecution in the instant case could not specifically refer to any of the objects for which the accused are alleged to have formed the assembly. It appears, from the circumstances of the case, that after altercation over the splashing of mud on his person and receiving two slaps on his face from the complainant party, Sukhbir Singh declared to teach the complainant party, a lesson and went home. Immediately thereafter he along with others came on the spot and as held by the High Court wanted to remove the obstructions caused in the flow of water. As the common object of the assembly is not discernible, it can, at the most, be held that Sukhbir Singh intended to cause the fatal blow to the deceased and the other accused accompanied him for the purpose of removing the obstruction or at the most for teaching a lesson to Lachhman and others. At no point of time any of the accused persons threatened or otherwise reflected their intention to commit the murder of the deceased. Merely because the other accused persons were accompanying him when the fatal blows were caused by Sukhbir Singh to the deceased, cannot prove the existence of the common object specifically in the absence of any evidence of the prosecution in that behalf. The members of the unlawful assembly can be held liable under Section 149 IPC if it is shown that they knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence.

15. The High Court, on appreciation of evidence, has rightly found that the common object of the accused persons, if any, was not to cause the death of the deceased and such an intention could be attributed only to appellant Sukhbir Singh. The prosecution evidence probabilises the version of the accused that the occurrence was sudden and unanticipated. The occurrence, including the quarrel and the causing of fatal blows to the complainant party, all took place within such a narrow compass which renders the story of the prosecution highly improbable. In the facts and circumstances of the case, it cannot be said that the findings returned by the High Court were completely improbable. The appeal filed by the State is not sustainable even on merits.

23. Regarding common object, following exposition of law propounded by Hon'ble Supreme Court is also relevant:-

Masalti Vs. State of U.P. AIR 1965 SC 202 (coram : Four Hon'ble Judges)

....Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

....What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s. 141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s. 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin1956CriLJ345 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin 1956CriLJ345 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.

In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day. Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not supported by the principles of law enunciated by this Court in the case of Baladin1956CriLJ345 .

Lalji and Ors. vs. State of U.P. (1989 )1SCC 437

....An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carry out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed' Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined, It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

Thus, once the Court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.

Shaji and Ors. Vs. State of Kerala (2011 )5SCC 423

7. On the other hand, Mr. T.S.R. Venkata Ramana, learned Counsel appearing for the Respondent-State, by drawing our attention to the judgment of the Constitution Bench inMohan Singh and Anr. v. State of Punjab: AIR 1963 SC 174, submitted that even after acquittal of two accused, in order to bring home the charge under Section 149 Indian Penal Code , it is not necessary that five or more persons must necessarily be brought before the Court and convicted. The following principles laid down by the Constitution Bench are relevant for our consideration:

8. The true legal position in regard to the essential ingredients of an offence specified by Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of Section 149 is that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made Section 141 inapplicable which inevitably leads to the result that Section 149 cannot be invoked against the Appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the Appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

9. In dealing with the question as to the applicability of Section 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the criminal courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted....

Umesh Singh & Anr. Vs.State of Bihar (2000 )6SCC 89

Vicarious liability, we may state, as rightly contended for the State by Shri B.B. Singh relying upon the decisions of this Court in Shamshul Kanwar v. State of U.P. [1995]3SCR1197 and Bhajan Singh and Ors. v. State of U.P.1974CriLJ1029 , extends to members of the unlawful assembly only in respect of acts done in pursuance of the common object of the unlawful assembly or such offences as the members of the unlawful assembly are likely to commit in the execution of that common object. An accused whose case falls within the terms of Section 149 IPC as aforesaid cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined. It is not necessary in all cases that all the persons forming an unlawful assembly must do some overt act. Where the accused had assembled together, armed with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is not obliged to prove which specific overt act was done by which of the accused. Indeed the provisions of Section149 IPC, if properly analysed will make it clear that it takes an accused out of the region of abatement and makes him responsible as a principal for the acts of each and all merely because he is a member of an unlawful assembly. We may also notice that under this provision, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. Tested on this touchstone, we may safely say that in the present case when the appellants were members of an unlawful assembly which was armed with lathis and guns and a declaration had been made that in the event there is any resistance to take away the paddy which is stated to have been the original object, they were willing to take life out of the deceased and take away the paddy. If that is the position, it is futile to contend for the appellants that their conviction is in any way bad.

Bans Narain Singh and Ors. Vs. State of U.P.(1998 )9SCC 3

....The arguments so far as the appellants whose conviction and sentence has been passed by the learned Sessions Judge and affirmed by the High Court is that the prosecution case must be held not to be proved beyond reasonable doubt, inasmuch as in respect of the 12 Army personnel found dead neither there has been any inquest nor has there been any post-mortem report and consequently the fact that homicidal death occurred has not been established. Further argument advanced was that even if it is held that the prosecution has been able to establish the 12 persons belonging to the Army forces died but there is no evidence to indicate that their death occurred on account of the shooting from the appellants and, therefore, the conviction of the appellants of the charge under Sections 302/149 cannot be sustained. It was also contended that so far as the appellant Shambhu Singh is concerned, on the admitted prosecution case that he was not there at the Quarter Guard when the firing started and came at a later stage he cannot be held to be a member of the unlawful assembly nor can he be held to have shared a common object particularly when the prosecution evidence is totally silent with regard to the overt act by the said Shambhu Singh.

....The High Court has indicated the fallacy of the reasonings advanced by the learned Sessions Judge in acquitting some of the accused persons by holding that "the trial court having held those accused persons were members of an unlawful assembly, they could not be exonerated under Sections 302/149  and 307/149". On analysis of the evidence the High Court has come to the conclusion that those accused persons became the members of an unlawful assembly and had seen some of the members of that assembly to have equipped themselves with rifles and have been indiscriminately using them against the Army jawans. Some of the accused persons in fact were injured which establishes the fact of their being present at the place of occurrence and their presence is also otherwise established through the oral testimony of more than two prosecution witnesses. Once it is held that they were also members of an unlawful assembly they will be liable for the unlawful activities of the members of the said assembly, even if they might not have actually fired the guns.

....The further argument that the prosecution evidence is not categorical to the fact that the death of the Army jawans occurred on account of firing by the appellants is equally unsustainable in view of the charge under Section 302 read with Section 149 IPC and in view of the findings that the accused appellants together with several others belonging to the Provincial Armed Constabulary formed an unlawful assembly and in resisting the Army jawans from taking charge of the armoury and the Quarter Guard indiscriminately fired at them. We have also examined the evidence on record and the conclusion is irresistible that the prosecution case that the accused appellants being members of an unlawful assembly indiscriminately started firing at the Army jawans which resulted in the death of 12 Army personnel has been proved beyond reasonable doubt, and as such, the High Court has rightly convicted them under Sections 302/149 IPC. We have also considered the argument specifically advanced on behalf of the appellant Shambhu Singh to the effect that Shambhu Singh was not there at the Quarter Guard when the firing started and he came at a later stage and as such cannot be held to be a member of an unlawful assembly but we do not find any substance in the same.

Murali Vs. State of Tamilnadu AIR 2001 SC 413

..... A perusal of the facts, as appears from the decision makes it clear the circumstances under which the right of private defence is to be made applicable, unfortunately the same is not available on the contextual facts. The accused was found present at the Tea Stall being deceased's place of business and as such can be termed to be an aggressor and as such question of there being any right of private defence does not arise. The definite evidence in the matter is that the accused opened the door with a blood stained knife. The nature of his injuries are not, however, sufficient by itself to sustain the plea of private defence. As a matter of fact both, learned Sessions Judge and the High Court have negatived such a plea and we do record our concurrence therewith. The injuries on the accused are rather minor in nature since they were restricted to tender diffusion and abrasion. There is no wound, much less any serious injury which may even prompt a person to take the most heinous step of committing the murder. Reliance was also placed on the decision in the case of Vijayan alias Vijayakumar v. State (represented by Inspector of Police) 1999CriLJ2037 wherein this Court on the facts of the matter in issue and evidence on record was inclined to give judicial imprimatur to the plea of right of private defence advanced by the appellant and held him not guilty and granted pardon.

Abdul Sayeed Vs. State of Madhya Pradesh (2010 )10SCC 259

On the other hand, Shri C.D. Singh, learned Counsel appearing for the State, has vehemently opposed the appeals contending that not framing the charge under Section 34 IPC is not fatal to the prosecution and the High Court has rightly convicted the appellants under Sections 302/34 IPC. Seventeen persons came to the spot armed with deadly weapons with a common intention to kill Chand Khan. They surrounded Chand Khan and started causing injuries to him. In such a fact-situation the eye-witnesses may not describe exactly what role had been played by an individual assailant. If there are small omissions in the depositions of the eye-witnesses, the same require to be ignored. The injured witnesses have to be relied upon and even in case there is some conflict between the ocular evidence and medical evidence, the ocular evidence has to be preferred. Therefore, the appeals lack merit and are liable to be dismissed.

In the instant case, a very large number of assailants attacked Chand Khan and Shabir (deceased), caused injuries with deadly weapons to them. The incident stood concluded within few minutes. Thus, it is natural that the exact version of the incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by the eye-witnesses.

There is no bar in law on conviction of the accused with the aid of Section 34 IPC in place of Section 149 IPC if there is evidence on record to show that such accused shared a common intention to commit the crime and no apparent injustice or prejudice is shown to have been caused by application of Section 34 IPC in place of Section 149 IPC. The absence of a charge under one or the other or the various heads of criminal liability for the offence cannot be said to be by itself prejudicial to the accused, and before a conviction for the substantive offence without a charge can be set aside, prejudice will have to be made out. Such a legal position is bound to be held good in view of the provisions of Sections 215, 216, 218, 221 and 464 of Code of criminal Procedure, 1973. ( Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364; Malhu Yadav and Ors. v. State of Bihar (2002) 5 SCC 724; Dhaneswar Mahakud and Ors. v. State of Orissa ; and Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh AIR 2009 SC 2661).

Gurmail Singh Vs. State of Punjab and Anr. : (2013)4SCC228

....Section 149 of the Indian Penal Code constructively criminalizes all members of an unlawful assembly if a member of that assembly commits an offence in prosecution of a common object of that assembly or if the members of that assembly knew likely to be committed in prosecution of that object. To bring a case within Section 149 of the Indian Penal Code three features must be present. Firstly, there must be in existence an unlawful assembly within the meaning of Section 141 of the Indian Penal Code. This is a mixed question of fact and law, which was overlooked by the Trial Judge. Secondly, an offence must have been committed by a member of the unlawful assembly. Thirdly, the offence committed must be in prosecution of a common object of the unlawful assembly or must be such as the members of the unlawful assembly knew likely to be committed in prosecution of that object. Once these ingredients are satisfied, the provisions of Section 149 of the Indian Penal Code will come into play and cover every member of the unlawful assembly.

In the case of Madan Singh Vs.State of Bihar : reported in (2004)4SCC622,

It cannot be laid down as a general proposition of law that unless the commission of an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means always necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage.

The expression 'in prosecution of common object' as appearing in Section149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may also vary on different members of the same assembly.

....When the factual scenario is considered in the background of the legal position enumerated above, the inevitable conclusion is that Section 149 has been rightly applied. The fact that the unlawful assembly's common object was to resist the enforcement of law, and to commit criminal offences and to overawe the authorities/public servants by use and show of criminal force stood firmly established on the evidence on record. Consequently, the criminal acts committed in furtherance of the common object, which acts were not only part of the common object of the unlawful assembly but also such which the members of the assembly knew reasonably well are such as are likely to be committed squarely attract Section 149 I.P.C. Certain Salient factual aspects clearly establish prosecution version. Firstly, defence plea regarding alleged apprehended attack by higher caste people has been found to be of no substance. If really the accused persons had gathered for reaping singada as claimed, there was no reason for the call to be given to start shooting at the police and then actual firing. A person who apprehends attack from some other person would rather welcome the arrival of the police and bring to notice of the officials about the apprehended danger and not to start firing at the police officials knowing them to be police, with defiance adopting a violent posture. This itself is sufficient to discard the defence version about nature and object of assembly.

In the case of State of Maharashtra Vs. Kashirao and Ors. : reported in AIR 2003 SC 3901, Hon'ble Supreme Court has held as under:-

....A plea which was emphasized by the respondents relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common'. it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section149, IPC may be different on different members of the same assembly.

'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful may subsequently become unlawful. In other words it can develop during the course of incident at the spot co-instanti.

....Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word 'knew' used in the second branch f the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikka range Gowda and Ors. v. State of Mysore1956CriLJ1365 ).

In the case of Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Mangal Pathak and Ors. reported in 1995 Supp (1) SCC 239, Hon'ble the Apex Court has held as under:-

....Now coming to the question of applicability of Sections 302/149 I.P.C., taking into consideration all the circumstances of the case we are firmly of the view that more than five persons participated in the occurrence. Therefore there is no difficulty in convicting A-2, A3 and A-8 under Sections 302/149 I.P.C.

....Accordingly we set aside the judgment of the High Court so far these three accused are concerned and convict A-2 Gurupada Pathak, A-3 Bidyadhar Pathak and A-8 Aswini Pathak under Sections 302/149 I.P.C. and sentence each of them to undergo imprisonment for life. Their conviction for the offence punishable under Section 148 I.P.C. and sentence of R.I. for one year and to pay a fine of Rs. 100/- in default of payment of which to undergo further R.I. for one month and the conviction of A-2 and A-3 under Sections 326/34 I.P.C. and sentence of R.I. for two years and to pay a fine of Rs. 500/- in default of payment of which to undergo further R.I. for six months, as awarded by the trial court, are restored. The other directions given by the trial court regarding disposal of the articles seized are upheld. In the result the appeal is allowed as against A-2, A-3 and A-8 and dismissed against other respondents-accused.

State of Haryana Vs. Shakuntla and Ors. (2012)5SCC171

....On a proper appreciation of the evidence placed on record, it is clear that in the circumstances, one could hardly expect any other evidence to be available. It would only be the family members who would be present at the place of occurrence of the crime and only such interested persons could depose with regard to commission of the crime. The statements of these witnesses are trustworthy and offer the graphic eye account of the exact events, during the course of occurrence. Clearly, there was common object among the members of the unlawful assembly to somehow do away with Manohar Lal and his wife Sushila.

....It is a settled principle of the law of evidence that it is not the quantity, but the quality of evidence that has to be taken into consideration by the Court while deciding such matters. As already noticed, even in the year 1986, Rajender and Matadin had beaten Manohar Lal and his wife, for which they were also facing criminal trial. Again, they had abused and beaten Naresh, PW-4 on 3rd July, 1994, when he was putting earth in the street in front of his house. Thereafter, on 5th July, 1994, this unfortunate incident had taken place. When on 5th July, 1994, Manohar Lal and his wife returned from Delhi, even before they entered their house and when they were discussing the incident that took place on 3rd July, 1994 with their teenage children, the accused persons, armed with weapons, came there and started assaulting Manohar Lal and his wife. This clearly shows that Matadin and the other accused had been looking for an opportunity to fight with Manohar Lal and his family members, on one pretext or the other. Matadin exhorted the others to 'finish them', upon which the accused persons started assaulting the victims and continued till both Manohar Lal and his wife Sushila died. The circumstance deserving the attention of this Court is that, even when Manohar Lal fell on the ground as a result of a blow on his spine, still none of the accused person showed any mercy, they instead continued with the assault. The statements of Dr. G.S. Yadav, PW-1 and Dr. Kamal Mehra, PW2, and the post mortem reports of the deceased, Ext. PA and Ext. PC clearly demonstrate the intentional brutality and intent of the accused to kill the victims. They caused as many as 30 injuries on the person of Manohar Lal and 33 injuries on the person of Sushila, resulting in the death of both of them.

Both the deceased had tried to run away, but were chased by the accused. While Manohar Lal exhorted the others, all accused persons, particularly accused No. 7, Kailash, effectively participated in inflicting injuries on the bodies of the deceased. Thus, a common intention came into existence at the spur of the moment, even if the same was not pre-existing. The existence of common object and intent is not only reflected from the circumstantial evidence, but is also clearly demonstrated in the statement of PW-4 and PW-5, respectively. The offenders, if have no common intention or object to kill the victim, they would normally stop assaulting the victim and leave him in the injured condition when he falls down on the ground. On the contrary, in the case in hand, all the accused, except those acquitted by the High Court, had participated with a common mind to cause fatal injuries upon both Manohar Lal and Sushila. PW-4, in his statement, has clearly and definitely explained the occurrence, by attributing specific role to each one of the accused. According to him, Rajender inflicted Jaily blow on the legs of Manohar Lal. Matadin gave Jaily blow on the head of Manohar Lal, which the deceased deflected with his hands. Krishan gave Jaily blow on the back of Manohar Lal, whereafter the victim fell on the ground. Thereafter, Bhim inflicted Kasola blow on the head of the deceased Manohar Lal and finally, all the other accused started mercilessly inflicting blows on the person of the deceased Manohar Lal.

....In this regard, we may refer to the judgments of this Court, in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150. This Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with the law. This Court, in the said judgment, held as under:

From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive.

....Section 149 creates a specific offence and deals with punishment of the offence. The only thing is that whenever the court convicts any person or persons of any offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same Under Section 149.

Besides relying on para 40 of the judgment of this Court in Waman & others Vs. State of Maharashtra (2011) 7 SCC 295, reliance has also been placed on Sarman and Ors. v. State of M.P. 1993 Supp. (2) SCC 356 to argue that as all the Appellants were armed with lathis, it was not clear from the statements of witnesses as to which injury had been inflicted by which accused. All the members of the unlawful assembly cannot be charged with offences Under Sections 302read with 149, Indian Penal Code.

In the case of Ramchandran and Ors. v. State of Kerala (2011) 9 SCC 257, a Bench of this Court dealt, at some length, with the scope and object of Section149 Indian Penal Code. It was held that Section 149 Indian Penal Code essentially has two ingredients, one, that the offence must be committed by any member of unlawful assembly consisting of five or more members and second, such offence must be committed in prosecution of the common object Under Section 141Indian Penal Code of that assembly or such as the members of that assembly knew was likely to be committed in prosecution of the common object.Clarifying the expression "common object", the Bench further said that it is not necessary that there should be a prior concert in the sense of a meeting of minds of the members of the unlawful assembly. The common object may form on the spur of the moment. It is enough if it is then adopted by all the members and is shared by all of them.

In the case of Waman (supra), the Court also stated that in order to attract Section 149 Indian Penal Code, it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. It must be within the knowledge of other members that the offence is likely to be committed in prosecution of the common object, and if such requirement is satisfied, then they would be held liable Under Section 149 Indian Penal Code.

It is not possible to define the constituents or dimensions of an offence Under Section 149 simplicitor with regard to dictionary meaning of the words 'unlawful assembly' or 'assembly'. An "assembly" is a company of persons assembled together in a place, usually for a common purpose. This Court is concerned with an "unlawful assembly". Wherever five or more persons commit a crime with a common object and intent, then each of them would be liable for commission of such offence, in terms of Sections 141 and 149 Indian Penal Code. The ingredients which need to be satisfied have already been spelt out unambiguously by us. Reverting back to the present case, it is clear that, as per the case of the prosecution, there were more than five persons assembled at the incident. All these nine persons were also convicted by the Trial Court and the conviction and sentence of six of them has been affirmed by the High Court. The members of this assembly had acted in furtherance to the common object and the same object was made absolutely clear by the words of accused Matadin, when he exhorted all the others to 'finish' the deceased persons.

In other words, the intention and object on the part of this group was clear. They had come with the express object of killing Manohar Lal and his family members. It might have been possible for one to say that they had come there not with the intention to commit murder, but only with the object of beating and abusing Manohar Lal and Ors. but in view of the manner in which Matadin exhorted all the others and the manner in which they acted thereafter, clearly establishes that their intention was not to inflict injuries simplicitor. Manohar Lal, admittedly, had fallen on the ground. However, the accused still continued inflicting heavy blows on him and kept on doing so till he breathed his last. They did not even spare his wife Sushila and inflicted as many as 33 injuries on her body. Where a person has the intention to cause injuries simplicitor to another, he/she would certainly not inflict 30/33 injuries on the different parts of the body of the victim, including the spine. The spine is a very delicate and vital part of the human body. It, along with the ribs protects all the vital organs of the body, the heart and lungs, etc. Powerful blows on these parts of the body can, in normal course, result in the death of a person, as has happened in the case before us. The way in which the crime has been committed reflects nothing but sheer brutality. The members of the assembly, therefore, were aware that their acts were going to result in the death of the deceased. Therefore, we find no merit in this contention of the accused also.

State of M.P. Vs. Deshraj and Ors. 2004CriLJ1415,

....Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab 1977CriLJ164 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

....The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34. In law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh1993CriLJ2246, Section34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

Charan Singh and Ors. Vs. State of Uttar Pradesh(2004 )4SCC 205

....The six appellants faced trial along with 18 others for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 and 307 read with Section 149 of the Indian Penal Code, 1860 (in short 'the IPC'). They were convicted by the Trial Court. For the offence relatable to Section 302 read with Section 149 IPC, life imprisonment was awarded; whereas for the offence relatable to Section 307read with Section 149 IPC imprisonment of 7 years was awarded. According to the prosecution, one Devi Charan (hereinafter referred to as the 'deceased D-1') lost his life on account of murderous assaults of the accused persons. Two other persons namely, Buddha and Shanti Devi (described hereinafter as deceased D-2 and D-3 respectively) lost their lives in the incident. All the 24 accused persons preferred appeal before the High Court. The High Court found that one accused named Shyamu was a juvenile and with reference to Section  of the U.P. Children Act, 1951 his conviction was maintained, but he was extended the benefit of the said Act. Though one Ram Pal was named in the first information report, no charge sheet was submitted so far as he is concerned. One Narena died during the pendency of the appeal before the High Court and the appeal abated so far as he is concerned. Dealing with the case of other 22 accused persons, the High Court found that the appellants 10 to 23 were stated to be armed with lathies only. There was no sufficient material to bring home the accusations so far as they are concerned. Though one Raj Pal was also similarly placed, the High Court made a distinction holding that he being the son of Harkesh, the prime mover of the entire episode, it can be presumed that he may have had a motive to join the unlawful assembly with his father, brother and others. Though one Mahesh Chand was also stated to be holding a spear, he was also found to be not guilty on the logic of the other accused persons who were holding lathies. He was also given the benefit of doubt.

Coming to the others who were armed with double barrel guns and country made pistols, the question is regarding applicability of Section149 IPC. Section 149, IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.

'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.

The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A 4-Judge Bench of this Court in Masalti v. State of U.P [1964]8SCR133 observed as follows:

"Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciated of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not."

To similar effect is the observation in Lalji v. State of U.P., 1989CriLJ850

"Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case."

In State of U.P. v. Dan Singh and Ors.1997CriLJ1150 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji v. State of U.P 1989CriLJ850 where it was observed that "while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".

....When the factual scenario is analysed in the background of legal position highlighted above, the inevitable conclusion is that accused-appellants Charan Singh, Dev Dutt, Virender Kunwar Pal and Harkesh have been rightly convicted by application of Section 149 IPC. Their appeals are without merit and are dismissed. In the ultimate result, the appeal of accused-appellant Raj Pal is allowed while those of the other accused-appellants stand dismissed. Appellant Raj Pal shall be released from custody unless required in any other case.

State of A.P. Vs. Thakkidiram Reddy & Ors. (1998 )6SCC 554

....It was also contended by Mr. Arunachalam mat since, admittedly, the injury inflicted by A1 caused the death of the deceased and the injuries inflicted by others on his person were simple in nature, it could not be conclusively said that A2 to A5 and A9 shared with A1 a common object to commit the murder. In other words, according to the learned counsel, committing the murder was the individual act of A1 and not in furtherance of the common object of the unlawful assembly. We are unable to accept the above contention for the reasons mentioned earlier. That apart, the manner in which the incident took place clearly proves that even if we were to assume that A2 to A5 and A9 did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A1 in prosecution of the common object so as to make them liable under Section 302 read with, the second part of Section 149 IPC. In either view of the matter, therefore, we are of the opinion that the High Court was not at all justified in acquitting A2 to A5 and A9 of the charges under Sections 148 and 302/149 IPC. (emphasis supplied)

Lalji v. State of U.P.,1989CriLJ850 wherein it said :

...."The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct office. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused.This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." (emphasis supplied)

....From the above judgments of this Court it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed - or he knew was likely to be committed - by any other person, he would be guilty of that offence. Undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test.

24. It is pertinent to mention here that charge under Section 302 read with Section 34 IPC has been framed against the appellants on the basis of common intention of the appellants to commit this crime. But learned amicus curiae has relied upon case law regarding common object of unlawful assembly, therefore, we have also quoted exposition of law on common object of unlawful assembly according to provisions of Section 149 IPC also.

25. In light of aforesaid exposition of law, we have perused the record of Sessions Trial No. 691 of 2004 (State Vs. Rama Pasi and others). The prosecution has produced PW-1 complainant Maiku son of Kandhai, who is father of the deceased. PW-2 Smt. Kaushalya, who is the mother of the deceased. PW-3 Baijnath was the eyewitness although he has been declared hostile by the prosecution. PW-4 Ram Kumar is the witness of discoveries/ recovery made by the Investigating Officer. We have appreciated and analyzed the evidence of these witnesses. PW-7 Dr. Mahendra Pratap has conducted autopsy on the dead body of the deceased.

26. PW-1 complainant Maiku and PW-2 Smt. Kaushalya have proved these facts that appellant Smt. Maika wife of accused Rama Pasi brought the deceased Lala in presence of PW-2 witness on the date of incident about 8.00 p.m. for performing Puja in house of the appellants Rama Pasi and Smt. Maika. They have also stated that Kailash informed them at 12:00 at night that the appellants were assaulting their son Lala. Both the witnesses PW-1 and PW-2 along with PW-3 Baijnath rushed and reached at the place of occurrence in front of house of the appellants Rama Pasi and Smt. Maika and co-accused Bindra alias Ravinder. PW-1 and PW-2 saw that the appellants Rama Pasi, his wife Maika, his son Bindra alias Ravinder (co-accused) and Matauley were assaulting the deceased Lala with lathi and danda.

27. PW-1 has specifically stated that Rama Pasi was having heavy stick. PW-1 and PW-2 have specifically stated that there was moonlight on the date of occurrence. The deceased Lala sustained injuries on his all over the body and he was in a naked condition. The deceased succumbed to injuries sustained by him.

28. PW-1 has stated in his examination in chief that he asked Rama Pasi, why they were assaulting his son, then appellant Rama Pasi told him that the deceased Lala was lying on the cot of his wife, therefore, they assaulted the deceased. All the appellants fled away after assaulting the deceased. He has also stated that blood was oozing from the injuries sustained by the deceased. He left villagers near body of the deceased and he went at 6:00 a.m. in the morning for lodging the F.I.R. at police station. PW-2 Smt. Kaushalya has also proved this fact that her husband lodged FIR of this crime at police station.

29. PW-1 has proved his written report Ex. Ka-1. He has stated that he appended his thumb impression on this report after listening it. PW-1 and PW-2 have also stated in their examination in chief that they raised alarm, then accused persons/appellants fled away from the place of occurrence towards north direction.

30. PW-1 in his cross-examination has stated that his son was doing work of exorcism (Jhaad Fook) from two years ago. Earlier PW-1 was conducting exorcism and he taught this work to his son because he became old and was having less vision. PW-1 has disclosed this fact that on the date of incident, his son Lala was not residing with Kewal Pasi. He went to Telibagh Bazar in the morning at 8-10 a.m. and returned back home on the date of incident at 4.00 p.m.

31. PW-1 has specifically stated in his cross-examination that he was able to see one accused in dock of the trial court at a distance of 20 paces. In the day light, he was able to see a person from a distance of 50 paces. If he would see unknown person, then he could not identify him. He was having less vision at night.

32. PW-1 in his cross-examination has clarified this fact that he was present in the village at the date and time of the incident, when Smt. Maika brought his son from his house. When he returned back home, his wife apprised him that Smt. Maika appellant brought Lala for performing Puja at her house.

33. PW-1 has specifically stated that he does not know whether Smt. Maika brought his son for treatment of her husband appellant Rama Pasi. He has also stated that Rama Pasi was able to move and often went to graze cattle. The Investigating Officer has also stated in his cross-examination that appellant Rama Pasi was not ill and he was healthy. The appellant Rama Pasi has not adduced any defence evidence to prove that he was ill on the date of incident as well as prior to it and he was unable to assault the deceased due to illness. Therefore, argument of learned amicus curiae in this regard is of no avail.

34. Learned amicus curiae on the basis of statement of PW-1 given in his cross-examination in this regard has argued that PW-1 was having less vision at night. Therefore, he could not identify the miscreants, who were assaulting his son at the alleged place of occurrence. The appellants are the residents of the same village Amol, in which PW-1 and PW-2 resides. Therefore, the appellants were known persons for PW-1 and PW-2. The appellant Smt. Maika brought the deceased Lala from house of PW-1 and PW-2, for performing Puja/offerings at her house. Therefore, PW-1 and PW-2 were able to identify the appellants in moonlight also.

35. PW-2 has specifically stated that she saw the appellants near their house when she reached near road i.e. at a distance of 3-4 paces from the road. This road was situated near their house.

36. PW-1 and PW-2 reached at the place of occurrence on the basis of information given by Kailash at 12:00 hours at night. PW-1 and PW-2 have seen the appellants in moonlight, while they were assaulting the deceased. Learned defence counsel has not given any specific suggestion to PW-1 and PW-2 that on the date of incident, moonlight was not available. Therefore, the argument of learned amicus curiae cannot be accepted that PW-1 was having less vision at night, hence, he could not recognize the appellants in moon light.

37. PW-1 has further stated in his cross-examination that Kailash apprised him about assault on his son at 12-1 (a.m.) at night and it was the night of moonlight on the date of incident. He went along with his nephew and wife at the place of occurrence. He saw the accused persons from a distance of 50-60 paces, while they were assaulting the deceased/his son. They raised alarm and the accused appellants fled away. His son was lying at a distance of 10-20 paces from house of the appellants.

38. PW-1 has further stated that the place of occurrence was situated in eastern side of the village and he could cover this distance within ten minutes. He has specifically stated that where the dead body of the deceased was found, a school, its toilet and house of the Rama Pasi was situated only. He has disclosed this fact that no body was residing in the school on the date of occurrence. The Khadanza was constructed from village up to the school, which was not the public way. The villagers/people often used the Pakka road.

39. PW-1 in his cross-examination has mentioned that house of Kailash is situated in north side of his house. He along with Baijnath and his wife reached at the place of occurrence and they challenged the appellants, then they fled away. No body except them was present at the place of occurrence. The appellant Rama Pasi and his wife was sitting near the dead body of the deceased and one stick was lying on the ground. They did not try to catch hold Rama Pasi and his wife. These appellants did not apprised him name of the accused persons.

40. PW-1 complainant Maiku has further stated that he reached at the police station in the early morning at 5.00 a.m. He and his son in law Lakshman, brother Ram Ratan and nephew Khiladi went at the police station. The Sub Inspector enquired from him, when he apprised the constable about murder of the deceased and that he wants to lodge the FIR. The Sub Inspector recorded his statement and obtained his thumb impression on one paper. He has specifically stated that when Kailash came at his house to call him, then his nephew also awoke and came at his house. He has further mentioned that Kailash did not apprise him about the name of the miscreants. He has stated that Kailash did not accompany him, when he went at police station to lodge the FIR. The scribe of written report Vishambhar Dayal accompanied him at the police station. He did not ask any motorcycle owner to accompany him for going at the police station. He has stated that the deceased/ his son was married.

41. He has refuted the suggestion that unknown persons assaulted his son and left him at the place of occurrence. He has also refuted the suggestion that he mentioned the names of the accused persons as told by Kailash and he had not seen the incident. He has further refuted the suggestion that Rama Pasi and his wife appellant Smt. Maika were looking after the dead body of the deceased. Although PW-1 has stated in his cross-examination that Rama Pasi sent Kailash to call him, the argument of learned counsel for appellant has no substance, because it has been specifically mentioned in the written report Ex. Ka-1 that Kailash son of Pratap came at house of PW-1 complainant Maiku on 28.6.2004 at 12.00 at night and apprised him that appellants Matauley son of Bharose Pasi, Bindra alias Ravinder son of Rama Pasi, Rama Pasi and his wife Smt. Maika were assaulting the deceased Lala with lathi and sticks. The witness PW-1 complainant Maiku and PW-2 his wife Smt. Kaushalya and PW-3 Baijnath on the basis of aforesaid information given by Kailash, reached at the place of occurrence and saw the appellants, when they were assaulting the deceased.

42. PW-1 has proved his written report Ex. Ka-1. He has appended his thumb impression on this written report. The scribe of this report is Vishambhar Dayal son of Sri Vishwanath resident of Village Kharika Telibagh, Police Station Cantt, Lucknow. PW-1 in his cross-examination has stated that Vishambhar Dayal was present, when he went to lodge the FIR at the police station. PW-1 in his statement as stated that this fact was not mentioned in his report on his behalf that Kailash apprised him this fact that Rama Pasi, his wife Maika, Matauley and his son Bindra alias Ravinder were assaulting the deceased.

43. PW-1 complainant Maiku is an uneducated and rustic witness. His statement that the aforesaid facts were written in his report as advised by the Sub Inspector is immaterial and there is no substance in argument of learned amicus curiae that written report Ex. Ka-1 was written by Vishambhar Dayal scribe on dictation or consultation or deliberations of any Sub Inspector. No such suggestion was given on behalf of the appellants to PW-6 Investigating Officer that he dictated the written report Ex. Ka-1 to scribe of the FIR i.e. to Vishambhar Dayal.

44. PW-6 Investigating Officer S.I. Sushil Kumar Kannojia has specifically stated that he was not present at Chowki PGI, when this crime was registered on the basis of written report (Ex. Ka-1). He has mentioned that he was informed by wireless, then he reached at Choki PGI. He has refuted the suggestion that he reached at the police station Mohanlalganj and brought check FIR. He received check FIR at S.G.P.G.I. Police Chowki. He has also stated that he recorded the statement of complainant at PGI Chowki and he recorded the statement of witnesses Jhamman Pasi, Mithai Lal and Baijnath at the place of occurrence.

45. Therefore, the statement of PW-1 given in his cross-examination dated 16.12.2004 regarding mentioning of names of the appellants in his written report on advice of PW-6 Investigating Officer or on the basis of his consultation and deliberations is not correct, as argued by learned amicus curiae. There is no material contradiction in statement of PW-1 regarding the facts and circumstances of the incident, in which, the appellants assaulted the deceased Lala/his son. There is no doubt about recognition and identification of the appellants by the PW-1 at the place of occurrence.

46. The evidence of PW-1 complainant Maiku cannot be discarded, on the basis of minor contradictions appeared in his cross-examination, being an uneducated and rustic witness.

47. PW-2 in her cross-examination has corroborated the statement of PW-1 that her son/the deceased came back home in the evening and Smt. Maika brought him at about 8:00 p.m. She has specifically stated that on the date of incident, it was moonlight and she also saw the incident in light of torch. This torch was shown to the Sub Inspector. They (PW-1, PW-2 and PW-3 Baijnath) were having torches. The Sub Inspector took these torches in his possession. She has mentioned that when she reached along with her husband and PW-3 Baijnath at the place of occurrence, no body came there. She has disclosed this fact that her husband and son were doing work of exorcism (Jhaad Fook) and Smt. Maika brought him for this purpose towards Jungle outside the village. She has stated that at this place, Puja/offerings was done and his son was assaulted. The dead body of her son was found at this place. When she reached at the place of occurrence, her son died.

48. PW-2 in her cross-examination has stated regarding the fact that "she returned back at night after seeing naked dead body of her son and did not see injuries sustained by him (the deceased)", has been stated in reference that when her son died at the spot then she along with her husband and PW-3 Baijnath returned at their home at night. After sunrise, she went along with villagers in the morning, where dead body of her son was lying at the place of occurrence and police personnel brought dead body of her son, at the police station. She did not accompany police personnel along with dead body of her son. They brought the dead body of her son from medical college at her house.

49. PW-2 has also stated that police personnel had sealed the dead body of her son. She has further stated that Sub Inspector recorded her statement, where the dead body of her son was lying. She has specifically stated that when the Investigating Officer recorded her statement, her husband was at police chowi. The Investigating Officer had not recorded statement of Baijnath in her presence. The investigate Officer recorded the statement in presence of her brother in law.

50. PW-2 has further stated in her cross examination that when her son went along with appellant Smt. Maika, she was alone at her house. The clothes of her son were also recovered from the place of occurrence. She has refuted the suggestion that this crime was registered against the appellant due to enmity and she has not seen any incident. PW-2 has specifically stated in her cross-examination that there was enmity between her family and family of the appellants, therefore, this crime was registered.

51. It is pertinent to mention here that PW-2 Kaushalya is also an uneducated and rustic witness. She has appended her thumb impression on her statement. Therefore, some minor contradictions might have appeared in her cross-examination. The appellants caused death of her son/deceased Lala on the date of incident at 12.00 at night in presence of PW-1 complainant Maiku and PW-2 Smt. Kaushalya. These witnesses and PW-3 Baijnath were sleeping at their house, after waiting for the deceased, who was performing Puja/offerings at the house of the appellants. PW-1, PW-2 and PW-3 reached at place of occurrence, when Kailash had informed them about the incident and they saw the incident of assault on the deceased and their son was expired at the place of occurrence, therefore their mental condition might have been adversely affected. Their statements were recorded after six months before the trial court, hence, some minor contradictions have appeared in their statements, which are immaterial. The genesis of the incident has been proved by PW-1 complainant Maiku and PW-2 Smt. Kaushalya that the appellants inflicted injuries on body of the deceased in furtherance of their common intention.

52. The following rulings of Section 34 IPC are relevant:-

In the case of Harbans Kaur v. State of Haryana, reported in (2005) 9 SCC 195 Hon'ble the Apex Court has held as under:-

8. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab[(1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

11. The section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P.[1993 Supp (3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

In the case of Israr v. State of U.P., reported in (2005) 9 SCC 616 Hon'ble the Apex Court has held as under:

21. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab[(1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

24.The section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v.State of A.P.[1993 Supp (3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

In the case of Hari Ram v. State of U.P., reported in (2004) 8 SCC 146 Hon'ble the Apex Court has held as under:-

10. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab [(1977) 1 SCC 746 : 1977 SCC (Cri) 177 : AIR 1977 SC 109] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

13.The section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. [1993 Supp (3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899] Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

In the case of Babu Singh v. State of Haryana, reported in 1995 Cri LJ 2630 Hon'ble the Apex Court has held as under:-

1. Though the appellants, three in number, along with Lila Singh, stood trial under Sections 307/34 IPC and other ancillary offences, the trial court convicted them under Sections 324/34 IPC for having caused injuries to Kaur Singh, Jiwan Singh and Harbans Singh, PWs. On appeal by the State, however, the conviction was altered. All the four accused were convicted under Sections 307/34 IPC but Lila Singh substantially for the offence under Section 307 IPC, and were imposed sentence of two years' rigorous imprisonment. On joint special leave petition to this Court, Lila Singh was declined leave whereas the appellants were granted, in view of the judgment and order of the High Court, applying Section 34 IPC.

2.We have heard the learned counsel. The injury from which murderous assault could be spelt out was attributed to Lila Singh. The other injuries on the injured persons were simple in nature. It is difficult, in the facts and circumstances of this case, to conclude that all the four accused had common intention of murderous assault on the PWs. It can otherwise be spelt out that they had a common intention but of a lesser offence i.e. under Section 324 IPC.

In the case of Sagayam v. State of Karnataka, reported in (2000) 4 SCC 454 Hon'ble the Apex Court has held as under:

6.To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.

Gopi Nath @ Jhallar vs. State of U.P. AIR2001SC2493,

....We have carefully considered the submissions of the learned counsel on either side. As for the challenge made to the conviction under Section 302 read with Section 34 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who jointed together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.

So far as the facts of the case on hand are concerned, in our view the Courts below could not be in any manner faulted with, for arriving at the conclusion to indict all the accused applying the principles engrafted in Section 34 , IPC, to punish them under Section 302 , IPC. That Ram Prasad was actively assisting the accused in the case involving the murder of Triveni Prasad and that in another police complaint against the accused, Ram Prasad was cited as a witness for the occurrence, though a report has been filed on it, has annoyed the accused in this case on account of their relationship with Triveni Prasad as well as his preparedness to be a witness in the case of alleged house burning against the accused, sufficiently establish the motive and common intention of the accused to do away with Ram Prasad. The appellant and Jata Shanker were also armed with Farsa and Shyam Shanker was armed with a lethal weapon like lathi. The evidence on record established their conduct in shouting in unison to do away with Ram Prasad and the appellant along with the other giving a blow simultaneously with Farsa, in spite of the victim trying to run away from the place by surrounding him and the further evidence about the exhortation said to have been made by Shyam Shanker exhibiting lathi that anybody who tries to come to the rescue of the victim will also be done away with, are more than sufficient in law to substantiate the concerted move and the common intention shared by all the accused to do away with Ram Prasad. One of the blows was not only fatal and considered on the basis of medical evidence to be sufficient in the normal course to cause death, but the simultaneous attack with Farsa by the appellant and Jata Shanker have been held sufficient to constitute the required overt acts in furtherance of the common intention shared by all of them to put an end to the victim. Consequently, the application of the principles enshrined in Section 34 , IPC, to the case on hand was fully justified and no exception could be legitimately taken to the same, on the peculiar facts of this case, to which due reference extensively had been made by both the courts below. The conviction under Section 302 / 34 , IPC, is, therefore, well-merited, calling for no interference in this appeal.

The grievance about the non-examination of any independent witness from public or the shop owner in front of whose shop the occurrence has taken place, has been specifically dealt with and, in our view, the reasons given therefore in the judgment under challenge cannot be said to be erroneous. The fact that the accused formed a definite and desperate warring group of criminals and for quite sometime there had been open hostilities exhibited involving criminal actions would normally deter anyone from the public extending their service or co-operation to be a witness against them.

Surendra Chauhan Vs.State of M.P. 2000 CriLJ 1789

....Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or ' promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayhangar v. State of Tamil Nadu 1976CriLJ1563 . The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence (Rajesh Govind Jagesha v. State of Maharashtra 2000CriLJ380 . To apply Section 34, IPC apart from the fact that there should be two or more accused, two factors must be established : (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked, in every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.

Sanjay and Ors. Vs State of Uttar Pradesh : AIR 2016 SC 282

.... In the instant case, the Appellants used firearms country made pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, second Appellant intended of causing such bodily injury and therefore conviction of the Appellant is altered from Section 302 Indian Penal Code to Section 304 Part I Indian Penal Code. The learned Counsel for the Appellant-Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, Appellant-Sanjay fired on Sheela (PW-2) on her neck, stomach and leg. Learned Counsel for the Appellant-Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code. There is no force in the above contention. The common intention of the Appellants is to be gathered from the manner in which the crime has been committed. Both the Appellants came together armed with firearms in the wee hours of 11.08.1998. Both the Appellants indiscriminately fired from their countrymade pistols at Roop Singh-deceased and Sheela (PW-2) respectively. The conduct of the Appellants and the manner in which the crime has been committed is sufficient to attract Section 34 Indian Penal Code as both the Appellants acted in furtherance of common intention. The conviction of the Appellant-Sanjay Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code is modified to conviction Under Section 304 Part I Indian Penal Code.

53. As far as learned amicus curiae has argued that Kailash son of Pratap, who apprised the complainant about the incident has not been examined on behalf of the prosecution and other witnesses, Jagan Pasi and Mithai Lal have not been produced on behalf of the prosecution, also. It is relevant to mention here that PW-3 Baijnath has been declared hostile on behalf of the prosecution although he was nephew of the complainant.

54. On the other hand, witnesses of recovery/discovery, Shyam Pasi and Kishori Lal have been discharged by the prosecution on 18.1.2005 because, they had been won over by the accused persons. Learned trial court has mentioned in the impugned judgment that witness Jagan Pasi was also discharged by the prosecution, because he had also been won over by the accused persons. Non-production of informer Kailash was not fatal for the prosecution because PW-1 complainant Maiku and PW-2 Smt. Kaushalya saw the incident, while the accused persons were assaulting the deceased.

55. Learned trial court has discarded argument of learned defence counsel that Kailash was not produced by the prosecution nor he was discharged.

56. Learned trial court has found that the evidence of PW-1 and PW-2 is sufficient to prove the charges framed against the appellants. Learned trial court has also recorded finding that PW-6 Investigating Officer has shown the place of occurrence marked ''C' where witnesses Jagan and Mithai Lal were present at the point of time of incident. Likewise witnesses PW-1 and PW-2 saw the appellants from place marked ''B'. It is specifically mentioned by PW-6 the Investigating Officer in the site plan Ex. Ka-9 that the dead body of the deceased was found at place marked ''A', which was situated near the house of Rama Pasi and agricultural field of Matauley.

57. PW-1 complainant Maiku has specifically stated in his statement that when they reached at the place of occurrence appellant Matauley was also assaulting the deceased Lala/his son. PW-1 has proved this fact that the dead body of the deceased was lying at the place of occurrence at a distance of 10-12 paces from house of the appellants. Therefore, the statement of the PW-6 Investigating Officer regarding site plan Ex. Ka-9 prepared by him corroborates the statement of PW-1 and PW-2.

58. The statement of PW-2 that the dead body of her son was found in Jungle is immaterial, because on perusal of site plan Ex. Ka-9, it reveal that house of appellant Rama Pasi is situated on the outskirts of village Amol. The Primary Pathshala and its toilet is situated at place marked ''C' in the south direction of the place of occurrence marked ''A'. No other house is constructed near house of accused Rama Pasi. The place marked ''A' where the dead body of the deceased was found in a vacant land of Gram Samaj. The dead body was lying in front of house of Rama Pasi at a distance of 15 paces.

59. In western side of place of occurrence agricultural field of Sukhdeen, Budhdha, Faquir and appellant Mataley son of Ram Bharose Pasi have been shown to be existed adjacent to the house of Rama Pasi and on eastern side of his house, Samadhi (tomb) of late Birju and agricultural field of Ori son of Birju have been mentioned by PW-6 Investigating Officer in the site plan Ex. Ka-9.

60. Therefore, the place of occurrence and where the dead body of the deceased was found has been shown by mark by ''A', is virtually situated in Jungle because there is no locality near the house of Rama Pasi. Hence, the statement of PW-2 Smt. Kaushalya that dead body of her son was found in Jungle and Puja/offerings were performed by the deceased in Jungle, becomes immaterial because she is an uneducated lady and rustic witness.

61. PW-6 Investigating Officer has collected bloodstained pant and shirt of the deceased, which were lying near the dead body of the deceased Lala and this place has been shown by PW-6 in site plan of mark ''Θ' PW-6 Investigating Officer has mentioned place mark "Four dots within circle", which was located in house of appellant Rama Pasi, where the deceased performed Puja/ offerings. The clothes of the deceased were lying at a distance of one pace and Jagan and Mithai Lal were present at a distance of 20-25 paces. PW-1, PW-2 and PW-3 were present at a distance of five paces from the place of occurrence, while they saw the appellants, who were assaulting the deceased.

62. PW-6 Investigating Officer has proved recovery memo Ex. Ka-12 regarding the recovery of bloodstained pant and shirt of the deceased. He has also collected the remains of Puja/offering ashes, half burnt areca-nut (Supari) and wood etc. from house of appellants Rama Pasi, Bindra alias Ravinder and Smt. Maika. PW-6 has proved recovery memo Ex. Ka-13 in this regard. PW-6 has collected bloodstained and plain soil from the place of occurrence, where, the dead body of the deceased was lying. He has proved recovery memo Ex. Ka-14 in this regard. The statement of PW-1 and PW-2 has also been corroborated by the statement of PW-6 Investigating Officer regarding recovery of dead body of the deceased from the place of occurrence, which was situated in front of the house of the aforesaid appellants.

63. The presence of appellant Matauley along with other appellants during course of incident has been proved by PW-1 complainant Maiku. PW-2 Smt. Kaushalya accompanied her husband and PW-3 Baijnath for place of occurrence on the information given by Kailash at 12:00 at night on the date of incident. She rushed and reached at the place of occurrence then it may be possible that she focused and witnessed Smt. Maika, Rama Pasi and Bablu alias Bindra, while they were assaulting the deceased. The witnesses PW-1 and PW-2 also raised alarm and challenged the appellants, therefore, it is also possible that PW-2 Smt. Kaushalya could not see the appellant Matauley, while he fled away from the place of occurrence.

64. PW-2 has proved this fact that in her presence Smt. Maika brought her son at about 8:00 p.m. on the date of incident from her house to perform Puja/offerings and she went at the place of occurrence on information given by Kailash.

65. Learned defence counsel for appellant Matauley has not specifically cross-examined PW-2 regarding the fact that appellant Matauley had not participated in the incident or he had not caused death of her son Lala. Learned defence counsel has cross-examined PW-2 on behalf of all the appellants. Moreover, appellant Matauley has not claimed this fact that he was not present at the place of occurrence as per prosecution version and he was elsewhere and from that place, his presence at the place of occurrence on 28.6.2004 at 12:00 at night was improbable in category of plea of alibi. The appellant Matauley has not proved this fact according to provisions of Section 11 and 106 of the Indian Evidence Act. It is pertinent to mention here that appellant Rama Pasi and Smt. Maika have apprised PW-6 Investigating Officer in their statements recorded under Section 161 Cr.P.C. that appellant Matauley had also assaulted the deceased.

Sections 11 of the Indian Evidence Act, 1872:-

11. When facts not otherwise relevant become relevant.--Facts not otherwise relevant are relevant--

(1) if they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Illustrations

(a) The question is, whether A committed a crime at Calcutta on a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

(b) The question is, whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant.

Section 106 of the Indian Evidence Act, 1872:-

106. Burden of proving fact especially within knowledge.- when any fact especially within the knowledge of any person, the burden of proving that fact is upon him.

66. It is pertinent to mention here that appellant Matauley is named in F.I.R. lodged by P.W.1, the complainant. He has proved that appellant Matauley also assaulted the deceased and actively participated in the incident. His solitary evidence is sufficient to prove involvement of appellant Matauley in this crime. Moreover, co-accused Bindra @ Ravinder apprised P.W.6 about complicity of Matauley in this crime. Matauley is brother-in-law (Sala) of co-accused Bindra @ Ravinder. He is resident of Village Amol and his agricultural field is situated near the place of occurrence, which is adjacent to house of appellant Rama Pasi. He might have attended Pooja/ offering performed by the deceased at house of appellant Rama Basi, being brother-in-law of co-accused Bindra @ Ravinder. P.W.1 has proved his presence during course of incident, committed by all the appellant and co-accused, in furtherance of their common intention.

67. It is relevant to mention here that no specific suggestion has been given to P.W.6 on behalf of appellant Matauley that co-accused Bindra @ Ravinder did not apprise him that Matauley along with him and appellants Rama Pasi and Smt. Maika assaulted and caused death of the deceased in furtherance of common intention of all appellants and co-accused.

68. P.W.2, Kausalya and P.W.3, Baijnath in their statement recorded under Section 161 Cr.P.C. have apprised the Investigating Officer, P.W.6, that Matauley had also assaulted the deceased Lala. P.W.2 might have focus on appellant Rama Pasi, Smt. Maika and their son, co-accused, Bindra @ Ravinder during course of incident, while appellants surrounded and assaulted the deceased. She has adduced her evidence according to her perception in disturbed mental state, because her son was being beaten up/ assaulted mercilessly by the appellants. P.W.6, Investigating Officer has found involvement of Matauley also and submitted charge sheet against him.

69. Investigating Officer has mentioned in case diary dated 29.6.2004 statement of PW-3 Baijnath, Jagan Pasi and Mithai Lal, who have supported the prosecution version regarding assault by the appellants and co-accused as narrated in the FIR by PW-1. He has also mentioned that he could not record the statement of PW-2 Smt. Kaushalya, as she was weeping and she was not in a condition to give her statement. The Investigating Officer could record statement of PW-2 Smt. Kaushalya on 30.6.2004 under Section 161 Cr.P.C.

70. She has stated that "she reached at the place of occurrence along with her husband and PW-3 Baijnath on information given by Kailash where she saw that co-accused Bindra alias Ravinder, Rama Pasi, his wife Smt. Maika and Matauley were assaulting her son with lathi and danda". She has specifically stated in her statement recorded under Section 161 Cr.P.C. that aforesaid four persons were assaulting the deceased. It may be possible that the concerned ADGC could not notice the name of Matauley mentioned in the statement of PW-2 Smt. Kaushalya, therefore he could not put up any question regarding Matauley.

71. It is also relevant to take note that the concerned A.D.G.C./ has not put any question to P.W.2, Smt. Kaushalya on the basis of her statement recorded under Section 161 Cr.P.C. regarding involvement of appellant Matauley, therefore, he has conducted proceedings of trial poorly on behalf of the prosecution. The fault of the A.D.G.C. cannot affect the prosecution adversely regarding non production of witnesses, Kailash, Mithailal and the scribe of written report, Ex.Ka.-1 also.

72. Likewise, fault of Investigating Officer, P.W.6 that he did not seize Lathi/ stick used by Matauley, as P.W.6 has stated during his cross-examination that he has not seized/ recovered Lathi/Danda from possession of appellant Matauley, cannot affect the prosecution adversely. No inference can be drawn on the basis of statement of P.W.6, Investigating Officer, in this regard that death of the deceased was not caused in furtherance of common intention.

73. P.W.3, Baijnath has accepted that Kailash informed P.W.1, the complainant, about assault on the deceased Lala at house of Rama Pasi, then he went along with P.W.1 and P.W.2 Kaushalya at place of occurrence and saw the deceased in injured state and his naked dead body. He found Rama Pasi and his wife Smt. Maika at the place of occurrence. He has also stated that it was moonlight on the date of incident, when he went with P.W.1 and P.W.2 at the place of occurrence.

74. A.D.G.C. has suggested PW-3 that he was giving his evidence under influence of appellants. It is relevant to mention here that P.W.3 has denied his statement recorded under Section 161 Cr.P.C. by the Investigating Officer, P.W.6, in which he has supported prosecution version.

75. P.W.6 has proved that he had recorded statement of eye witness Baijnath (P.W.3) during course of investigation. Therefore, P.W.3 might have adduced his evidence under influence of the appellants, hence, this fact that prosecution has declared him hostile is immaterial and does not extend any benefit to the appellants.

76. The following expositions of law of Hon'ble Apex Court is relevant regarding the evidence adduced by a witness, who has turned hostile. Such evidence of has hostile witness cannot be discarded in toto. The expositions of law are as follows:

In case of Gura Singh Vs. State of Rajasthan reported at AIR 2001 SC 330, the Hon'ble Supreme Court has relied upon the precedent ''Rabindra Kumar Dey. Vs. State of Orissa reported at 1977 Cri LJ 173' and it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether.

...It is for the court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness, if that part of deposition is found to be creditworthy.

...The terms "hostile", "adverse" or "unfavorable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavorable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms "hostile witness and unfavorable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavorable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the court. The court can, however,permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms "hostile, adverse and unfavorable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Administration AIR 1976 SC 2941 held: To steer clear of the controversy over the meaning of the terms 'hostile' witness, adverse' witness, 'unfavorable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in Cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi MANU/PR/0133/1922 : AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of hostility'. It is to be liberally exercised whenever the court from the witnesses demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavorable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness, can crossexamine and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavorable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor MANU/WB/0313/1931 : AIR 1931 Cal 401 an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'. It was emphasised that these departures from English Law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'. X X X From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited , the Judge should, as a matter of prudence, discard his evidence in toto.

The Hon'ble Supreme Court in case of Lella Srinivasa Rao Vs. State of Andhra Pradesh reported at AIR 2004 SC 1720, observed as under:-

".......The prosecution at the trial examined some members of the family of the deceased including her father, PW-1 and her uncles PWs-2 and 3, PW-4, Shyama Sundara Rao is a brother-in-law of PW-1, the father of the deceased. None of these witnesses have supported the case of the prosecution regarding torture and harassment of the deceased by her husband or mother-in-law. No doubt they have been declared hostile but their evidence does disclose the reason for the misunderstanding between the appellant and the deceased."

Mustkeen Vs. State of U.P. 2002 ALJ 128, Hon'ble High Court of Judicature at Allahabad has held that if witnesses has turned hostile, it is still open for the prosecution to bring on record circumstantial evidence to establish guilt of the accused.

The Hon'ble Supreme Court in case of Joseph S/o Kooveli Poulo Vs. State of Kerala reported at (2000 )5SCC 197 observed as under :-

...Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned Counsel for the appellant also tried to contend that the evidence of PWs-11 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightway condemned and their evidence discarded in its entirety. On going through the entire evidence of PWs-11 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever.

... The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any fate of the appellant.

77. It is pertinent to mention here that co-accused Bindra alias Ravinder is brother in law of appellant Matauley. PW-6 the Investigating Officer has discovered bloodstained danda on 4.7.2004 at 6:50 a.m. on pointing out of co-accused Bindra alias Ravinder from guarder, which was situated near Samadhi (tomb) of late Birju. Co-accused Bindra alias Ravinder apprised the Investigating Officer PW-6 that appellant Matauley and his parents Rama Pasi and Smt. Maika assaulted the deceased with lathi and danda. Appellant Matauley in his statement recorded under Section 313 Cr.P.C. has also not specifically stated that he was not present at the place of occurrence or he was present elsewhere and from that place, his presence at the place of occurrence was improbable.

78. On the other hand, appellant Matauley has stated that he has falsely been implicated in this crime due to enmity. He has not adduced any defence evidence regarding so called enmity or regarding his non-presence at the place of occurrence at the date and time of the incident of this crime.

79. PW-6 Investigating Officer has proved the recovery memo Ex. Ka-15. He has stated that on 4.7.2004, he acted upon information given by informer and arrested co-accused Bindra alias Ravinder at 6.15 a.m. and he discovered bloodstained patti of bamboo on pointing out of co-accused in presence of witness Kishori Lal and Paras Pasi. This bloodstained stick was recovered from bushes, which were situated near Samadhi (tomb) of late Birju. Co-accused Bindra alias Ravinder had also confessed the crime and apprised PW-6 Investigating Officer that lathi/danda used by him could be discovered on his pointing out. Therefore, there is no substance in argument of learned amicus curiae that prosecution has not proved involvement of appellant Matauley.

80. PW-4 Ram Kumar has proved that he also saw the dead body of deceased 6-7 months ago (from recording of his statement on 18.1.2005). He has stated that police personnel came at the place of occurrence and collected bloodstained clothes of the deceased i.e. Pant, Shirt and underwear. He also witnessed the collection of remains of Puja/offering ashes and half burnt wood etc. He has also witnessed the collection and blood-stained simple soil at the place of occurrence. He has appended his thumb impression on the recovery memos prepared by the PW-6 Investigating Officer regarding the aforesaid facts.

81. PW-4 has also stated that appellant Rama Pasi and his wife pointed out two blood-stained sticks and Investigating Officer discovered them from house of these appellants. He has specifically stated that Rama Pasi and his wife Maika apprised the Sub Inspector that they assaulted the deceased with these dandas. He has further stated that he stayed at the place of occurrence, until the dead body of the deceased was brought by police personnel. The Sub Inspector prepared recovery memo of these two dandas in presence of PW-4 and he appended his thumb impression on this recovery memo also. PW-4 in his cross-examination has disclosed this fact that he did not contact the Sub Inspector after date of incident.

82. The statement of PW-4 that Matauley was not present at this point of time does not extend any benefit to appellant Matauley. He has specifically stated in his cross-examination that bloodstained clothes of the deceased were lying on the place of occurrence. It may be fault of Pairokar of police station or ADGC that the aforesaid articles taken in possession by PW-6 Investigating officer were not produced before the trial court when the statement of PW-4 was recorded on 18.1.2005 by the trial court. The fault of the ADGC and Pairokar of the police station cannot affect the prosecution adversely on this count.

83. The statement of PW-4 Ram Kumar has corroborated statement of PW-6 Investigating officer regarding discovery of the aforesaid two blood-stained sticks from the house of appellant Rama Pasi and Smt. Maika, the bloodstained pant of the deceased and soil from the place of occurrence and the remains ashes etc of Puja/offering from the house of appellant Rama Pasi. The Investigating Officer has proved the recovery memos and site plan prepared by him. PW-6 has proved blood stained soil as material Ext-1, plain soil material Ext-2, remains of pooja material Ext-3 and pant-shirt of the deceased material Ext- 4and 5, blood stained lathi-danda discovered on pointing out of Rama Pasi as material Ext-6,7 and 8 and blood stained danda discovered on pointing out of Maika as material Ext-9,10, and 11.

84. PW-6 Investigating officer has stated that on the basis of sufficient evidence of witnesses collected by him he submitted charge sheet Ex. Ka-17 against appellants and co-accused Bindra alias Ravinder on 14.7.2004.

85. Learned amicus curiae has vehemently argued that PW-6 Investigating Officer has accepted in his cross-examination that Jagan Pasi, Baijnath and Mithai Lal were the eyewitnesses of this crime and the Investigating Officer has not recovered/seized danda used by appellant Matauley. The Investigating Officer has specifically stated in his cross-examination conducted on behalf of the appellant Matauley that there was only moonlight on the date of incident and another source of light was not available. Therefore, there is contradiction in statement of PW-2 and PW-6 regarding the fact that whether any source of light of torch, as stated by PW-2 was available with the witnesses PW-1, PW-2 and PW-3 or not?

86. It is relevant to mention here that PW-6 had not collected the torches available with PW-1, PW-2 and PW-3. PW-2 has stated that these torches were shown to PW-6 He has stated that he raided house of the appellant Matauley, but he was not available in his house. As far as he has stated regarding eyewitness Jagan, Baijnath and Mithai Lal, the witness Jagan Pasi has been discharged by the prosecution and Baijnath has turned hostile, who accompanied PW-1 complainant Maiku and PW-2 Kaushalya on the date of incident and reached at the place of occurrence and saw the incident or assault made by the appellants on the deceased.

87. It may be fault of the concerned ADGC that witness Mithai Lal was not produced before the trial court during the course of trial. Likewise since PW-2 Smt. Kaushalya is an uneducated and rustic witness, hence on the basis of loss of memory, she has stated that her statement was recorded by the PW-6 Investigating officer on the date of incident. This fact was clarified by PW-6 Investigating officer in his cross-examination that he recorded statement of PW-2 afterwards (i.e. 30.6.2004) and not on the date of incident.

88. PW-6 Investigating officer in his cross-examination has also clarified that house of Rama Pasi was situated at a distance of 15 paces from the place where the dead body of deceased Lala was lying. He has stated about the facts mentioned by him in site plan Ex. Ka-9 prepared by him specifically. No other contradiction was elicited during cross-examination of PW-6 Investigating Officer.

89. PW-7 Dr. Mahendra Pratap conducted autopsy of dead body of the deceased Lal on 29.06.2004 at 3.20 p.m. He found rigor mortis and P.M. staining which was present in lower part of the body. Membranes and brain were congested. Both lungs were congested. Left compartment of heard filled with blood. Its membranes were congested. Peritoneum was congested. 120 ML semi digested food was found in his stomach. Liver, Pancreas, spleen and both kidneys were congested, Gallbladder was half filled.

90. PW-7 has found following ante-mortem injuries on dead body of the deceased:

1) Contusion of size 2cm x 1 cm on inside of upper lip on mid line.

2) Abraded contusion of size 2 cm x 1 cm on right side of chin

3) Contusion of size 7 cm x 3 cm seated on head and forehead, 5 cm above base on nose.

4) Lacerated wound of size 6 cm x 0.5 cm muscle deep on right palm and ring finger

5) Contusion of size 8 cm x 3 cm on right side of posterior lateral region of abdomen at a distance of 12 cm from iliac bone

6) Contusion of size 8 cm x 3 cm on right side of abdomen on posterior lateral region adjacent to injury no.5.

7) Abraded contusion of size 2 cm x 2 cm in front of right knee

8) Abraded contusion of size 3 cm x 1 cm on middle of right leg.

9) Abraded contusion of size 4 cm x 3 cm in right eluteal region

10) Abraded contusion of size 3 cm x 1 cm on middle and back side of left leg

11) Abraded contusion of size 3 cm x 2 cm on toe of right leg and figures of foot of right leg.

12) Abraded wound of size 3cm x 1 cm x muscle deep in middle of little finger and ring finger of left palm.

13) Abraded contusion of size 2 cm x 1 cm on dorsal aspect of right foot in middle.

91. PW-7 has opined that he found clotted blood underneath all the aforesaid injuries and subdural hematoma was present all over the brain. He opined cause of death due to coma, as a result of ante-mortem head injury.

92. PW-7 has proved post-mortem report (Ext ka-18) and opined that the deceased might have sustained these injuries in the night of 28.06.2004/29.06.2004. During cross-examination conducted on behalf of Matauley, PW-7 has opined that the deceased ate something/his meal three hours before his death.

93. He has stated in his cross-examination conducted on behalf of Rama Pasi and Smt. Maika that the deceased died due to injury no.3. He found subdural hematoma underneath, this injury and opined that coma was cause of his death. He has also replied to the question put forth by learned defence counsel that all the injuries sustained by the deceased could not be caused by "danda" or broken bamboo stick. PM staining was present on back and rigor mortis was present in the dead body.

94. PW-7 has specifically stated that rigor mortis depends upon season also and it passes in summer season from 3/4th day up to 1-1/2 day and in winter it may persists up to 2 days. He has also opined that food could be digested within four hours. Therefore, no material contradiction was elicited during cross-examination of PW-7 regarding opinion given by PW-7 about nature of injuries sustained by the deceased and time of his death.

95. The following exposition of law propounded by Hon'ble Supreme Court are relevant regarding difference in medical evidence and ocular evidence of eyewitnesses:-

In the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, reported in AIR2003SC2855, (2003 )9SCC 322 Hon'ble Apex Court has held as under:-

9. Coming to the evidence of PW2 on which reliance has been placed by the learned counsel for the accused-appellant, he has been rightly described as untruthful by the Trial Court and the High Court. he accepted to have come near the house of the deceased on hearing shouts of Dahiben. But he stated that he did not enquire how he died and who was the assailant. This conduct was to say the least most unusual and abnormal. It was not because he was shocked and, therefore, did not ask. He does not say so. On the contrary, he describes in graphic details about alleged illicit relationship between PW1 and PW8. The Trial Court has rightly observed that he has tried to create a smoke screen. As regards the alleged discrepancy between medical evidence and ocular evidence it is to be noted that a combined reading of the evidence of PW9 who examined the deceased after he was brought to the hospital and PW7 who conducted the post-mortem, it is clear that there is no discrepancy in the medical evidence vis-avis ocular evidence. Only in respect of injury No. 1, there appears to be some confusion but that does not dilute the prosecution evidence. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye witnesses account which has to be tested independently and not treated as "variable" keeping in view the medical evidence as "constant". (See State of U.P. v. Krishna Gopal and Anr. MANU/SC/0506/1988 : 1989CriLJ288 ).

In the case of Balbir Singh, etc. Vs. State of Punjab, reported in (2005 )9SCC 299 Hon'ble Apex Court has held as under:-

8. Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries sustained by deceased Tara Singh would show that there were no deep penetrating injuries. Most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. The doctor, who conducted the post-mortem examination deposed that injury no. 11, namely, two bruises on the back of the deceased Tara Singh fractured two of his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it was Sikander Singh who caused those injuries, which ultimately proved fatal. Two other injuries were caused by Gorkha Singh, the first accused. Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a 'Kulhari' (axe), used the blunt portion of that axe. Sikandar Singh was armed with a 'Sotti' (wooden stick). He caught hold of deceased Tara Singh to enable other assailants to cause injury to him and Sikandar Singh himself gave 'Sotti' blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The 'Sotti' blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.

In the case of Shamsher Singh @ Shera vs. State of Haryana reported in (2002 )7SCC 536 Hon'ble the Apex Court has held as under:-

6. This is a case where the trial court as well as the High Court have concurrently held that the appellant is guilty of offence under Section 302 IPC. Both the courts have relied on the evidence of eye-witnesses, PW-7 and PW-8, on proper appreciation of their evidence. We do not find any good reason to discard their evidence. Their presence at the time of incident could not be doubted. Non-examination of Satbir, in our opinion, was not fatal when his brother Ram Chander (PW-8) was examined. It was not necessary that in all cases all the witnesses present at the time of occurrence should be examined, that too on the same point. Mere non-examination of one of the eye-witnesses to speak on the same point does not impair the prosecution case when the eye-witnesses examined fully support the prosecution case, as is done in this case.

At any rate, it is the domain of appreciation of evidence and both the courts below have accepted their evidence as supporting the case of the prosecution. PW-11, Dr. B.R. Kayat, has stated that cause of death was due to head injuries which were three in number and those injuries could be caused on the deceased by the axe (Ext.P9). He has also stated that the possibility of causing these injuries on the deceased with sharp side of axe was totally ruled out. It is on this statement that the learned counsel for the appellant laid great emphasis in the light of the statements of PW-7 and PW-8, the accused used the axe from the sharp side. The trial court in this regard observed that it might have been merely misjudgment of the witnesses; may be the axe was used from sharp side but if the deceased had attempted to sit or move, the sharp side had slipped and the blunt side of the head of the axe or the stick would have hit the head of the deceased. In our view, the evidence of the doctor himself that the injuries could be caused by the axe (Exbt. P-9) and the cause of death was because of head injuries, his evidence has to be read in proper perspective as a whole. Added to this, the evidence of eye-witnesses also support the case of the prosecution as to the giving of three blows on the head of the deceased by the appellant. Further recovery of axe (Exbt. P9), which was found with bloodstains, lent support to the prosecution case. The evidence of PW-13, the Investigating Officer, is also available on record in support of the prosecution case. Absence of motive, assuming it to be, does not benefit the appellant when there is reliable and acceptable version of the eye-witnesses pointing against him supported by the medical evidence.

8. The authorities cited by the learned counsel for the appellant, on the point that when there is conflict between medical evidence and the ocular evidence, the prosecution case should not be accepted, are of no help to him in this case. On deeper scrutiny of evidence as a whole, it is not possible to throw out the prosecution case as either false or unreliable on mere statement of the doctor that injuries found on the deceased could not be caused by a sharp edged weapon. This statement cannot be taken in isolation and without reference to other statement of the doctor that the injuries could be caused by Ex. P-9 axe to disbelieve the evidence of eye-witnesses. From the evidence available in this case the possibility of the blunt head of the axe or the stick portion coming in contact with the head of the deceased cannot be ruled out.

In the case of P. Venkateswarlu Vs.State of A.P. and Ors., reported in (2002 )10SCC 46 Hon'ble Apex Court has held as under:-

8. On the question of discrepancy between the medical and oral evidence of the eye-witnesses, a reference has to be made to the statement of P.W.5, the autopsy Surgeon. He has given a list of 27 injuries found on the body of the deceased. Injuries No.1 to 6 and 17 are on the head. Injuries Nos. 1,2,3,17,23 and 26 are cut lacerations. The cut lacerations could have been caused by a heavy cutting weapon just like an axe. The eye-witnesses had referred to axe blows given on the head of the deceased by A1 to A3. Only thing is that the autopsy surgeon did not say that the head injuries could have been caused by axe blows. This is the reason for alleged discrepancy between the medical and oral evidence. The cut laceration as stated could be said to be as a result of axe blows and therefore, we need not take this as discrepancy between medical and oral evidence. Injuries No. 13, 15, 16, 18, 24 and 25 were described by the doctor as stab injuries. These injuries could have been caused by a spear also which is a sharp edged weapon. Therefore, when doctor described certain injuries as stab injuries the same could well be caused by a spear. Injury No.1 alongwith injury No.17 was itself sufficient to cause death, and therefore, could be described as a fatal injury. The way we look at it, it appears that medical evidence is consistent with oral evidence, it is not possible to say that there is any discrepancy between medical and oral evidence.

In the case of Kamaljit Singh v. State of Punjab, reported in (2003) 12 SCC 155at page 159 Hon'ble Apex Court has held as under:-

7. The trial court was of the view that PW 5 was a "transplanted" witness and he was introduced after consultation and confabulations. No relevant or just reason was indicated by the trial court to so conclude. Though effort was made to show that he was interested in the conviction of the accused, the High Court analysed his evidence with great care and caution, taking note of the fact that he was the son of deceased Gurcharan Singh. After detailed analysis his evidence was found credible and the reasons which weighed with the High Court in this regard are not shown to suffer any infirmity to warrant our interference. The other factor which weighed with the trial court is the alleged variation between the medical and the ocular evidence. Here again, the trial court's judgment was practically not based on any acceptable reason. From a perusal of the statement of Devinderpal Singh (PW 5) and the medical evidence, referred to above, in our opinion, it cannot be said that there was any contradiction between the ocular and medical evidence. There was absolutely no occasion for the trial court to have observed that the evidence of PW 5 Devinderpal Singh was not exactly in tune with the medical evidence. Gurcharan Singh, the deceased had a stab-wound on the back of the chest on "left side, 22 cm below the neck and 1 cm from the midline", whereas Devinderpal Singh (PW 5) had stated that blow was given to his father on the back towards the right side. In our opinion, it could not be said that there was any contradiction between the ocular and medical evidence when sufficient materials were produced to prove the presence of the accused as well as PW 5 at the factory at the time of occurrence, the fact that some or more of records which could have been produced but not shown to be deliberately withheld cannot by itself cast any shadow of doubt on the veracity of the prosecution version.

8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484] .) The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal[(1988) 4 SCC 302 : 1988 SCC (Cri) 928 : AIR 1988 SC 2154] . When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference.

In the case of Krishnan v. State, reported in (2003) 7 SCC 56 : 2003 SCC (Cri) 1577 at page 61 Hon'ble Apex Court has held as under:

13. The medical evidence is at variance with the ocular evidence and, therefore, casts doubt thereon. Even if the prosecution case is accepted in its entirety, accused-Appellants 3 and 4 cannot be held guilty of offence punishable under Section 302 IPC as the ingredients of Section 34 IPC are not made out. According to the prosecution, blows were given on the back and this did not result in fatal injuries which were attributed to the assaults by the appellants Ayyar Thavar and Porutchyelvan. It was submitted that the defence plea of alibi taken by accused-appellant Ganesan has been wrongly discarded by the trial court and the High Court and similar is the case with the plea taken by accused-appellant Krishnan. Had the plea of alibi of the accused-appellant been accepted, it would have clearly established how the prosecution was trying to falsely implicate more persons. In other words, it was submitted that the material is inadequate so far as the accused-appellants Krishnan and Ganesan are concerned, and at the most they could be convicted for offence punishable under Section 324 or Section 326 IPC. It is pointed out that accused-appellant Krishnan is an advocate and has already been in custody for nearly four years.

18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not in any way run contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence.

20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".

21. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

In the case of Thaman Kumar v. State (UT of Chandigarh), reported in (2003) 6 SCC 380 : 2003 SCC (Cri) 1362 at page 388 Hon'ble Apex Court has held as under:-

13. Shri Sushil Kumar, learned Senior Advocate has strenuously urged that the injury found on the body of the deceased could not have been caused in a manner deposed to by the eyewitnesses and thus there is a conflict between the medical evidence and ocular testimony. At the time when the statement of PW 2 Dr G. Dewan was recorded, the chadar was produced in the Court and the same was converted into a rope by twisting and according to the witness, the thickness of the same in the middle was about 6 or 7 cm. Learned counsel has submitted that the ligature mark on the neck of the deceased was 1/2 cm in width and this was not possible from a chadar, the thickness of which after twisting and converting into a rope came to about 6/7 cm. We are unable to accept the submission made. It has come in evidence that the chadar was about 1 1/2 metre long and 1 metre wide. This shows that in fact it was not a full chadar or a bedsheet but was a piece of cloth, which is sometimes used by ordinary people like rickshaw-pullers to cover their face during winters, especially in the night. If the said piece of cloth is converted into a rope by rolling it over, its diameter will very much depend upon the fact as to how strongly and tightly it is rolled over. If a piece of cloth which is only one metre in width is tightly rolled over in the shape of a rope, its diameter will be much less than 6 or 7 cm and the ligature mark on the neck of the deceased would be of still lesser dimension.

16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.

18. Shri Sushil Kumar has drawn our attention to certain findings recorded by the learned Sessions Judge and has urged that he had rightly given benefit of doubt to the appellants and the High Court committed manifest error of law in reversing the aforesaid findings and convicting and sentencing the appellants while hearing an appeal against acquittal. The learned counsel has urged that the prosecution has failed to prove any motive on the part of the appellants to commit the crime. It is true that the only witness examined on the point of motive, namely, PW 7 Sardara Singh, who is the brother of the deceased, turned hostile and did not support the prosecution case. In his statement under Section 161 CrPC he had said that the deceased used to get commission for bringing customers to the guest house and he owed about Rs 42,000 in that account and some dispute had taken place with the owner when he had demanded his money. However, in his statement in Court he denied to have given any such statement. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved. In State of H.P. v. Jeet Singh [(1999) 4 SCC 370 : 1999 SCC (Cri) 539] it was held that no doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no offence was committed if the prosecution failed to prove the precise motive of the accused to commit it, as it is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In Nathuni Yadav v. State of Bihar [(1998) 9 SCC 238 : 1998 SCC (Cri) 992] it was held that motive for doing a criminal act is generally a difficult area for prosecution as one cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act and such impelling cause need not necessarily be proportionately grave to do grave crimes. It was further held that many a murder have been committed without any known or prominent motive and it is quite possible that the aforesaid impelling factor would remain undiscoverable. In our opinion, in the facts and circumstances of the case, the absence of any evidence on the point of motive cannot have any such impact so as to discard the other reliable evidence available on record which unerringly establishes the guilt of the accused.

96. PW-1 and PW-2 witnesses have proved this fact that the appellants assaulted the deceased Lala with "lathi" and sticks. PW-6 has proved that blood stained one stick of bamboo was discovered from their "chhapar" situated in their house on pointing out by Rama Pasi and another blood stained stick of bamboo on pointing out by Smt. Maika. The blood stained soil was collected by the Investigating Officer PW-6 from the place of occurrence, which was situated in front of house of appellant Rama Pasi and Smt. Maika, remains of "pooja", ashes, half burnt wood and "supari" was also recovered from inside of their house. PW-4 and PW-6 witnesses have proved this fact that blood stained pant and shirt of the deceased was found near his naked dead body.

97. Learned Amicus Curiae has vehemently argued that the deceased Lala, after performing "pooja"/offerings in house of appellant Rama Pasi and Smt. Maika till late night, slept there. The deceased tried to molest/ravish Smt. Maika at about 11.30-12.00 at night by laying on her cot. Smt Maika appellant awoke and raised alarm, on which, the appellant Rama Pasi and his son co-accused awoke also and caught hold the deceased and assaulted him due to this reason. The appellants assaulted the deceased in heat of passion and spur of the moments, because the deceased gave them grave sudden provocation by conducting as such. Therefore, the act of the appellants comes within the purview of culpable homicide not amounting to murder and their conviction for committing murder under Section 302 I.P.C. is bad in law.

98. Learned A.G.A. on the other hand has submitted that the deceased was brought by Smt. Maika for performing "pooja"/offerings at her house. PW-1 and PW-2 has proved this fact. The witness Kailash had informed PW-1 and PW-2 in night at 12.00 hours that Lala was being assaulted at house of Rama Pasi. Therefore, when PW-1 asked the appellant Rama Pasi during course of incident why appellants were assaulting the deceased, then appellant Rama Pasi put forth defence version as relied upon by learned Amicus Curiae. The appellant Smt. Maika or Rama Pasi have not taken permission for their examination as defence witness to prove these facts according to provisions of Section 106 of Indian Evidence Act that the deceased tried to molest/ravish Smt. Maika. Neither any suggestion has been given to PW-1 and PW-2 in this regard during their examination before the trial Court nor the appellants have stated on these facts in their statement recorded under Section 313 Cr.P.C.. All the appellants stated that they would produce defence evidence, but no such defence evidence was adduced by the appellants. Therefore, according to provision of Section 106 of Cr.P.C., this fact was in personal knowledge of the appellants that the deceased tried to molest/ravish Smt. Maika and he was found lying on the cot of Smt. Maika.

99. Learned A.G.A. has further submitted that the appellants were unable to prove their defence version as relied upon by the learned Amicus Curiae during the course of the trial. Therefore, learned trial Court has rightly and adequately punished the appellants for committing murder of the deceased Lala.

100. Learned Amicus Curiae has further argued relying on the following exposition of law "that if defence version was not proved on behalf of the appellants during the course of trial, then this Court may consider defence version on the basis of material available on record and if defence version appears to be true, then appellants' conviction and sentence may be converted for offence punishable under Section 304 I.P.C. in stead of offence punishable under Section 302 I.P.C".

In the case of State of Rajasthan v. Manoj Kumar reported in (2014) 5 SCC 744 Hon'ble the Apex Court has held in paragraph no. 13 as under:-

13. Mr Milind Kumar, learned counsel for the State, has submitted that the accused persons had not taken the plea of right of private defence in their statement under Section 313 of the Code of Criminal Procedure and hence, the High Court could not have adverted to the same. It is further put forth that even assuming that the stand can be considered, in the case at hand, the accused persons have miserably failed to discharge the burden in establishing their right of private defence. In this context, we may refer with profit to the pronouncement in:

13.1. Munshi Ram v. Delhi Admn. [AIR 1968 SC 702] wherein it has been laid that even if an accused does not take the plea of private defence, it is open to the court to consider such a plea if the same arises from the material on record and burden to establish such a plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.

13.2. In Salim Zia v. State of U.P. [(1979) 2 SCC 648] the observation made by this Court to the effect that it is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence.

13.3. Similarly, in Mohd. Ramzani v. State of Delhi [1980 Supp SCC 215], it has been held that: (SCC p. 221, para 19)

"19. ... It is trite that the onus which rests on an accused person under Section 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt."

101. Learned Amicus Curiae has further argued relying upon the aforesaid exposition of law that no lethal weapon was used by the appellants during the course of incident. They used only bamboo's, lathi and sticks for assaulting the deceased on the grave and sudden provocation given by the deceased and in spur of the moments and heat of passion. Only subdural hematoma was found in injury no.3. Other injuries sustained by the deceased Lala were not on vital parts. Dr. PW-7 has specifically opined that cause of death of the deceased was head injury resulting in coma i.e. injury no.3. No fracture was found along with subdural hematoma in brain of the deceased. Therefore, only knowledge of the appellants about inflicting injuries on his vital part head by lathi/sticks may be inferred on the basis of evidence adduced by the prosecution witnesses. The intention to commit the murder of the deceased cannot be inferred on the basis of nature of evidence adduced by witnesses PW-1 and PW-2.

102. We have carefully examined the record, case diary and evidence of witnesses PW-1 and PW-2 and other witnesses.

103. Learned trial Court has mentioned in the impugned judgment that learned A.D.G.C. argued before the trial Court that motive for committing the incident of assault on the deceased Lala was that the deceased, after performing "pooja"/ offerings till late night stayed at house of the appellants. He was found at 12.00 at night lying on the cot of Smt. Maika-appellant. Smt Maika awoke and raised alarm. Therefore, this was the reason for appellants to assault the deceased with lathi and sticks.

104. Learned trial Court has considered the statement of appellants recorded under Section 313 Cr.P.C. and observed that the appellants had stated to adduce defence evidence, but no such defence evidence was adduced by them.

105. Learned trial Court has considered statement of PW-1, the complainant Maiku and PW-2 Smt Kaushalya and after analysing their evidence observed that no suggestion was given in this regard to the witnesses that in which circumstances the deceased was lying on the cot of Smt Maika. No cross-examination was conducted by the learned defence counsel on these facts.

106. Learned trial Court has recorded finding that in cases of direct evidence, motive pales into insignificance and it has found evidence of PW-1 and PW-2 reliable to prove charge of murder under Section 302 I.P.C. against the appellants with aid of Section 34 I.P.C.

107. On the point that the the Court is always entitled to look into the case diary, Hon'ble Supreme Court in para-10 of its judgment in the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 SCC 505, has held that, "If the investigating officer did obtain the signature of Nar an intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the CrPC but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary.

108. Therefore, this Court is always entitled to see the Case Diary prepared by the Investigating Officer PW-6.

109. We have perused Case Diary. The Investigating Officer PW-6 has recorded statements of Rama Pasi and Smt. Maika appellants. Both appellants have apprised the Investigating Officer that "Smt. Maika brought the deceased Lala at 8.00-8.30 p.m. for performing "pooja"/offerings. This "pooja" was concluded till late night. Therefore, the deceased had laid in the Verandah of the School, which was situated in front of their house. They provided a bed sheet to him. The appellant Rama Pasi and his wife Smt. Maika, Bindra @ Ravindra slept in separate "Chhapers".

110. Both the appellants have also stated that "at about 11.00-11.30 the deceased came and had laid on the cot of the appellant Smt. Maika. The appellant Rama Pasi and his son Bindra @ Ravinder co-accused had caught hold the deceased. Appellant Matauley reached there on hearing noises. The deceased tried to escape. He was again caught hold by the appellants. They assaulted him with lathi and danda. In the meanwhile, they were putting off clothes of the deceased, the parents of the deceased Lala, Baijnath, Jagan, Mithai Lal Pasi witnesses came at the place of occurrence and challenged them, then Rama Pasi apprised PW-1 (the complainant) the aforesaid persons/parents of the deceased and witness that the deceased was laying on the cot of Smt. Maika, therefore, they will eliminate the deceased. They assaulted the deceased and fled away towards North direction. They had hidden lathi and danda in their "chhaper".

111. The appellant Smt Maika has apprised the Investigating Officer the same facts as narrated by the appellant Rama Pasi. They have also stated that Bindra @ Ravindra, Matauley brought their lathies used in the incident and fled away.

112. The Investigating Officer PW-6 has not conducted investigation on the basis of defence version provided by appellant Rama Pasi and Smt. Maika. The appellant Matauley in his statement recorded under Section 161 Cr.P.C. denied this fact that he caused death of the appellant Lala.

113. The Investigating Officer PW-6 has relied upon evidence of witnesses, the complainant (PW-1) and Smt. Kaushalya (PW-2), who are parents of the deceased Lala, (PW-3) Baijnath, Jagan Pasi, Mithai Lal witnesses of inquest and discovery and submitted charge-sheet against the appellants for offence punishable under Section 302 I.P.C..

114. Learned Amicus Curiae relying on exposition of law of Hon'ble Apex Court has argued that prosecution has not proved chemical analysis/examination report of blood stained pant of deceased, blood stained Lathi/sticks and blood stained soil collected from the place of occurrence. Therefore, it could not be established by the prosecution that human blood of the deceased was found on these articles.

115. Learned amicus curiae relying upon the decision of Hon'ble Supreme Court in the case of Dhananjay Shanker Shetty v. State of Maharashtra, reported in (2002) Supreme Court Cases (Cri) 1444 has argued that the Investigating Officer has not collected chemical analysis report of the blood-stained soil, bloodstained pant and blood-stained sticks. The chemical analysis report was not proved during course of trial by the prosecution. Hon'ble the Apex Court has held in paragraph no. 9 as under:-

9. Another circumstance which was alleged against the appellant was that bloodstained clothes and weapon were recovered from his house, but the trial court as well as the High Court did not place any reliance upon this circumstance in view of the fact that according to the report of the chemical examiner, the blood group found thereon did not tally with that of the deceased.

116. Although, PW-6 sent blood stained clothes of the deceased and blood stained lathi, danda to Forensic Science Laboratory, Lucknow through Constable Ram Awtar Gupta on 06.08.2004, but S.S.I. Tej Singh has only wrote supplementary C.D. on 07.08.2004 and had not tried to obtain chemical analysis report from the Forensic Science Laboratory and concluded the investigation. Therefore, it may be fault of S.S.I. Tej Singh, who conducted further investigation of this crime for obtaining chemical analysis report, but did not obtain it. On the basis of fault of S.S.I. Tej Singh. the Proseuction cannot be adversely affected.

117. The following exposition of law is relevant regarding fault and omissions committed by the Investigating Officers i.e. that he has not sent articles for chemical examination:

Hon'ble Supreme Court in the case of Bhaskaran Vs. State of Kerala, (1998) 9 SCC 12 : 1998 SCC (Cri) 843 in para-6 of the said judgment has observed as under:

6. This being a statutory appeal we have, with the assistance of the learned counsel for the parties, gone through the entire evidence on record, particularly, the evidence of PWs 1 and 2. Having done so we are in complete agreement with the High Court that the evidence of the above two eyewitnesses can be safely relied upon and made the basis for conviction. The High Court rightly pointed out that considering the fact that the distance of the police station from the village in question was 15 kms and the uncontroverted evidence of PW 1 that no buses were available to reach the police station in the night, it could not be said that there was any delay in lodging the first information report at 9 a.m. on the following morning. On the contrary, in our opinion, the report was lodged at the earliest available opportunity. Equally justified was the High Court in observing that since different persons reacted differently in the same circumstances the other two reasons canvassed by the trial court to disbelieve PWs 1 and 2 were patently wrong. As regards the failure of the Investigation Officer to seize the torchlight, the trial court failed to consider that the remiss on his part could not be made a ground to disbelieve PWs 1 and 2, if they were otherwise trustworthy.

In the case of State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598:2001 SCC (Cri) 49, the Hon'ble Apex Court in para-12 of the said judgment has observed as under:

12. Circumstance 6 was held proved which, according to the trial court, strengthened the conclusion regarding the guilt of accused Hari Mohan. Regarding Circumstance 7, it was held that the investigating officer had noted the existence of fresh mud plastering at the place of occurrence, obviously with the object of destroying the evidence in the form of bloodstains and other marks which could prove the killing of the deceased by a gunshot. Though Circumstance 8 was held proved, yet it was not relied, on account of the negligence of the investigating officer as he had failed to get the Chemical Examiner's report about the origin and nature of the blood. In appeal the High Court, as noted earlier, has erroneously held that Roop Devi could have died by committing suicide. There was no evidence or any basis to return such finding by the High Court.

In the case of Chand Khan Vs. State of U.P., (1995) 5 SCC 448:1995 SCC (Cri) 915, Hon'ble Apex Court in para 23 has observed as follows:

23. There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of PW 1's house fits in with the evidence of the eyewitnesses and the nature of injuries sustained by Shah Alam. From the evidence of Sm. Naeema Parveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she, her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside. There Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharif Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of PW 5 stands substantially corroborated by the other three eyewitnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the FIR which was lodged by Keramat Ali (PW 1) on the basis of what he heard from PW 5. In the FIR, which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Parveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the FIR, the Investigation Officer (PW 16) ought to have taken steps to seize the knife even if PW 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the court to hold the investigation to be perfunctory or tainted affecting the entire trial, in case of the latter the court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eyewitnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the FIR it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in PW 1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.

In the case of Amar Singh Vs. Balwinder Singh, (2003) 2 SCC 518:2003 SCC (Cri) 641, the Hon'ble Apex Court in para-15 has observed as follows:

15.Coming to the last point regarding certain omissions in DDR, it has come in evidence that on the basis of the statement of PW 4 Amar Singh, which was recorded by PW 14 Sardara Singh, SI in the hospital, a formal FIR was recorded at the police station at 9.20 p.m. In accordance with Section 155 CrPC the contents of the FIR were also entered in DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar[(1999) 2 SCC 126 : 1999 SCC (Cri) 104] while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.

In the case of Gajjan Singh v. State of Punjab, (1999) 1 SCC 233: 1998 SCC (Cri) 1603, the Hon'ble Apex Court in paras-2 and 3 has observed as under:

2. Both the courts below have accepted the evidence of eyewitnesses PWs 5, 6 and 9 after careful scrutiny thereof. It was however submitted by the learned counsel for the appellants that as the eyewitnesses were interested witnesses and there were material inconsistencies between the evidence of PWs 5 and 6 on the one hand and PW 9 on the other hand, their evidence should not have been accepted. He also submitted that though the guns stated to have been used by the two appellants were seized by the police and forwarded to the ballistic expert for examination, no report of the ballistic expert was produced to show whether they were used or not. He also submitted that the circumstances that both the gun injuries on the person of the deceased were possible by one shot, that there were no pellet marks on the walls or other parts of the Haveli and no blood was found on the ground inside the Haveli create a doubt regarding the manner in which the incident had really happened.

3. One of the inconsistencies pointed out by the learned counsel is with respect to the nature of weapons which the two co-accused carried with them. PWs 5 and 6 have stated that they were carrying guns whereas PW 9 has stated that one of them was carrying a gun and the other was having a dang (a thick stick). The other inconsistency pointed out is regarding the part of the body on which the shot fired by Ratan Singh had caused injuries to the deceased. In fact, this is not an inconsistency at all. PW 5 has not stated on which side of the chest the injuries were caused. PWs 6 and 9 have stated that the shot had hit the deceased on the left side of his chest. These are the only inconsistencies in the evidence of the eyewitnesses. One more inconsistency pointed out by the learned counsel is between the evidence of PW 9 and the investigating officer. PW 9 has stated that he had seen one pellet in the mouth of the deceased. The investigating officer has denied to have seen any pellet in the mouth of the deceased. Blood had collected in the mouth of the deceased. It is quite possible that PW 9 mistook something in the mouth of the deceased as a pellet or the investigating officer missed to notice it. It is a minor inconsistency and can have no effect on the credibility of the eyewitnesses.

In the case of Raghuraj Singh and Ors. Vs State of U.P reported in 1996(20) ACR(R) 409 a Division Bench of this Court at Allahabad in paragraph no. 12 and 19 has held as under:-

12.the learned Counsel for the Appellants,

pointed out to the defects of the prosecution and investigation done in the case. He submitted that the blood-stained soil was not sent for opinion of the Chemical Analyst which admittedly was taken by the I.O. Similarly, the blood-stained knife said to have been left at the place of occurrence was recovered by the I.O. It was neither sent for opinion by the Chemical Examiner nor the knife was shown to the witness P.W. 4 Dr. Vijal Pal Singh who had conducted the post-mortem examination. The guns of Raghunath Singh and Raghu Raj Singh, accused persons, were not seized during the investigation nor the empty cartridges recovered at the place of incident was sent to the Ballistic Expert to ascertain that the empty cartridges recovered were fired from the gun of the accused Raghuraj Singh and Raghunath Singh. He also pointed out that pair of shoes of the accused person, as stated by the witness, was not proved to be of the present Appellants or Raghunath Singh, co-accused deceased. It was necessary for the prosecution to have proved that the shoes recovered at the place belong to some of the accused persons which could have fixed clinchingly that a particular accused person was present at the time when the incident took place. He also submitted that no application was moved by the prosecution to ask any of the accused persons to wear the shoe to show that they belong to him.

19. The learned Counsel for the Appellants submitted that the investigation in this case was defective. The points of defect in the investigation are narrated in the earlier part of the judgment itself. He submitted that on account of the non-seizure of the guns of the accused persons, said to have been used in the commission of the offence, not getting the opinion of the Ballistic Expert in respect to the cartridges found at the spot which could have been obtained from the Ballistic Expert after getting the opinion about the guns of the accused persons had it been seized. The learned Counsel further submitted that the blood-stained soil recovered from the place of occurrence was not sent to the Serologist for his opinion that it was the human blood. The failure of the prosecution to adduce evidence and investigate on the aforementioned points, in our opinion, does not constitute any ground for disbelieving the eye-witnesses who are not simply eye-witnesses but also injured witnesses. Had the prosecution examined the blood-stained soil and proved it to be stained with human blood by the Serologist and getting an opinion from the Ballistic Expert to show that the empty cartridges recovered at the place were used and fired with guns of the accused persons, had the gun of the accused Appellants seized and recovered. Had the prosecution investigated the case and obtained Ballistic Expert opinion and opinion of the Serologist that the incident did take place at the place as set up by the prosecution.If that evidence would have been procured and adduced in the case, that would have further strengthened the prosecution case. In the absence of those evidence, the prosecution case is proved by other injured witnesses and the evidence of the Doctor who conducted the postmortem examination and he proved the injuries of the injured witnesses. Their presence have been proved at the place of incident at the relevant time. The omission of non-investigation of the case on the lines suggested would not sufficient to discard the prosecution evidence and the witnesses.

In the case of Naurangi Vs. State of U.P., reported in 1996 CrLJ 81, a Division Bench of this Court at Allahabad in para 7,8 and 16 has held as under:

7. We have heard the learned counsel for the appellant and the learned Additional Govt. Advocate and in our opinion, there is no force in this appeal. The motive of the murder has been clearly established by the prosecution. The prosecution witnesses have stated that the accused had encroached upon a piece of land which was in the possession of the complainant. The appellant had dug a foundation and were, on the date of the incident, putting layers of bricks therein. It is further stated by the prosecution witnesses that, on being asked to desist from such encroachment, the appellant fired at Pati Ram and his nephew Maharaj Singh. The investigating Officer, who visited the site, found that foundation had been dug at the place. The layers of bricks had been put in and some bricks were also lying on the site. It appears from the statements of the prosecution witnesses that the appellant did not relish this interference by Maharaj Singh and after fetching the gun from the house, he fired at Pati Ram who was coming towards the site on hearing the shouts of Maharaj Singh and also hit Maharaj Singh who, by then, had managed to get his father's licensed gun and had come out in the open space.

8. So as far the actual incident is concerned the prosecution has examined four eye witnesses, namely, PW 1 Mani Ram, PW 5 Maharaj Singh, PW 6 Chob Singh and PW 7 Mohar Singh. All these witnesses made substantially consistent in regard to the incident and place of occurrence. According to PW 1 Mani Ram he was working at the 'Rabat' along with his brother Pati Ram deceased, on 14-10-1979 at about 12 noon when he heard the shouts of Maharaj Singh and other children. On hearing these shouts he along with Pati Ram rushed to the place from where the shouts were coming. When he reached the field of Madho Singh the appellant came with a gun and fired from the place where the Abadi of Suraj Pal, Chak road and field of Madho Singh meet and that Naurangi Lal fired twice hitting Pati Ram as a result of which he fell down. This statement is corroborated by PW 6 Chob Singh and PW 7 Mohar Singh. The Investigating Officer also found blood stains at that place where Pati Ram fell down. There appears to be no sufficient reason for doubting the statements made by these witnesses.

16 . We proceed to do so. We have already indicated above that the eye witnesses namely PW 1 Mani Ram PW 6 Chob Singh and PW 7 Mohar Singh have made substantially consistent statement in regard to the incident and place of occurrence. PW 5, Maharaj Singh is not an eye witness in respect of deceased Patiram and in this regard he has merely stated that he saw his dead body lying in the open field. The incident took place in an open field in broad day light at about 12 noon. The Investigating Officer found blood at the place where Patiram was shot. Merely because the blood stained soil was not sent for chemical examination, the prosecution version cannot be said to be doubtful (See Ramesh Chandra v. State, : 1992CriLJ3584 . The medical evidence, namely, the post mortem report of deceased Patiram and injury report of Maharaj Singh supports the prosecution version.

In the case of Surendra Paswan Vs. State of Jharkhand, reported in 2004(48) ACC 279, 290 SC, the Hon'ble Apex Court in para 4, 8 and 11 has observed as under:

4. In response, learned counsel for the State submitted, that three eye-witnesses specifically deposed regarding the place of occurrence, the manner of assault and gave detailed description of the entire scenario. The trial Court and the High Court have analysed their evidence and found to be credible, cogent and trustworthy. That being the position, there is no scope for interference in this appeal. Further, there was a confusion between bullet and pellet which has been clarified by the investigating officer. Merely because the bullet which was extracted by the doctor was not sent for chemical examination, it would not be a factor which would outweigh the testimonial worth of the eye-witnesses. The injuries have not been established by the accused to have been sustained in course of the incident as per the prosecution version. There was not even any suggestion about the defence version to any of the prosecution witnesses and for the first time while giving statement under Section 313 Cr.P.C. the plea has been taken.

8. So far as the non seizure of blood from the cot is concerned, the investigating officer has stated that he found blood stained soil at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye-witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over to the soil.

11. So far as the confusion relating to bullet and pellet is concerned, the same has been clarified by the doctor's evidence. In his examination the doctor (PW-3) has categorically stated that there was only one injury on the body of the deceased and no other injury was found anywhere on the person of the deceased. Therefore, the question of the deceased having received any injury by a pellet stated to have been recovered by the investigating officer is not established. The investigating officer has clarified that the bullet embodied was given to the police officials by the doctor which was initially not produced as it was in the Malkhana but subsequently the witness was recalled and it was produced in Court.

118. Now we have to consider the conviction and sentence of the appellants in the light of the exposition of law relied upon by learned Amicus Curiae, concerning it that conviction would be for culpable homicide amounting to murder or culpable homicide not amounting to murder.

119. Learned amicus curiae relying on the following exposition of law and argued that present case is squarely covered under Section 304 IPC:-

120. The Division Bench of this Court in Criminal Appeal No. 154 of 2012 (Dharmanand and others Vs. State of U.P.) decided on 18.03.2016 has quoted the following exposition of law propounded by Hon'ble Supreme Court, which are as follows:-

In the case of Murlidhar Shivram Patekar v. State of Maharashtra, reported in (2015) 1 SCC 694 Hon'ble the Apex Court has held as under:-

30. Further, in Satish Narayan Sawant v. State of Goa [(2009) 17 SCC 724 , this Court has held as under: (SCC pp. 739 & 743, paras 36 & 41)

"36. ... Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

41. Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened on the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death."

31.Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the accused-appellants had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 IPC.

In the case of Badal Murmu v. State of W.B., reported in (2014) 3 SCC 366 Hon'ble the Apex Court has held in paragraph nos. 14 and 15 as under:-

14. In Sarman v. State of M.P. [Sarman v. State of M.P., 1993 Supp (2) SCC 356 : 1993 SCC (Cri) 554] , there were seventeen injuries on the deceased. The appellants therein were armed with lathis. They were charged for the offences punishable under Sections 147 and 302 IPC. Some injuries were described as incised wounds. Injury 15 had resulted in a depressed fracture of parietal bone. Like the present case, the doctor in a general way stated that the cause of death was "multiple injuries". He specifically stated that Injury 15 individually was sufficient to cause death of the deceased. It must be noted that no such assertion is made by the doctor in the instant case. The prosecution case inSarman case [Sarman v. State of M.P., 1993 Supp (2) SCC 356 : 1993 SCC (Cri) 554] , in general, was that all of them were found with lathis. Nobody had stated which of them had caused Injury 15 which unfortunately resulted in the death of the deceased. This Court inSarman case [Sarman v. State of M.P., 1993 Supp (2) SCC 356 : 1993 SCC (Cri) 554] observed that in these circumstances the question that arose was whether all the accused were responsible for the death of the deceased. This Court noted that if anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act but, unfortunately, no witness had come forward to say which of the accused had caused which injury. This Court noted that in those circumstances, it was difficult to award punishment under Section 302 read with Section 149 IPC. This Court noticed that although the post-mortem report stated that all the injuries might have caused the death of the deceased inasmuch as the accused inflicted injuries with lathis and particularly when they were simple, and on non-vital parts, it cannot be said that their object was to kill the deceased. They may merely have knowledge that the blows given were likely to cause death. This Court, in those circumstances, set aside the conviction of the appellants for the offences punishable under Section 302 read with Section 149 IPC and instead convicted them for the offence punishable under Section 304 Part II read with Section 149 IPC.

15. As earlier noted by us, in this case none of the eyewitnesses have given specific role to any of the appellants. They have not stated which appellants gave which blow and on which part of the deceased's body. They have not stated which injury was caused by which accused. The doctor has not stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haematoma under the scalp, but nobody has said that any particular appellant caused these injuries. It bears repetition to state that though sharp-cutting weapons i.e. tangies were available, the appellants did not use them. In the peculiar facts of this case, therefore, it is not possible to hold that the appellants shared the common object to murder the deceased and in prosecution of that common object they caused his death. It would not be possible to sustain their conviction for the offence punishable under Section 302 read with Section 149 IPC. It would be just and proper to resort to Section 304 Part II IPC and treat the sentence already undergone by them as sentence for the said offence.

In the case of State of Rajasthan v. Daud Khan, reported in (2016) 1 SCC (Cri) 793 Hon'ble the Apex Court has held as under:-

21. The High Court, however, felt that a case of murder punishable under Section 302 IPC was not made out since Daud Khan had fired only one bullet and did not take undue advantage of the situation and therefore only a case of intention to cause bodily harm that was likely to cause death was made out, punishable under the first part of Section 304 IPC. Accordingly, Daud Khan was convicted of that offence and sentenced to 7 (seven) years' rigorous imprisonment with fine.

22. Feeling aggrieved, Daud Khan is before us in appeal.

Delay in lodging the FIR: Submissions and discussion

23. It was submitted that the FIR lodged by PW 1 Gajendra Singh was antedated. Actually, the FIR was lodged on 20-6-2004 but was antedated to 19-6-2004. It was submitted that this is apparent from the overwriting on the FIR. The insinuation was that it was first decided to "fix" the accused and thereafter the FIR was lodged to that effect. We see no substance in this contention. We have seen the FIR in original and find nothing to suggest any semblance of any overwriting. We may also note that no such submission was made before the trial court or the High Court.

In the case of Lakshman Prasad v. State of Bihar, reported in 1981 SCC (Cri) 642, Hon'ble the Apex Court has held as under:-

3. The central evidence against the appellant consisted of the testimony of PWs 1 and 2 who were the servants of complainant PW 4 Baijnath Prasad. It appears from the evidence that Baijnath Prasad was a rich businessman of the locality and the accused-appellant Lakshman Prasad was his next door neighbour having a double storey house. Both the courts below have accepted the prosecution case that a dacoity took place in the house of Baijnath Prasad in the course of which cash and other articles were stolen away. In the instant case, counsel for the appellant has not challenged this finding of the courts below. We are also satisfied that a dacoity undoubtedly took place in the house of Baijnath Prasad. The only question that falls for consideration is whether or not the appellant participated in the crime. PWs 1, 2 and 4 have supported the prosecution case that the appellant clearly participated in the dacoity and was, in fact, the leader of the dacoits. After going through their evidence, we do find that there is some amount of consistency in their evidence but mere congruity or consistency are not the sole test of truth. Sometimes even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. There are many inherent improbabilities in the prosecution case so far as the participation of appellant is concerned. In the first place, admittedly the appellant was a respectable man in the sense that he was possessed of sufficient means and was a well known homeopath doctor and also the neighbour of the complainant. In this view of the matter, it is difficult to believe that he would commit dacoity in the house of his own neighbour and that too in the early hours of the evening, so that he may be caught any moment and take the risk of a conviction under Section 395 of the Indian Penal Code. Secondly, the evidence of the complainant PW 4 clearly shows that the dacoits had no doubt concealed their identity but they did it in such a way that their faces were visible. Indeed, if the appellant had participated in the dacoity and taken the precaution of concealing his identity, then he would have seen to it that his face was fully covered so that identification by the complainant or the witnesses would become impossible. If he was a dare-devil, then he would not have concealed his identity at all. Thirdly, FIR having been lodged the same evening the police visited the house of the appellant next morning and found him there. If the appellant had really participated in the dacoity, he would have at least made himself scarce. The house of the accused was also searched and nothing incriminating was at all found. Finally, there was the important circumstance that in view of a dispute between complainant Baijnath Prasad and the appellant, there was a clear possibility of the appellant having been falsely implicated due to enmity. The complainant himself admits that there is a boundary wall around the house of the appellant and there is a road which runs to the east of his house and the mill of the complainant is situated to the west of the house. There is evidence of DW 2 that there has been some dispute between Baijnath Prasad and accused Lakshman Prasad two or three years before the occurrence of dacoity in respect of a passage near the house of accused Lakshman Prasad through which he used to go to his mill. The evidence of DW 2 does support what the complainant has himself admitted. The gravest provocation which the complainant must have felt was the fact that Lakshman Prasad bought a piece of land near his house from Kishori Lall, the nephew of Baijnath Prasad. This is proved by Ex. Kha and the evidence of DW 4. The High Court also observed that the sale deed executed by the nephew of the complainant in favour of the appellant was executed only a month before this occurrence. This therefore furnishes an immediate motive for the false implication of the appellant. Another important circumstance which seems to have been overlooked by the courts below is that PW 4 has clearly admitted in his evidence at p. 44 of the paper-book that immediately after the occurrence, a number of people near the mosque assembled, of whom he recognised Suba Raut and Moti Raut, but they never came to his help. The witness also says that when he came from the west, he saw 40 to 50 persons at a little distance, including Ganesh Raut, Achhelal, Mathura Ram and Rameshwar. Obviously, if an occurrence of dacoity had taken place in the early hours of the evening, the near neighbours must have assembled and yet none of these neighbours have been examined to support the complainant's version that the appellant had participated in the occurrence. It seems to us that the reason why these persons did not choose to support the complainant was that perhaps the appellant had been falsely implicated and hence the persons who had assembled may not have relished the idea of supporting the complainant if he had gone to the extent of falsely implicating the appellant in the dacoity. These intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in our minds regarding the complicity of the appellant in the dacoity. It is well-settled that while witnesses may lie, circumstances do not.

In the case of Vadivel Padayachi , reported in 1972 Cri. L.J. 1641 (V 78 C 431) the Madras High Court has held as under:

11. Grounds Nos. 2 and 3: Once the accused is exonerated of the charge of connivance at the illicit intimacy the occurrence can be scrutinised in its proper psychological context. In spite of the warnings issued by the accused. Pichai Mohammed came to his house in the evening before the occurrence. The evidence shows that the accused resentfully stood at a distance from Pichai Mohammed when he came into the backyard of his house and that the accused went away to a neighbour's house when Pichai Mohammed was having a face-shave on his pial. The confession shows that the accused was so much upset by the visit of Pichai Mohammed that he went thrice to the arrack shop that night and drank arrack. Evidently he tried to drown his sorrow in liquor. When he came back from the arrack shop at 9 P.M. his wife served him food, spread out his bed in the corridor outside the living room and went into the room to sleep with her paramour. According to the confession the accused laid himself down on the corridor and was weening for a long time in the night till he slept away. The knowledge that his wife and her paramour had gone into the room, leaving him to be outside on the corridor was provocative enough, and if immediately after they went inside the room the accused had hacked them with the axe he would certainly be entitled to the benefit of the Exception 1 to Section 300. I.P.C. The circumstance that he did not do so showed that he exercised commendable self-restraint. If after seeing the lovers go into the room, the accused had kept quiet till the next morning, and without receiving any further provocation, had murdered both of them, it might he said that his temper had enough time to cool and he had sufficient opportunity to deliberate and ponder, and therefore, he committed the offence deliberately and not in a moment of anger whilst deprived of the power of self-control. But that, is not what happened in his case. When the accused woke up from his slumber at 2 A.M. he received a fresh provocation, which would have shocked any reasonable man belonging to the same social stratum as the accused. He saw with his own eves, his wife, of whose person he must have desired to be in exclusive possession lying almost completely naked with her bared breasts and her thighs exposed side by side with her Muslim paramour, whose private parts were visible and whose caressing right arm lying softly upon the left arm of Anjalai. The photographs taken by the investigating officer from two different angles give a vivid presentation of the scene with which the accused was confronted at 2 A.M. a scene which is sufficient to disturb the equanimity of any husband. The moment he saw this preposterous sight, the accused acted suddenly on the impulse of the moment. He did not have to go anywhere to search for a weapon.

In the case of Hansa Singh v. State of Punjab, reported in (1976) Supreme Court Cases (Cri) 589 Hon'ble the Apex Court has held as under:-

In this appeal by special leave the appellant has been convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life for having committed the murder of one Gurbachan Singh. According to the prosecution, the accused Hansa Singh had suspected the deceased Gurbachan Singh of committing sodomy on his son Haria, which furnished the motive for the murder of Gurbachan Singh. The story of the prosecution is that on October 30, 1969 at about 6.00 p.m. when Gurbachan Singh was going to some village and he reached near the house of Gurjit Singh he was surrounded by the accused, some of whom caught hold of him and the appellant Hansa Singh is said to have assaulted him on various parts of the body with his kirpan. FIR was lodged at about 9.00 p.m. at police station Nathana, being 7 miles from the village where the occurrence took place. The police visited the spot and after usual investigation, submitted chargesheet against the accused. The defence was that as the deceased was committing sodomy on Haria, son of the appellant, in his presence, he was greatly annoyed at this act and having lost his power of self-control, he assaulted the deceased. No evidence has been given by the defence in support of his plea. But it seems to us that from the circumstances appearing in the case the defence taken by the appellant is true. It is true that both the High Court and the Sessions Judge have concurrently found that the prosecution case as alleged, has been proved beyond reasonable doubt. Normally this Court would not interfere with these concurrent findings of facts. There are, however, certain striking facts in the case which point to the conclusion that the murder took place near the door of Gurjit Singh and this could have only been done if the story suggested by the appellant Hansa Singh is true. One of the special features of this case is that out of the eyewitnesses, one of them Bela Singh who accompanied the informant to the police station, was examined after a period of 7-8 months and had narrated the occurrence for the first time before the committing Magistrate. He was not examined by the police at all and no explanation for this has been given. As regards PW Mal Singh and Sita Ram, one extraordinary feature is that having seen the occurrence they did not narrate the same to anybody or even to the persons who had gathered at the spot. Both Sita Ram and Mal Singh admit this fact and the only reason for this silence appears to us to be that the witnesses themselves found that the accused had committed the assault in the circumstances related by him, which would undoubtedly mitigate his offence and would also alienate the sympathies of the villagers. Another important circumstance that seeks to support the defence taken by the appellant is that the body was actually found near the door of Gurjit Singh where according to the appellant the deceased was committing sodomy on his son Haria. In order to get rid of this bald fact the prosecution appears to have invented a story that the occurrence took place at some distance from the house of Gurjit Singh, who after assaulting the deceased, bodily lifted the deceased and placed his deadbody near the house of Gurjit Singh. The High Court has acquitted all the other accused. And we find it difficult to believe that after having assaulted the deceased, Gurjit Singh alone could have lifted the body and placed it near the door of Gurjit Singh. Gurjit Singh being the own brother of Hansa Singh, there could have been no motive in taking the body to his house. In these circumstances, therefore, the statement of the accused that the deceased Gurbachan Singh was committing sodomy on Haria in the house when the appellant arrived at the scene and assaulted the deceased, appears to be true. In view of these circumstances, therefore, the prosecution has undoubtedly proved that it was the appellant alone who has assaulted the deceased and this is proved by PW Mal Singh and Sita Ram also. The question remains as to what offence the appellant has committed. The learned Counsel for the appellant has taken us through the evidence and shown us a few discrepancies here and there. The evidence appears to be consistent so far as the assault by the appellant on the deceased is concerned. We, however, feel that the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assault the deceased. For these reasons we are satisfied that the case of the appellant falls clearly within the purview of Section 304 Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased. We understand that the appellant has been in jail since 1959 and according to the Code of Criminal Procedure, 1973 the period of detention of the accused has to be set off against any sentence which is imposed on the appellant. The position, therefore, is that accused has been in jail for about 7 years. We, therefore, alter the conviction of the accused from one under Section 302 to that under Section 304 Part II of the IPC and we reduce the sentence from life imprisonment to the period already undergone (which is almost 7 years). The appeal is allowed with the modifications indicated above.

In Jail Criminal Appeal No. 60 of 1984 in the case of Markus Bilung Vs. State of Orissa, the Orissa High Court in paragraph no. 7 & 9 has held as under:-

"7. After considering the evidence of PW-2, the widowed mother of the appellant and taking into consideration the totality of the facts and circumstances of the case, we are left with little doubt that the case clearly comes within exception I of Section 300 IPC. I, PW-2 was a widow aged about 60 years. Secondly, the appellant saw in his own eyes that on the Sunday afternoon either PW-2 and the deceased were in a compromising position in broad-day light or the latter was attempting to make love to the former. Thirdly, at his sudden appearance inside the house, the deceased left in a hurry. So, his intentions were not at all clear, more so because he was himself a widower and probably sex hungry. And fourthly, when for the second time he saw the deceased surreptitiously entering into house while PW-2 was at home, he must have entertain the belief that the deceased would repeat the performance of the previous day. This was the sudden provocation and so far a young Adiwasi like him it was not at all unusual to loose the power of self control so as to attack the deceased by means of a knife. The provocation was grave indeed because to every son the mother is sacred. Violation of the mother on the face of a son could intolerable, so much so that in such circumstances, it is not unusual to commit murders. We are, therefore, inclined to give the appellant the benefit of exception I of Section 300 and hold that he committed an offence under Section 304, Part I, and one under section 302 IPC.

9. For the reasons stated above, the appeal is allowed in part. Conviction of the appellant is altered from Section 302 to Section 304, Part I, IPC and the sentence of rigorous imprisonment is reduced to six years.

121. The following expositions of law are also relevant on the point of conversion of punishment under Section 302 I.P.C. for offence punishable under Section 304 Part (I) or (II) of the I.P.C.

Hon'ble Supreme Court in the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 has held as under:

2. In Rompicheria village, there were factions belonging to three major communities viz. Reddys, Kammas and Bhatrajus. Rayarapu (Respondent 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress party, while Kammas were supporters of the Swatantra party. There was bad blood between the two factions which were proceeded against under Section 107 CrPC. In the panchayat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their partymen. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wall in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the police station on the following morning so that a compromise might be effected.

3. Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under Sections 324, 323 and 325 of the Penal Code was pending before a magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.

4. On the morning of July 23, 1968, at about 6.30 a.m., PWs 1 and 2 and the deceased boarded bus No. APZ 2607 at Rompicheria for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal crossroads, at about 7.30 a.m., the deceased and his companions alighted for going to the police station. The five accused also got down. The deceased and PW 1 went towards a choultry run by PW 4, while PW 2 went to the roadside to ease himself. Al and A2 went towards the Coffee Hotel, situate near the choultry. From there, they picked up heavy sticks and went after the deceased into the choultry. On seeing the accused, PW 1 ran away towards a hut nearby. The deceased stood up. He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, Al and A2 indiscriminately pounded the legs and arms of the deceased. One of the bystanders, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious. The accused then threw their sticks at the spot, boarded another vehicle, and went away. The occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a tempo-car. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:

"1.Dislocation of distal end of proximal phalan of left middle finger.

2.Fracture of right radius in its middle.

3.Dislocation of lower end of right ulna.

4.Fracture of lower end of right femur.

5.Fracture of medial malleolus of right tibia.

6.Fracture of lower 1/3 of right fibula.

7.Dislocation of lower end of left ulna.

8.Fracture of upper end of left tibia.

9.Fracture of right patella."

5. Finding the condition of the injured serious, the doctor sent information to the Judicial Magistrate for getting his dying declaration recorded. On Dr K. Reddy's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr Sastri. His dying declaration, Ext. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.

6. The autopsy was conducted by Dr P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the doctor, was shock and haemorrhage resulting from multiple injuries.

7. The trial Judge convicted Al and A2 under Section 302 as well as under Section 302 read with Section 34 of the Penal Code and sentenced each of them to imprisonment for life.

8. On appeal by the convicts, the High Court altered their conviction to one under Section 304 Part II of the Penal Code and reduced their sentence to five years' rigorous imprisonment, each.

12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. 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 minutae 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 Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.

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 if the act by which the death is caused is done --

INTENTION

(a)

With the intention of causing death; or

With the intention of causing death; or

(b)

With the intention of causing such bodily injury as is likely to cause death; or

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; or

With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c)

With the knowledge that the act is likely to cause death

With the knowledge that the act is so imminently 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.

15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):

"The prosecution must prove the following facts before it can bring a case under Section 300, ''thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "murder". Illustration (c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

21........ a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code.

22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.

34. ......the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders -- all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established.

35......According to the medical evidence the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death and the cause of the death was shock and hemorrhage due to the multiple injuries. Hence the second element is also established....

38.....here, a direct casual connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus ectc. supervened. There was no doubt whatever thet the beating was premeditated and calculated.

39. .....The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of clause thirdly of Section 300. The expression "bodily injury" in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300....

30. Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr Sarojini, in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones "are not ordinarily dangerous"; therefore, the accused could not have intended to cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.

31. It will be worthwhile to extract that quotation from Modi, as a reference to the same was made by Mr Subba Rao before us, also. According to Modi "Fractures are not ordinarily dangerous unless they are compound, when death may occur from loss of blood, if a big vessel is wounded by the split end of a fractured bone".

32. It may be noted, in the first place, that this opinion of the learned Author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving hemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial hemorrhage. In the face of this finding, Modi's opinion far from advancing the contention of the defence, discounts it.

29.......facts, that the High Court was wrong in doubting the medical opinion thet death was caused by shock and also hemorrhage.....

40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34, to that under Section 304, Part II of the of the Penal Code. Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him.

Hon'ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 has held as under:

5. As aforesaid, on the conclusion of the trial and after appreciating the oral and documentary evidence, the trial court returned a finding of guilt against the appellant and convicted and sentenced him under Section 302 IPC. As far as the event/occurrence is concerned, that stands proved and to that extent judgments of the courts below are without any infirmity. As mentioned above, the only question is as to whether it was a case for conviction under Section 302 IPC or Section 304 IPC.

6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.

7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v.State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

9. This appeal is, thus, partly allowed. While maintaining the culpability of the appellant, his conviction is altered to Section 304 Part II IPC instead of Section 302 IPC. The appellant has already served 9 years and 3 months of imprisonment approximately. In the facts of this case, we are of the opinion that the sentence of the appellant be reduced to the period already undergone. Ordered accordingly.

Hon'ble Supreme Court in the following paragraphs in the case of Gurwinder Singh v. State of Punjab, (2018) 16 SCC 525 has held as follows:

11. It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors--it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:

(i) the injuries were sustained by the accused in the same transaction; and

(ii) the injuries sustained by the accused are serious in nature.

12. This Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Kubersing Chamansing [Takhaji Hiraji v.Kubersing Chamansing, (2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and held as under: (SCC p. 154, para 17)

"17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singhv. State of Bihar [Rajender Singh v. State of Bihar, (2000) 4 SCC 298 : 2000 SCC (Cri) 796] , Ram Sunder Yadav v. State of Bihar [Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 : 1998 SCC (Cri) 1630] and Vijayee Singh v. State of U.P. [Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : 1990 SCC (Cri) 378] , all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case." (emphasis supplied)

13. In the present case, the incident had taken place near the tubewell where both the parties assembled to settle the land dispute. When there was exchange of words, there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked, the accused party also sustained injuries. Apart from the stray statement made by the complainant Sukhwinder Singh in the FIR, the prosecution has not offered any explanation for the injuries sustained by the accused. Since both the accused sustained injuries in the incident, non-explanation of injuries sustained by the accused assumes significance. Having regard to the injuries sustained by the accused, the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence.

16. For bringing in operation of "Exception 4" to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

17. Considering the scope of "Exception 4" to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa [Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 : 2004 SCC (Cri) Supp 98] , it was held as under: (SCC p. 397, para 8)

"8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."

21. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed. Appellant Gurwinder Singh is said to have undergone imprisonment for more than ten years, he is ordered to be released forthwith unless his presence is required in any other case. Appellant Satnam Singh is directed to surrender to serve the remaining period of sentence, failing which, he shall be taken into custody.

Hon'ble Supreme Court in the aforesaid decisions Lavghanbhai Devjibhai Vasava Vs, State of Gujarat (supra) found that incident of this case law took place in a spur of moment, therefore, conviction of the appellant was altered to Section 304 Part II of I.P.C. instead of Section 302 I.P.C. The appellant had already served 9 year and 3 months of imprisonment. Likewise, in the case of Gurwinder Singh alias Sonu and Others vs State of Punjab (supra), Hon'ble Supreme Court found that the incident had taken place near the tubewell where both the parties assembled to settle the land dispute, when there was exchange of words there was a scuffle between both the parties. In the same transaction where Harbhajan Singh was attacked the accused parties also sustained injuries. The prosecution had not offered any explanation for the injuries sustained by the accused. Therefore, it was found that the trial court and the High Court ought to have made an effort in searching out the genesis of the occurrence. Hon'ble Supreme Court, in this circumstances, has altered and modified conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. as conviction under Section 304 Part I of I.P.C. On the peculiar facts and circumstances of the case, but Hon'ble Supreme Court has laid down the principle on which the courts shall analysis the peculiar facts and circumstances and would decide as to whether offence punishable under section 302 I.P.C. is made out or for the offence under section 304 I.P.C. is made out.

Hon'ble Supreme Court in the following paragraphs in the case of State of Uttar Pradesh Vs. Faquirey(Criminal Appeal No. 1842 of 2012 decided on 11.02.2019) has held as under:

1. The Respondent was convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence under Section 304 Part I, IPC and sentenced the Respondent to 10 years rigorous imprisonment. Aggrieved thereby, the State of Uttar Pradesh is in appeal before us.

4. In the appeal filed by the Respondent, against the conviction and sentence, there was no contest on merits. The only submission made on behalf of the Respondent was that he could not have been convicted under Section 302 IPC. According to the Appellant, his conviction should have been under Section 304 IPC as the case is covered under Exception I to Section 300 IPC. The High Court observed that the intervention of the deceased in the quarrel between the two factions led to the Respondent losing his self control. The High Court was of the opinion that this resulted in grave and sudden provocation. Observing so, the High Court converted the conviction of the Respondent from Section 302 IPC to Section 304 Part I IPC. The Respondent was sentenced to suffer rigorous imprisonment for 10 years.

5. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the High Court committed an error in converting the conviction of the Respondent from under Section 302 IPC to Section 304 Part I, IPC. He further submitted that the case of the defence that Exception I to Section 300 IPC is applicable is not correct. The Respondent was enraged at the sight of the deceased in view of the doubt he had in his mind about the deceased having an evil eye on his wife. The learned Senior Counsel relied upon the First Proviso to Exception I of Section 300 IPC to submit that the accused is not entitled to claim that the crime was committed due to grave and sudden provocation. Mr. D. K. Garg, learned counsel appearing for the Respondent submitted that the judgment of the High Court does not deserve any interference as the High Court was right in recording a finding that the Respondent lost his self control due to grave and sudden provocation which resulted in his shooting the deceased. He further submitted that the incident occurred almost 18 years ago and the Respondent has undergone the sentence of 10 years which is an additional reason for us not to reverse the judgment of the High Court.

9. For the aforementioned reasons, the judgment of the High Court is set aside and the judgment of the Trial Court convicting the Respondent under Section 302 IPC and sentencing him to life imprisonment is restored. The Respondent is directed to surrender within a period of four weeks to serve the remaining sentence.

122. On perusal of written report (Ext Ka-1), it reveal that this fact is specifically mentioned by the complainant PW-1 that he asked Rama Pasi why they were assaulting his son Lala, then Rama Pasi apprised him that the deceased Lala was lying on the cot of his wife (Smt. Maika-appellant). Therefore, they assaulted the appellant to eliminate him. The detailed defence version was put forth by appellant Rama Pasi and Smt. Maika during course of investigation conducted by PW-6, even then he had not conducted any investigation on the basis of statement of these appellants recorded by him under Section 161 Cr.P.C..

123. The prosecution has not proved any other reason due to which the appellants assaulted the deceased Lala on the date and time of the incident. Smt. Maika and appellant Rama Pasi have apprised the Investigating Officer during investigation itself that they assaulted the appellant, when he was found lying on the cot of Smt. Maika-appellant. The deceased tried to escape and he was caught hold by the appellants on the place of occurrence at 11.30-12.00 hours at night and at this point of time he was wearing his clothes, when he had laid on the cot of Smt. Maika. During the course of incident, his clothes were put off by the appellants, which were found on the place of occurrence.

124. PW-1 complainant Maiku has stated in his examination-in-chief itself that he asked appellant Rama Pasi why they were assaulting his son Lala, then he was apprised by him that the deceased was found lying on the cot of his wife Smt. Maika. Therefore, PW-6 should have investigated the facts stated by Smt Maika and Rama Pasi. He has also not mentioned any reason in case diary why he discarded defence version. Due to poor conduct of proceedings of trial by learned defence counsel, these statements of appellant Rama Pasi and Smt. Maika could not be confronted during the course of examination of PW-6, even then this Court may consider the over all facts and circumstances, in which, the appellants assaulted the deceased Lala on the date of incident.

125. Learned A.G.A. has pointed out that in inquest report of the deceased Lala it is mentioned that blood stained pant was lying near dead body of the deceased. Therefore, the defence version put forth by appellant Rama Pasi and Smt. Maika was not true and it was created one and for this purpose only clothes of the deceased were put off by the appellants to strengthen their defence version, which was not proved during the course of trial.

126. On perusal of the recovery memo (Ext Ka-12), which is proved by PW-6, the Investigating Officer, it reveal that pant of the deceased was having blood stains on the lower part of pant. Therefore, it may be possible that appellants assaulted first on both legs of the deceased and when he tried to escape from the cot of Smt. Maika, he was caught hold in front of their house and then all the appellants again assaulted him and put off clothes of the deceased Lala at the place of occurrence. Therefore, in these circumstances, the naked dead body of the Lala was found on the place of occurrence and his clothes i.e. pant and shirt were lying near his dead body.

127. It is also noticeable that the prosecution has not proved the enmity aspect disclosed by Smt. Kaushalya by adducing substantive evidence.

128. Therefore, we found on the basis of material available on record and nature of evidence adduced by PW-1 and PW-2 and other witnesses that the appellants assaulted the deceased due to the reason mentioned in written report (Ext Ka-1) and stated by PW-1 as appellant Rama Pasi apprised him that the deceased was found lying on cot of the appellant Smt. Maika. Learned defence counsel has not suggested defence version in cross-examination of PW-1 and PW-2. Therefore, omission committed by learned defence counsel regarding fact that he did not suggest the fact of grave and sudden provocation given by the deceased to the appellants and assault made by the appellants in heat of passion and spur of the moments, cannot prevent this Court to consider the entire facts and circumstances, in which, this crime was committed by the appellants.

129. It is also pertinent to note that injury report of appellant Smt. Maika relied upon by learned Amicus Curiae does not extend any benefit to her because her injury report which discloses contusion on her back of her chest, has not been proved. The appellant Maika has not proved this fact also that in which circumstances she sustained this injury. On the other hand she might have sustained the aforesaid injury, when she assaulted and had caught hold the deceased during course of the incident.

130. PW-5 Constable Ajay Kumar Singh has proved check F.I.R. (Ext Ka-2) and G.D. of registration of crime (Ext Ka-30 and no material contradiction was elicited in his cross-examination. Therefore, PW-5 is only a formal witness.

131. The learned Amicus Curiae has also pointed out that no independent witness was examined by the prosecution during the course of trial. Therefore, the appellants cannot be convicted on the basis of evidence of PW-1 Maiku, PW-2 Smt. Kaushalya,who are the parents of the deceased Lala and they are interested witnesses being relatives of the deceased.

132. It is pertinent to note that PW-3 Baijnath has turned hostile, who was nephew of the complainant. Therefore, what to say to the independent witnesses. It is also relevant to mention here that the prosecution was compelled to discharge witnesses Jagan Pasi, Shyam Pasi, Kishori Lal, because they were won over by the appellants. In these circumstances there is no substance in the argument of learned Amicus Curiae that any independent witness was not produced by the prosecution during the course of trial.

In the case of S.L. Goswami (Dr) v. State of M.P., reported in 1972 SCC (Cri) 258 Hon'ble the Apex Court has held as under:-

6. It may, however, be pointed out that in determining this question the Special Judge as well as the High Court seem to have laid greater emphasis on the fact that the accused had not proved that he had purchased the apparatus as contended by him. While no doubt the question whether the accused purchased the apparatus in Bombay with the money he got under the draft issued by the I.C.M.R. in favour of Messrs. Goverdhandas may have to be established by the accused, he can take full advantage of the circumstances appearing in the prosecution case itself to probabilise his plea that he did. The High Court posed the question for determination as follows:

"Thus, the short question that fell for determination by the Special Judge was whether the amount received back by the appellant from Messrs. Goverdhandas Desai of Bombay was utilised or not by him in purchasing the apparatus as stated by him and sought to be proved by him, burden of which fact was on him, through his defence witnesses."

This approach both of the Special Judge as well as the High Court is not altogether a correct one. In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused and the evidence on his behalf probabilises the plea, he will be entitled to the benefit of reasonable doubt.

Following expositions of law are relevant regarding duty of Judge while appreciating the evidence of witnesses:

In the decision State of U.P vs. M.K Anthony (supra) Hon'ble Supreme Court has observed as follows:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

In the decision Harijana Thirupala v. Public Prosecutor, High Court of A.P-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

In the decision Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

In the decision Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

In the decision Inder Singh v. State (Delhi Admn.), (1978) 4 SCC 161 , Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

In the case of State of U.P. v. Anil Singh-1988 Supp SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

In the case of State of U.P v. Paras Nath Singh reported in 1973 Cr.L.J 850 held that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court it is not probable to involve the accused on false ground.

Further in view of Sandeep v. State of Haryana reported in (2001) 9 SCC 41 : AIR 2001 SC 1103 it was held that where the witnesses were known, both the victim and the accused, there evidence would be material and could not be criticized on the ground that he was an interested witness.

In case of Ashok KumarChaudhary v. State of Bihar - 2008 (61) ACC 972 (SC) it was held that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined.

Exposition of Law regarding solitary witnesses as under:-

In the case of Alagupandi v. State of T.N., (2012) 10 SCC 451 : Hon'ble Apex Court in paragraph nos. 22, 23 and 36 has held as under:-

22.In Govindarajuv.State [(2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533] this Court held as under: (SCC pp. 739-40, paras 23-27)

"23. Now, we come to the second submission raised on behalf of the appellant that the material witness has not been examined and the reliance cannot be placed upon the sole testimony of the police witness (eyewitness).

24. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand [(2003) 2 SCC 401 : 2003 SCC (Cri) 544] (SCC p. 405, para 10), this Court had classified the oral testimony of the witnesses into three categories:

(a) wholly reliable;

(b) wholly unreliable; and

(c) neither wholly reliable nor wholly unreliable.

In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.

25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.

26. Reference in this regard can be made to Joseph v. State of Kerala[(2003) 1 SCC 465 : 2003 SCC (Cri) 356] and Tika Ram v. State of M.P.[(2007) 15 SCC 760 : (2010) 4 SCC (Cri) 667] Even in Jhapsa Kabari v. State of Bihar[(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court took the view that if the presence of a witness is doubtful, it becomes a case of conviction based on the testimony of a solitary witness. There is, however, no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy.

27. In Jhapsa Kabari [(2001) 10 SCC 94 : 2002 SCC (Cri) 1071] , this Court noted the fact that simply because one of the witnesses (a fourteen-year-old boy) did not name the wife of the deceased in the fardbeyan, it would not in any way affect the testimony of the eyewitness i.e. the wife of the deceased, who had given a graphic account of the attack on her husband and her brother-in-law by the accused persons. Where the statement of an eyewitness is found to be reliable, trustworthy and consistent with the course of events, the conviction can be based on her sole testimony. There is no bar in basing the conviction of an accused on the testimony of a solitary witness as long as the said witness is reliable and trustworthy."

23. In view of the settled position of law, we find that the statement of PW 1 inspires confidence and is truthful and reliable. His statement does not suffer from any material contradictions. On the other hand, it gives a correct eye version of what this witness saw. If PW 1 intended to lie, nothing prevented him from saying that he was also an eyewitness to the scene of stabbing of the deceased by the accused. He only stated that this crime was witnessed by the two minor children of the deceased and he had merely seen the accused running out from the house of the deceased with a knife in his hand. Where a sole witness has stated exactly what he had actually seen and the said statement otherwise fits into the case of the prosecution and is trustworthy, the court normally would not be inclined to reject the statement of such sole witness.

36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (Dattu Ramrao Sakhare v.State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] and Panchhi v.State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] )

In the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150 Hon'ble Apex Court in paragraph nos. 14, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28 and 29 has held as under:-

14. The learned counsel for the appellant contended that the entire case of the prosecution is based on solitary testimony of eyewitness Sopan, son of the deceased. He is thus an "interested" witness. In absence of any corroboration, it would not be safe to place implicit reliance on his testimony who could not have seen the assailant in the dark night. It was further contended that though several persons had come at the place of offence, none was examined except Raju, PW 8, who was also not an eyewitness. It was submitted that oral dying declaration said to have been made by the deceased Ninaji either before PW 8 Raju or PW 7 Dr. Suresh Wagh cannot be relied upon in the light of the fact that the injured was in critical condition and died within a short time. It was finally submitted that even if the case of the prosecution is believed, only a single blow was given by the accused and the case would not be covered under Section 302 IPC but would fall under Section 304 Part II IPC and the order of conviction and sentence requires to be modified.

17.So far as legal position is concerned, it is found in the statutory provision in Section 134 of the Evidence Act, 1872, which reads:

"134.Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact."

18.Let us now consider few leading decisions on the point.

19.Before more than six decades, in Mohd. Sugal Esa Mamasan Rer Alalah v.R. [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] , one M together with his brother Ecaused murder of his half-brother A. The trial court convicted Mand sentenced him to death acquitting his brother E. The conviction was confirmed by the appellate court. It was contended before the Privy Council that the conviction was solely based on unsworn evidence of a girl aged about 10-11 years. The trial court found her competent to testify, but was of the view that she was not able to understand the nature of an oath and, therefore, oath was not administered. It was contended by the accused that no conviction could be recorded on a solitary witness and that too on an unsworn evidence of a tender aged girl of 10-11 years without corroboration. Considering the question raised before the Judicial Committee, leave was granted. Their Lordships considered the legal position in England and in India. It was held that such evidence is admissible under Indian law "whether corroborated or not".

21.In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] referring to Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] this Court stated: (AIR pp. 618-19, para 10)

"On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes."

22.Quoting Section 134 of the Evidence Act, Their Lordships stated (at AIR p. 619, para 11) that

"we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated".

The Court proceeded to state: (AIR p. 619, para11)

"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.

The Court also stated: (AIR p. 619, para 12)

"There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."

23. In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] this Court held that even where a case hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration.

"It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." (SCC p. 807, para 19)

24. In Anil Phukan v. State of Assam [(1993) 3 SCC 282 : 1993 SCC (Cri) 810 : JT (1993) 2 SC 290] the Court observed: (SCC p. 285, para 3)

"Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."

25. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] referring to several cases, this Court stated: (SCC pp. 619-20, para 7)

"7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence."

26. In Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 : 2003 SCC (Cri) 1377 : JT (2003) 7 SC 270] this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] and reiterating the law laid down therein, this Court stated: (SCC p. 400, para 7)

"The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Evidence Act, 1872 (in short ''the Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact."(emphasis supplied)

27. Recently, in Bhimappa Chandappa Hosamani v. State of Karnataka [(2006) 11 SCC 323 : (2007) 1 SCC (Cri) 456] this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.

28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than onquantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, "highly interested" witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having the accused somehow or the other convicted due to animus or for some other oblique motive.

133. We have analyased evidence of PW-1 and PW-2 in light of other evidence available on record and found that all the appellants along with co-accused Bindra @ Ravindra assaulted the deceased in furtherance of common intention. Therefore, the prosecution was not obliged to prove individual act/specific overt act, individual participation of each and every accused/appellant. The accused persons used bamboo's, lathi and dandas and inflicted the aforesaid injuries in furtherance of their common intention, due to which head injury no.3 resulted fatal causing death of the deceased due to coma. Other injuries sustained by the deceased were of nature of contusion and abraded contusions and were seated on non-vital parts. Injury no.3 sustained by the deceased contained underneath it subdural Hematoma all over brain.

134. The prosecution was not obliged to prove this fact that which was the appellants or co-accused Bindra @ Ravindra gave fatal blow on head of the deceased. No fracture was found in skull of the deceased Lala.

135. On the basis of above discussions, evidence of PW-1 complainant Maiku and PW-2 Smt. Kaushalya are reliable, trustworthy, natural, credible and acceptable. Their evidence is corroborated by medical evidence adduced by the witness PW-7 Dr. Mahendra Pratap.

136. The exposition of law of the case of Kundan Singh (supra) and Sukhbir Singh (supra) relied upon by learned amicus curiae regarding the fact of individual act or individual overt act or individual participation of the appellants in the incident does not extend any benefit to the appellants. The aforesaid exposition of laws are not applicable to the facts and circumstances of this case.

137. According to provisions of Section 34 I.P.C., all the appellants and co-accused Bindra alias Ravinder acted and participated in the incident in furtherance of common intention, which could easily be gathered from the facts and circumstances of this case on the basis of evidence adduced by the prosecution.

138. We do not find that this crime was pre-planned and premeditatedly committed by the appellants. They are liable to be held guilty for culpable homicide not amounting to murder. We consider it that ends of justice would be subserved and it would be appropriate that conviction of the appellants be converted from offence punishable under Section 302 read with Section 34 IPC for offence punishable under Section 304 Part-I of read with Section 34 IPC. We consider it appropriate to award compensation to the wife/ parents (PW-1 and PW-2) of the deceased by invoking powers under Section 357 (4) Cr.P.C. The sentence of appellants is hereby modified as follows:-

(I) Both the appeals are partly allowed.

(II) The impugned judgment and order dated 1.10.2005 is modified and the appellants are hereby convicted for offence punishable under Section 304 Part-I read with Section 34 IPC. Their conviction for offence punishable under Section 302 read with Section 34 IPC is hereby set aside.

(III) The appellants are hereby sentenced to undergo rigorous imprisonment for a period of ten years.

(IV) The each appellants shall deposit compensation amounting to Rs. 25,000/- for the wife/parents of the deceased within fifteen days after receiving certified copy of this judgment/copy of judgment received by the trial court. The trial court shall inform the wife/parents (PW-1 and PW-2) of the deceased and disburse the amount of compensation immediately. The wife/parents shall receive amount of compensation in equal share.

(V) The appellants shall deposit amount of fine within fifteen days, if not deposited before the trial court, after receipt of the copy of the judgment by the trial court, otherwise they will undergo the additional period of imprisonment according to default stipulation.

(VI) After deposition of compensation and fine and completion of period of imprisonment the appellants will be set free immediately if they are not wanted in any other case.

139. The copy of judgment be sent to the trial court and the concerned Jail Superintendent for compliance.

140. The record of trial court be sent back.

141. The learned amicus curiae shall receive fee as prescribed by the Government of State of U.P.

142. The Section shall comply immediately.

Order Date :-13.5.2019

Virendra/Arvind