Madhya Pradesh High Court
Gangadeen vs State Of M.P. on 28 October, 2021
Author: Rajeev Kumar Shrivastava
1
High Court of Madhya Pradesh
Bench Gwalior
*****************
DB:- Hon'ble Shri G. S. Ahluwalia &
Hon'ble Shri Rajeev Kumar Shrivastava, JJ
CRA 629 of 2009
Vinoda, Son of Baburam ------Appellant
Vs.
State of Madhya Pradesh -------- Respondent
&
CRA 674 of 2009
(1) Gangadeen, Son of Baturi
(2) Ramsundar son of Barelal
(3) Ramnaresh son of Barelal ------Appellants
(4) Mahaveer son of Barelal
(5) Barelal son of Baturi
Vs.
State of Madhya Pradesh -------- Respondent
==================================
Shri DR Sharma, Counsel for the appellant in CRA No.629/2009.
Shri Sunil Soni, Counsel with Shri SS Kushwah, Counsel for the the appellants
in CRA No.674 of 2009.
Shri CP Singh, Panel Lawyer for the respondent/ State in both the criminal
appeals.
==================================
Reserved on 23/10/2021
Whether approved for reporting Yes
==================================
JUDGMENT
(Delivered on 28/10/2021)
Per Rajeev Kumar Shrivastava, J:-
By this common judgment, CRA No. 674/2009 [Gangadeen and Others
Vs. State of Madhya Pradesh] filed by appellant- accused Gangadeen and four
others shall also be decided. From the order sheet dated 20/10/2021, it appears
that during the pendency of appeal, appellant No.5 Barelal has expired and the
appeal filed on behalf of appellant No.5 Barelal has been dismissed as abated.
For the sake of convenience, the facts of CRA No.629/2009 [Vinoda vs.
State of Madhya Pradesh) shall be taken into consideration, as both are arising
out of the same judgment.
(2) Both the Criminal Appeals preferred against the judgment of conviction
and sentence dated 17/08/2009 passed by First Additional Sessions Judge to the
Court of Fifth Additional Sessions Judge, (Fast Track Court) Ambah, District
Morena (MP) in Sessions Trial No.137/2006, by which appellants-accused have
been convicted and sentenced for the following offences :-
Sr. Name of appellants Offence Sentence
No -accused
1 Gangadeen 148 of I.P.C. R.I. for one year
2. Ramsundar 302/149 Life Imprisonment and fine of
3. Ramnaresh I.P.C. Rs.1000/-; in default thereof six
4. Mahaveer months RI
5. Barelal(dead during 307/149 R.I. for 7 years and fine of
pendency of appeal) I.P.C. Rs.500/-; in default thereof three
6. Vinoda months RI
324/149 R.I. for one year and fine of
I.P.C. Rs.200/-; in default thereof two
months RI
(3) The prosecution case, in brief, is that on 13/03/2006 at about 07:00 pm,
accused persons Mahaveer and Vinoda reached the house of complainant
Sukhram and told the son of complainant, Sheoprasad (Shivprasad) and Kalyan
to bring liquor. On that, the son of the complainant denied the same. Thereafter,
accused Mahaveer and Vinod went away towards the village after abusing in
filthy language. After sometime, all the accused persons returned back to the
place of occurrence. Accused Barelal was having an ''axe'', Mahaveer was
having a ''farsa'', Ramnaresh was having a ''ballam'', Karua was having a ''farsa'',
Gangadeen and Vinoda were having ''lathi''. Deceased Shivprasad was not
having any weapon in his hand or bare handed. All the accused persons started
causing injuries to deceased Sheoprasad alias Shivprasad by means of aforesaid
deadly weapons. When witnesses Kalyan, Jyoti, Sonpal came there for rescue of
the deceased Shivprasad, all the accused persons inflicted injuries to them.
Accused Barelal inflicted injury on the head of Kalyan by means of ''axe'' and
accused Karua inflicted injury to Kalyan by means of ''farsa'' and accused
Ramnaresh inflicted injury by means of ''ballam''. Accused Ramnaresh inflicted
injury to Jyoti by means of ''ballam'' and accused Mahaveer and Karua also
inflicted injuries on the head of Sonpal by means of ''farsa''.
(4) It is an admitted fact that complainant party and accused persons were
knowing each other prior to the incident. After the incident, the complainant
party reached the Police Station Ambah by bringing the injured witnesses and
deceased Sheoprasad alias Shivprasad.
(5) Jagat Singh (PW10) Assistant Sub-Inspector, Police Station Ambah
registered FIR (Ex.P5). Injured Kalyan, Sonpal and Jyotiram were sent for
medical examination vide Ex.P.7 to Ex.P9. On 16/05/2006, accused Gangadeen,
Ramnaresh, Ramsundar and Mahaveer were arrested vide arrest memo Ex.P10
to Ex.P13. They were sent for medical examination vide Ex.P24 to Ex.P26 and
Dr.Ramkrishna Barothiya (PW15) prepared MLC reports respectively. On
14/03/2006, ASI Badshah Singh (PW17) prepared Panchnama of dead body of
deceased Sheoprasad alias Shivprasad vide Ex.P.30 and Safina Form Ex.P29 for
postmortem of dead body of deceased along with application Ex.P28. Spot map
was prepared and blood-stained clothes of deceased and plain soil were seized
from the place of occurrence vide Ex.P1. Statement of witness Kalyan was
recorded u/S. 161 of CrPC. Dr.MR Sharma (PW16) conducted postmortem of
the deceased. On 02/04//2006, police in-charge D.S. Bhadoriya (PW16)
recorded statements of witnesses Jyoti, Sonpal and Ramswaroop u/S. 161 of
CrPC. Police In-charge Rajendra Pathak (PW13) also recorded statements of
Ramprakash, Kishori and Ramdas. Discharge ticket Ex. P21, X-ray report
Ex.P18 and X-ray plate Ex.P19 were also seized. On 26/07/2006, accused
persons were arrested as per Ex.P30 and their memorandum u/Section 27 of the
Evidence Act was recorded vide Ex.P5. All the seized articles were sent for
examination to FSL. Police, after completing the investigation, filed charge
sheet against accused persons u/Ss. 148, 302 read with Section 149, in the
alternative Sections 302, 307/149 of IPC.
(6) Accused persons pleaded not guilty and claimed to be tried. Statements of
accused persons u/S. 313 of CrPC were recorded. Accused Gangadin took a plea
that at the time of alleged incident, he had gone to village Udaypura. Accused
Ramsundar took a plea that at the time of alleged incident, he was in Gwalior as
he was doing a job in Gwalior. Accused Vinoda took a plea that at the time of
alleged incident, he was in Delhi and he has falsely been implicated. All the
accused persons did not examine any witness in order to lead any defence
evidence.
(7) Prosecution, in order to prove its case, examined Sukhram (PW1),
Kalyan (PW2), Jyotiram (PW3), Krishna Kumar (PW4), Ramdas (PW5), Sonpal
(PW6), Mohkam Singh (PW7), Raghuraj Singh Tomar (PW8), Shriniwas
(PW9), Jagat Singh Yadav (PW10), Dr. Jagdish Singh (PW11), DS Bhadoriya
(PW12), Rajendra Pathak (PW13), Dr. RP Gupta (PW14), Dr. Ramkrishna
(PW15), Dr. MR Sharma (PW16) and Badshah Singh Bhadoriya (PW17).
(8) The Trial Court, by the impugned judgment and sentence, after
marshalling the evidence available on record, found appellants - accused guilty
and accordingly, convicted and sentenced them, as described in paragraph 2 of
this judgment.
(9) Challenging the impugned judgment of conviction and sentence, it is
submitted by the learned Counsel appearing for the appellants- accused that the
trial Court has erred in considering the evidence produced before it as there were
various contradictions and omissions in the evidence of prosecution witnesses. It
is further submitted that the witnesses are relative of the deceased and they are
interested witnesses and, therefore, their evidence is not reliable. Further,
prosecution evidence does not support medical evidence. Even, there is nothing
on record to suggest that all the accused persons had formed any unlawful
assembly or they had acted in furtherance of common object to commit murder
of deceased or cause any injuries to the victims/injured. The appellants have
been falsely implicated and there is no common object for committing the
offence aforesaid. Further, it is submitted that scene of occurrence and such
incident did take place in the manner suggested by the prosecution is doubtful.
Thus, conviction of appellants- accused u/Ss. 148, 302/149, 307/149, 324/149 of
I.P.C. is unsustainable. Hence, prayed that the impugned judgment of conviction
and sentence passed by the Trial Court deserves to be set aside.
(10) On the other hand, it is submitted by the learned Counsel appearing for
the State in both the appeals that the prosecution has proved the guilt of all the
accused beyond reasonable doubt. All the appellants formed an unlawful
assembly and in furtherance of common object, they have caused injuries to
deceased Sheoprasad alias Shivprasad by means of deadly weapons as well as
caused injuries to victims/injured witnesses. It is further submitted that there
was no previous enmity of the complainant party with accused persons,
therefore, there was no reason for them to falsely involve the accused in the
commission of crime. In support of his contention, he has relied upon the
judgment passed by Supreme Court in the case of Surjit Singh vs State of
Punjab reported in AIR 1999 SC 2855. The learned State Counsel further
submitted that if there are some improvements here and some exaggerations
there or some minor discrepancies in the evidence of witnesses, then the
prosecution case will not be damaged thereby. In supported of his contention, he
has relied upon the the judgment passed by the Supreme Court in the case
Meharban and Others vs. State of MP reported in AIR 1997 SC 1528. He
further supported the impugned judgment of conviction and sentence and
submitted that there being no infirmity in the impugned judgment of conviction
and sentence and the findings arrived at by the Trial Court do not require any
interference by this Court. Hence, prayed for dismissal of both the appeals.
(11) Heard the learned Counsel for the parties and perused the record.
(12) The first question for determination of present appeals is whether the
death of deceased Sheoprasad (Shivprasad) was homicidal in nature or not?
(13) It would be appropriate to throw light on relevant provisions of Sections
299 and 300 of Indian Penal Code.
The Law Commission of United Kingdom in its 11th Report proposed the
following test :
"The standard test of 'knowledge' is, Did the person
whose conduct is in issue, either knows of the relevant
circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)]
"Therefore, having regard to the meaning assigned in criminal law the
word "knowledge" occurring in clause Secondly of Section 300 IPC imports
some kind of certainty and not merely a probability. Consequently, it cannot be
held that the appellant caused the injury with the intention of causing such
bodily injury as the appellant knew to be likely to cause the death of Shivprasad.
So, clause Secondly of Section 300 IPC will also not apply."
The enquiry is then limited to the question whether the offence is covered
by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of
Section 300 IPC reads as under: -
''Culpable homicide is murder, if the act by which the death
is caused is done 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."
The argument that the accused had no intention to cause death is wholly
fallacious for judging the scope of clause Thirdly of Section 300 IPC as the
words "intention of causing death" occur in clause Firstly and not in clause
Thirdly. An offence would still fall within clause Thirdly even though the
offender did not intend to cause death so long as the death ensues from the
intentional bodily injury and the injuries are sufficient to cause death in the
ordinary course of nature. This is also borne out from illustration (c) to Section
300 IPC which is being reproduced below: -
"(c) A intentionally gives Z a sword-cut or club-wound
sufficient to cause the death of a man in the ordinary course of
nature. Z dies in consequence. Here A is guilty of murder,
although he may not have intended to cause Z's death."
Therefore, the contentions advanced in the present case and which are
frequently advanced that the accused- appellants had no intention of causing
death of deceased Sheoprasad (Shivprsasad) is wholly irrelevant for deciding
whether the case falls in clause Thirdly of Section 300 IPC.
(14) The scope and ambit of clause Thirdly of Section 300 IPC was considered
by the Supreme Court in the decision in Virsa Singh vs. State of Punjab
reported in AIR 1958 SC 465 and the principle enunciated therein explains the
legal position succinctly. The accused Virsa Singh was alleged to have given a
single spear blow and the injury sustained by the deceased was "a punctured
wound 2"x =" transverse in direction on the left side of the abdominal wall in
the lower part of the iliac region just above the inguinal canal. Three coils of
intestines were coming out of the wound." After analysis of the clause Thirdly, it
was held: -
"The prosecution must prove the following facts before
it can bring a case under S. 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. Thirdly, it must be proved
that there was an intention to inflict that particular bodily
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, is 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. Once these four elements are
established by the prosecution (and, of course, the burden is
on the prosecution throughout), the offence is murder under
S. 300 "Thirdly". It does not matter that there was no
intention to cause death, or that there was no intention even
to cause an injury of a kind that is sufficient to cause death in
the ordinary course of nature (there is no real distinction
between the two), or even that there is no knowledge that an
act of that kind will be likely to cause death. Once the
intention to cause the bodily injury actually found to be
present is proved, the rest of the enquiry is purely objective
and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary
course of nature to cause death."
(15) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No.
Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
"11. First it has to be seen whether the offence falls
within the ambit of Section 299 IPC. If the offence falls under
Section 299 IPC, a further enquiry has to be made whether it
falls in any of the clauses, namely, clauses 'Firstly' to
'Fourthly' of Section 300 IPC. If the offence falls in any one
of these clauses, it will be murder as defined in Section
300IPC, which will be punishable under Section 302 IPC.
The offence may fall in any one of the four clauses of Section
300 IPC yet if it is covered by any one of the five exceptions
mentioned therein, the culpable homicide committed by the
offender would not be murder and the offender would not be
liable for conviction under Section 302 IPC. A plain reading
of Section 299 IPC will show that it contains three clauses, in
two clauses it is the intention of the offender which is
relevant and is the dominant factor and in the third clause the
knowledge of the offender which is relevant and is the
dominant factor. Analyzing Section 299 as aforesaid, it
becomes clear that a person commits culpable homicide if the
act by which the death is caused is done
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily
injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to
cause death."
If the offence is such which is covered by any one of
the clauses enumerated above, but does not fall within the
ambit of clauses Firstly to Fourthly of Section 300 IPC, it will
not be murder and the offender would not be liable to be
convicted under Section 302 IPC. In such a case if the offence
is such which is covered by clauses (i) or (ii) mentioned
above, the offender would be liable to be convicted under
Section 304 Part I IPC as it uses the expression "if the act by
which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to
cause death" where intention is the dominant factor. However,
if the offence is such which is covered by clause (iii)
mentioned above, the offender would be liable to be
convicted under Section 304 Part II IPC because of the use of
the expression "if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to cause
death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the
offence committed by the appellant falls within any of the
clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately
be urged that clauses Firstly and Fourthly of Section 300 IPC
were not attracted. The expression "the offender knows to be
likely to cause death" occurring in clause Secondly of Section
300 IPC lays emphasis on knowledge. The dictionary
meaning of the word 'knowledge' is the fact or condition of
being cognizant, conscious or aware of something; to be
assured or being acquainted with. In the context of criminal
law the meaning of the word in Black's Law Dictionary is as
under: -
"An awareness or understanding of a fact or
circumstances; a state of mind in which a person has
no substantial doubt about the existence of a fact. It is
necessary ... to distinguish between producing a result
intentionally and producing it knowingly. Intention
and knowledge commonly go together, for he who
intends a result usually knows that it will follow, and
he who knows the consequences of his act usually
intends them. But there may be intention without
knowledge, the consequence being desired but not
foreknown as certain or even probable. Conversely,
there may be knowledge without intention, the
consequence being foreknown as the inevitable
concomitant of that which is desired, but being itself
an object of repugnance rather than desire, and
therefore not intended."
In Blackstone's Criminal Practice the import of the word
'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the
same role in relation to circumstances as intention
plays in relation to consequences. One knows
something if one is absolutely sure that it is so
although, unlike intention, it is of no relevance
whether one wants or desires the thing to be so. Since
it is difficult ever to be absolutely certain of anything,
it has to be accepted that a person who feels 'virtually
certain' about something can equally be regarded as
knowing it."
(16) Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by
doing an act with the intention of causing death, or
with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence
of culpable homicide."
(17) Section 299 of IPC says, whoever causes death by doing an act with the
bodily injury as is likely to cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of culpable homicide. Culpable
homicide is the first kind of unlawful homicide. It is the causing of death by
doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily
injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to
cause death.
Without one of these elements, an act, though it may be by its nature
criminal and may occasion death, will not amount to the offence of culpable
homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the
existence of a positive mental attitude and the mental condition is the special
mens rea necessary for the offence.The knowledge of third condition
contemplates knowledge of the likelihood of the death of the person. Culpable
homicide is of two kinds : one, culpable homicide amounting to murder, and
another, culpable homicide not amounting to murder. In the scheme of the
Indian Penal Code, culpable homicide is genus and murder is species. All
murders are culpable homicide, but not vice versa. Generally speaking, culpable
homicide sans the special characteristics of murder is culpable homicide not
amounting to murder. In this section, both the expressions 'intent' and
'knowledge' postulate the existence of a positive mental attitude which is of
different degrees.
(18) Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is
caused is done with the intention of causing death, or--
Secondly.-- If it is done 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--
Thirdly.-- If it is done 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--
Fourthly.-- If the person committing the act knows that
it is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause death,
and commits such act without any excuse for incurring the
risk of causing death or such injury as aforesaid."
(19) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the
causing of death by doing ;(i) an act with the intention to cause death; (ii) an act
with the intention of causing such bodily injury as is likely to cause death; or,
(iii) an act with the knowledge that it was likely to cause death.
(20) Indian Penal Code recognizes two kinds of homicide :(1) Culpable
homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable
homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable
homicide; (i) Culpable homicide amounting to murder (Section 300 read with
Section 302 of IPC), and (ii) Culpable homicide not amounting to murder
(Section 304 of IPC).
(21) A bare perusal of the Section makes it crystal clear that the first and the
second clauses of the section refer to intention apart from the knowledge and the
third clause refers to knowledge alone and not the intention. Both the expression
"intent" and "knowledge" postulate the existence of a positive mental attitude
which is of different degrees. The mental element in culpable homicide i.e.,
mental attitude towards the consequences of conduct is one of intention and
knowledge. If that is caused in any of the aforesaid three circumstances, the
offence of culpable homicide is said to have been committed.
(22) There are three species of mens rea in culpable homicide.(1) An
intention to cause death; (2) An intention to cause a dangerous injury; (3)
Knowledge that death is likely to happen.
(23) The fact that the death of a human being is caused is not enough unless
one of the mental sates mentioned in ingredient of the Section is present. An act
is said to cause death results either from the act directly or results from some
consequences necessarily or naturally flowing from such act and reasonably
contemplated as its result. Nature of offence does not only depend upon the
location of injury by the accused, this intention is to be gathered from all facts
and circumstances of the case. If injury is on the vital part, i.e., chest or head,
according to medical evidence this injury proved fatal. It is relevant to mention
here that intention is question of fact which is to be gathered from the act of the
party. Along with the aforesaid, ingredient of Section 300 of IPC are also
required to be fulfilled for commission of offence of murder.
(24) In the scheme of Indian Penal Code, "Culpable homicide" is genus and
"murder" is its specie. All "Murder" is "culpable homicide" but not vice versa.
Speaking generally 'culpable homicide sans special characteristics of murder' if
culpable homicide is not amounting to murder.
(25) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171,
while considering "third" clause of Section 300 of IPC, it has been observed as
under:-
"It speaks of an intention to cause bodily injury which is
sufficient in the ordinary course of nature to cause death. The
emphasis here is on sufficiency of injury in the ordinary course
of nature to cause death. The sufficiency is the high probability
of death in the ordinary way of nature and when this exists and
death ensues and causing of such injury was intended, the
offence is murder. Sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is caused,
and sometimes both are relevant. The determinant factor is the
intentional injury which must be sufficient to cause death in the
ordinary course of nature."
(26) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1
SCC 319, while deciding whether a single blow with a knife on the chest of the
deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section
302 I.P.C. is not attracted. Single blow may, in some cases,
entail conviction under Section 302 I.P.C., in some cases under
Section 304 I.P.C and in some other cases under Section 326
I.P.C. The question with regard to the nature of offence has to
be determined on the facts and in the circumstances of each
case. The nature of the injury, whether it is on the vital or non-
vital part of the body, the weapon used, the circumstances in
which the injury is caused and the manner in which the injury is
inflicted are all relevant factors which may go to determine the
required intention or knowledge of the offender and the offence
committed by him. In the instant case, the deceased was
disabled from saving himself because he was held by the
associates of the appellant who inflicted though a single yet a
fatal blow of the description noted above. These facts clearly
establish that the appellant had intention to kill the deceased. In
any event, he can safely be attributed knowledge that the knife
blow given by him is so imminently dangerous that it must in
all probability cause death or such bodily injury as is likely to
cause death."
(27) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat
reported in (2003) 9 SCC 322, it has been observed as under :-
"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 the 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 cruel or unusual manner. The expression 'undue advantage'
as used in the provision means 'unfair advantage'.''
(28) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP
reported in (2006) 11 SCC 444, while deciding whether a case falls under
Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304
Part II. Many petty or insignificant matters plucking of a fruit,
straying of a cattle, quarrel of children, utterance of a rude word
or even an objectionable glance, may lead to altercations and
group clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be totally absent in
such cases. There may be no intention. There may be no pre-
meditation. In fact, there may not even be criminality. At the
other end of the spectrum, there may be cases of murder where
the accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no intention to
cause death. It is for the courts to ensure that the cases of
murder punishable under section 302, are not converted into
offences punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated as
murder punishable under section 302. The intention to cause
death can be gathered generally from a combination of a few or
several of the following, among other, circumstances : (i) nature
of the weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the blow
is aimed at a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act was in the
course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was
any pre- meditation; (vii) whether there was any prior enmity or
whether the deceased was a stranger; (viii) whether there was
any grave and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and
there may be several other special circumstances with reference
to individual cases which may throw light on the question of
intention. Be that as it may."
(29) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799,
Hon'ble Apex Court while deciding the question whether a blow on the skull of
the deceased with a crowbar would attract Section 302 IPC, held thus:-
"16. In our opinion, as nobody can enter into the mind of the
accused, his intention has to be gathered from the weapon used,
the part of the body chosen for the assault and the nature of the
injuries caused. Here, the appellant had chosen a crowbar as the
weapon of offence. He has further chosen a vital part of the body
i.e. the head for causing the injury which had caused multiple
fractures of skull. This clearly shows the force with which the
appellant had used the weapon. The cumulative effect of all
these factors irresistibly leads to one and the only conclusion
that the appellant intended to cause death of the deceased."
(30) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5
SCC 639, this it has been held as follows:-
"7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6
SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held
that there is no fixed rule that whenever a single blow is inflicted,
Section 302 would not be attracted. It is observed and held by this
Court in the aforesaid decision that nature of weapon used and
vital part of the body where blow was struck, prove beyond
reasonable doubt the intention of the accused to cause death of the
deceased. It is further observed and held by this Court that once
these ingredients are proved, it is irrelevant whether there was a
single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar
Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 :
(2012) 1 SCC (Cri) 397] , the death was caused by single blow
on head of the deceased with a wooden pestle. It was found that
the accused used pestle with such force that head of the deceased
was broken into pieces. This Court considered whether the case
would fall under Section 302 or Exception 4 to Section 300 IPC.
It is held by this Court that the injury sustained by the deceased,
not only exhibits intention of the accused in causing death of
victim, but also knowledge of the accused in that regard. It is
further observed by this Court that such attack could be none
other than for causing death of victim. It is observed that any
reasonable person, with any stretch of imagination can come to
conclusion that such injury on such a vital part of the body, with
such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent
decision in Leela Ram (supra) and after considering catena of
decisions of this Court on the issue on hand i.e. in case of a single
blow, whether case falls under Section 302 or Section 304 Part I
or Section 304 Part II, this Court reversed the judgment and
convicted the accused for the offence under Section 302 IPC. In
the same decision, this Court also considered Exception 4 of
Section 300 IPC and observed in para 21 as under: (SCC para 21)
"21. Under Exception 4, culpable homicide is not
murder if the stipulations contained in that provision are
fulfilled. They are: (i) that the act was committed without
premeditation; (ii) that there was a sudden fight; (iii) the
act must be in the heat of passion upon a sudden quarrel;
and (iv) the offender should not have taken undue
advantage or acted in a cruel or unusual manner."
(31) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in
(2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
"13. It is seen that where in the murder case there is only a
single injury, there is always a tendency to advance an argument
that the offence would invariably be covered under Section 304
Part II IPC. The nature of offence where there is a single injury
could not be decided merely on the basis of the single injury and
thus in a mechanical fashion. The nature of the offence would
certainly depend upon the other attendant circumstances which
would help the court to find out definitely about the intention on
the part of the accused. Such attendant circumstances could be
very many, they being (i) whether the act was premeditated; (ii)
the nature of weapon used; (iii) the nature of assault on the
accused. This is certainly not an exhaustive list and every case has
to necessarily depend upon the evidence available. As regards the
user of screwdriver, the learned counsel urged that it was only an
accidental use on the spur of the moment and, therefore, there
could be no intention to either cause death or cause such bodily
injury as would be sufficient to cause death. Merely because the
screwdriver was a usual tool used by the accused in his business, it
could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 :
1995 SCC (Cri) 231] this Court considered the usual argument of
a single injury not being sufficient to invite a conviction under
Section 302 IPC. In that case the injury was caused by a knife. The
medical evidence supported the version of the prosecution that the
injury was sufficient, in the ordinary course of nature to cause
death. The High Court had convicted the accused for the offence
under Section 304 Part II IPC relying on the fact that there is only
a single injury. However, after a detailed discussion regarding the
nature of injury, the part of the body chosen by the accused to
inflict the same and other attendant circumstances and after
discussing clause Thirdly of Section 300 IPC and further relying
on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC
465] , the Court set aside the acquittal under Section 302 IPC and
convicted the accused for that offence. The Court (in
Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] ,
SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa
Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case
[AIR 1958 SC 465], AIR p. 468, para 16)
"16. With due respect to the learned Judge he has linked up
the intent required with the seriousness of the injury, and
that, as we have shown, is not what the section requires.
The two matters are quite separate and distinct, though the
evidence about them may sometimes overlap."
The further observation in the above case were: (Virsa
Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17)
"16. The question is not whether the prisoner intended
to inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present. If
he can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course, the
intent that the section requires is not proved. But if there is
nothing beyond the injury and the fact that the appellant
inflicted it, the only possible inference is that he intended to
inflict it. Whether he knew of its seriousness, or intended
serious consequences, is neither here nor there. The
question, so far as the intention is concerned, is not whether
he intended to kill, or to inflict an injury of a particular
degree of seriousness, but whether he intended to inflict the
injury in question; and once the existence of the injury is
proved the intention to cause it will be presumed unless the
evidence or the circumstances warrant an opposite
conclusion. But whether the intention is there or not is one
of fact and not one of law. Whether the wound is serious or
otherwise, and if serious, how serious, is a totally separate
and distinct question and has nothing to do with the question
whether the prisoner intended to inflict the injury in
question....
17. It is true that in a given case the enquiry may be
linked up with the seriousness of the injury. For example, if
it can be proved, or if the totality of the circumstances
justify an inference, that the prisoner only intended a
superficial scratch and that by accident his victim stumbled
and fell on the sword or spear that was used, then of course
the offence is not murder. But that is not because the
prisoner did not intend the injury that he intended to inflict
to be as serious as it turned out to be but because he did not
intend to inflict the injury in question at all. His intention in
such a case would be to inflict a totally different injury. The
difference is not one of law but one of fact."
(32) The next question for determination is whether the offence falls within
the ambit of Section 307 of IPC or not ?
(33) Section 307 of IPC runs as under:-
"Attempt to murder. - Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to
ten years and shall also be liable to fine; and if hurt is caused to
any person by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is hereinbefore
mentioned."
(34) In the case of Bakshish Singh vs. State, reported in AIR 1952 Pepsul38,
it is observed that if a man commits an act with such intention and knowledge
and under such circumstances that if death had been caused the offence would
have amounted to murder and the act itself is of such a nature as would have
caused death in the usual course of the events but for something beyond his
control which prevented that result his act would be punishable as an attempt to
murder.
(35) In the case of Hari Singh vs. Sukhbir Singh & Others, reported in
(1988) 4 SCC 551, the Supreme Court held that while examining whether a case
of commission of offence under Section 307 IPC IPC is made out, the Court is
required to see, whether the act, irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in that section. The
intention or knowledge of the accused must be such as is necessary to constitute
murder. Without this ingredient being established, there can be no offence of
'attempt to murder'. Under Section 307, the intention precedes the act attributed
to accused. Therefore, the intention is to be gathered from all circumstances, and
not merely from the consequences that ensue. The nature of the weapon used,
manner, in which, it is used, motive for the crime, severity of the blow, the part
of the body where the injury is inflicted are some of the factors that may be
taken into consideration to determine the intention. The state of mind of the
accused has to be established from surrounding circumstances and the motive
would be relevant circumstance. Where the evidence is not sufficient to establish
with certainty, existence of all requisite intention or knowledge of the accused,
there can be no conviction under Section 307 IPC. The evidence on record,
nature of injuries, if examined in the light of the aforesaid principle laid down by
the Apex Court, it is difficult to hold that the appellants arrived in the house of
the victim, Maikulal with an intention to cause death.
(36) The essential ingredients required to be proved in the case of an offence
under Section 307 of IPC are :-
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence
of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that
it was done with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of nature to cause death, or
that the accused attempted to cause death by doing an act known to
him to be so imminently dangerous that it must in all probability
cause (a) death, or (b)such bodily injury as is likely to cause death, the
accused having no excuse for incurring the risk of causing such death
or injury. The first part makes any act committed with the intention or
knowledge that it would amount to murder if the act caused death
punishable with imprisonment up to ten years. The second part makes
such an act punishable with imprisonment for life if hurt is caused
thereby. Thus even if the act does not cause any injury, it is punishable
with imprisonment up to 10 years. If it does cause an injury and
thereafter hurt, it is punishable with imprisonment for life".
(37) For holding guilty under Section 307 of IPC, it is not essential that bodily
injury capable of causing death should have been inflicted. Although the nature
of injury actually caused may often give considerable assistance in coming to a
finding as to the intention of the accused, such intention may also be deduced
from other circumstances, and may even, in some cases, be ascertained without
any reference at all to actual wounds. The Section makes a distinction between
an act of the accused and its result, if any. Such an act may not be attended by
any result so far as the person assaulted is concerned, but still there may be cases
in which the culprit would be liable under this Section. It is not essential that the
injury actually caused to the victim should be sufficient under ordinary
circumstances to cause the death of the person assaulted. The Court has to see
that whether the act, irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in the section. It is sufficient in
law, if there is intention coupled with some overt act in execution thereof. It
must be noted that Section 307 IPC provides for imprisonment for life if the act
causes 'hurt'. It does not require that the hurt should be grievous or of any
particular degree. The intention to cause death is clearly attributable to the
accused since the victim was strangulated after throwing a telephone wire
around his neck and telling him he should die. In order to amount to an attempt
to murder, the act attempted must be such that if not prevented or intercepted, it
would be sufficient to cause death of the victim.
(38) In the case of Uttam Ghosh vs. State, 1995 Cr.L.J. 4079 (Cal), it is held
that similarly the accused was arrested for shooting of a professor in Amritsar
and a pistol made in USA was recovered from his possession and on the basis of
evidence on records he was convicted by the designated Court under Section 307
but on appeal High Court set aside his conviction on the ground that the accused
was arrested on 25 November whereas his arrest was shown to have taken place
on 6 December. Supreme Court also confirmed the verdict of the High Court and
held that since appellant had been arrested prior to 6 December, his conviction
was not sustainable. Where from the injuries caused intention or knowledge to
cause death could not be inferred, it was held that conviction of the accused shall
be altered from Section 307 to one under Section 324 and others would be held
liable under Section 323. Here even benefits of probation were not given to the
accused as he had assaulted the victim indiscriminately at a lonely place. The
accused in a case before Supreme Court had due to political rivalry aimed the
dagger blow at the head of the victim whose hand was severed from the wrist
when he tried to ward off blow by raising his hands. It was held that conviction
under Section 307 was proper as severity of blow was sufficient to spell out the
murderous intent of the accused. Similarly where accused had fired a single shot
injuring the victim due to previous enmity between them, it was held that the
accused was guilty under Section 307 and was not entitled to the benefits of
doubts on the ground that the other accused were already acquitted.
(39) In the case of Mohindar Singh vs. State of Punjab, reported in AIR
1960 Punj 135, it is observed that the offence of attempt to commit murder
punishable under Section 307 IPC is constituted by the concurrence of mens rea
followed by an actus reus. An intent per-se is not an attempt. It implies purpose
and attempt is an actual effort made in execution of the purpose. From the steps
directed towards the objective sought, the criminal intent must be logically
inferable. The attempt for purposes of Section 307 IPC should stem from a
specific intention to commit murder, and this blameworthy condition of mind
may be gathered from direct or circumstantial evidence, including the conduct of
the accused. Apart from the necessary mens rea, the actus reus must be more
than a preliminary preparation. The means must be apparently, though not really
suitable, so that they can be adapted to the designed purpose.
(40) In the case of Kanbi Nagji Kala vs. State, reported in 1956 Cr.L.J. 1439
(Sau), it is held that when the mens rea, which is essential to the offence of
murder, was absent and where the weapons used by the accused were ordinary
agricultural implements and did not necessarily indicate a deliberate intention to
cause death or fatal injuries, conviction under Section 307 was held not
sustainable. In that case four boys took their cattle for grazing; but the cattle
strayed into the adjoining field of the accused and were committing mischief.
The accused attempted to take them to pound but was obstructed by the boys
resulting in a scuffle and some of the boys were seriously injured by sharp
cutting weapons. The High Court ruled out the plea of self defence on the part of
the accused but at the same time acquitted the accused of the charge under
Section 307 IPC for absence of mens rea, the accused using only sharp cutting
agricultural implements used ordinarily by cultivators.
(41) In the case of Abdul Wahid vs. State of U.P., reported in 1980 CrLJ
(NOC) 77 (All), it was held as follows:-
"Under Section 307 IPC what the Court has to see is, whether
the act irrespective of its result, was done with the intention or
knowledge and under circumstances mentioned in that section. The
intention or knowledge of the accused must be such as is necessary to
constitute murder. Without this ingredient being established, there
can be no offence of 'attempt to murder'. Under Section 307 IPC the
intention precedes the act attributed to accused. Therefore, the
intention is to be gathered from all circumstances and not merely
from the consequences that ensue. The nature of the weapon used,
manner in which it is used, motive for the crime, severity of the blow,
the part of the body where the injury is inflicted are some of the
factors that may be taken into consideration to determine the
intention. To constitute an offence under Section 307 IPC the
intention or knowledge must be such as is necessary to constitute
murder. The intention is to be gathered from the nature of the weapon
used and the parts of the body where the injuries are inflicted and no
conviction is legally permissible unless the prosecution proves the
ingredients of Section 300 IPC of which intention or knowledge play
a vital role. ''
(42) Intent which is a state of mind can never be precisely proved by direct
evidence as a fact: it can only be deduced or inferred from other facts. Some
relevant considerations are :(1) the nature of weapon used; (2) the place where
injuries were inflicted; (3) the nature of the injury caused; (4) the opportunity
available which the accused gets. The Court has to see is, whether the act
irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in that Section. The intention or knowledge of the
accused must be such as is necessary to constitute murder. Therefore, the
intention is to be gathered from all the circumstances, and not merely from the
consequences that ensue. The nature of the weapon used, manner in which it is
used, motive for the crime, severity of the blow, the part of the body where the
injury is inflicted are some of the factors that may be taken into consideration to
determine the intention.
(43) Now, the facts of case are required to be marshallized with the help of
prosecution evidence adduced before the Trial Court.
(44) Dr. MR Sharma (PW16), in his evidence, deposed that on 14/03/2006 he
was posted as Medical Officer at Civil Hospital, Ambha. On the said date, dead
body of deceased was brought by Constable R.Maniram No.28 of Police Station
Lukhrai,Ambah along with application form Ex.P27 carrying his signature from
''A to A''. In his statement, this witness stated that the dead body of deceased was
identified by Sukhram, father of the deceased and cousin of deceased Ramdas.
This witness further stated that deceased was wearing white-colour underwear,
his eyes and mouth were shut and the deceased was having stiffness. On
postmortem examination, he found the following injuries over the body of
deceased:-
''(1) Incised wound size 6x 1 cm x bone deep on the left parietal
bone of skull.
(2) Incised wound size 3x1 cm x bone deep on the front bone of
skull left side.
(3) Contusion size 8x7 cm was on occipito-temporal region of
skull.
(4) Lacerated wound size 3 x 1 cm straight on the left cheek.
(5) Bruise size 5x 2 cm on the left shoulder.
(6) Abrasion size 6x1 cm was on the left clavicle bone of shoulder
side. ''
(45) The doctor opined, that all the injuries were anti- morterm in nature. In
the internal examination, as per the opinion of doctor, there was fracture of
frontal and left-parietal bone of skull. The brain of deceased was ruptured,
teared and brain heamorrhage was caused. Remaining parts of body of deceased
were healthy. Death of deceased was due to coma, as a result of various injuries
inflicted to his brain. Duration of death of deceased was 6 to 24 hours. Death of
deceased was homicidal in nature. This witness further stated that circumstantial
evidence should also be considered and postmortem report is Ex.P28 carrying
his signature from ''A to A''.
(46) Hence, the death of deceased was homicidal in nature and the
injuries caused to the deceased were sufficient to cause his death.
(47) Dr. Ramkrishna Barothiya (PW15) in his evidence deposed that on
13/03/2006 he examined injured witnesses Kalyan, son of Sukhram (PW2),
Jyotiram (PW3) and Sonpal (PW6). On medical examination of injured/victim
Kalyan (PW2), he found following injuries over the body of injured Kalyan:-
''(1) Incised wound size 6''x1'' x bone deep, 2''x½' 'x bone deep,
1''x1/2'' x bone deep
(2) Incised wound size 2"x½'' x bone deep on left side of middle
head.
(3) Incised wound size ¾'' x 1/10'' x 1/10'' on left side of chest
(4) Incised wound size ¾ '' x 1/10''x ½'' on below of arm. ''
This witness stated that he had referred injured Kalyan to Neurology, JA
Hospital, Gwalior and advised for his X-ray. Report is Ex.24 carrying his
signature from ''A to A''.
(48) Dr. Ramkrishna Barothiya (PW15) in his evidence deposed that on
medical examination of injured Sonpal (PW6), he found the following injuries
on the body of injured Sonpal:-
''(1) Incised wound size 2''x 1/10'' x1/10'' on left side of middle
head.
(2) Incised wound size 2½'' x 1/10''x 1/10'' on right side of back of
middle head.''
As per opinion of doctor, all the injuries were caused by sharp edged
object and simple in nature. MLC is Ex.P25 carrying his signature from ''A to
A''.
(49) Further, Dr. Ramkrishna Barothiya (PW15) in his evidence deposed that
on medical examination of injured Jyotiram (PW3), he found the following
injury on the body of injured Jyotiram-
(1) Incised wound size ¼'' x1/10''x1/10'' on right side of chest
As per opinion of doctor, the aforesaid injury was caused by sharp-edged
object.
(50) The next question for consideration is whether appellants- accused were
members of unlawful assembly with deadly weapons and in furtherance of
common object had committed murder of deceased Sheoprasad alias
Shivprasad and cause grievous hurt/injuries to the victims Jyotiram,
Kalyan and Sonpal; and whether they can be convicted with the aid of
Section 149 of IPC or not ?
(51) Learned Counsel for the appellants-accused submitted that as per
ingredients of Section 149 of IPC, act should be done directly but in the present
case, there is no overt act on the part of each of the appellants, therefore, no
conviction can be made. In support of contention, learned Counsel relied on the
judgment passed in the case of Raju alias Rajendra and Another vs. State of
Rajasthan, reported in 2013 (1) CCSC 226 (SC) and the judgment passed in
the case of Ranjit Singh vs. State of Punjab and Another, reported in 2014 (1)
CCSC 305(SC). But in the present case, there is specific overt act on the part of
the appellants-accused for preparation to commit the offence, who were having
various deadly weapons, therefore, fulfils the ingredients of Section 149 of IPC.
(52) Section 149 of Indian Penal Code runs as under :-
"149. Every member of unlawful assembly guilty of offence
committed in prosecution of common object.-- 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."
There are two essential elements covering the act under Section 149 of
Indian Penal Code, which are as under:-
''(i) The assembly should consist of at least five persons; and
(ii) They should have a common object to commit an offence or
achieve any one of the objects enumerated therein.''
(53) For recording a conclusion that a person is guilty of any offence under
Section 149 of IPC, it must be proved that such person is a member of an
"unlawful assembly" consisting of not less than five persons irrespective of the
fact whether the identity of each one of the five persons is proved or not. If that
fact is proved, the next step of inquiry is whether the common object of the
unlawful assembly is one of the five enumerated objects specified under Section
141 of IPC.
(54) The common object of assembly is normally to be gathered from the
circumstances of each case such as the time and place of the gathering of the
assembly, the conduct of the gathering as distinguished from the conduct of the
individual members are indicative of the common object of the gathering.
Assessing the common object of an assembly only on the basis of overt acts
committed by such individual members of the assembly is not permissible.
(55 ) In the case of Dani Singh v. State of Bihar reported in (2004) 13 SCC
203, the Hon'ble Apex Court has observed as under :-
"The emphasis in Section 149 IPC 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 has 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."
1.
(56) In the case of Mahadev Sharma v. State of Bihar reported in (1966) 1
SCR 18, the Hon'ble Apex Court has discussed about applicability of Section
149 of IPC and observed as under :-"The fallacy in the cases which hold that a
charge under Section 147 is compulsory arises because they overlook that the
ingredients of Section 143 are implied in Section 147 and the ingredients of
Section 147 are implied when a charge under Section 149 is included. An
examination of Section 141 shows that the common object which renders an
assembly unlawful may involve the use of criminal force or show of criminal
force, the commission of mischief or criminal trespass or other offence, or
resistance to the execution of any law or of any legal process. Offenses under
Sections 143 and 147 must always he present when the charge is laid for an
offence like murder with the aid of Section 149, but the other two charges need
not be framed -separately unless it is sought to secure a conviction under them.
It is thus that Section 143 is not used when the charge is under Section 147 or
Section 148, and Section 147 is not used when the charge is under Section 148.
Section 147 may be dispensed with when the charge is under Section 149 read
with an offence under the Indian Penal Code."
(57) It is relevant to mention here that if all the necessary ingredients are
present in a case when charges were framed under Section 149 of IPC, each
member of unlawful assembly shall be held liable. The condition precedent is
that the prosecution proves the existence of unlawful assembly with a common
object, which is the offence.
(58) In the case of Kuldip Yadav vs. State of Bihar reported in (2011)
5 SCC 324, it is held that a clear finding regarding nature of the common object
of the assembly must be given and the evidence discussed must show not only
the common object, but also that the object was unlawful, before recording a
conviction under Section 149 of IPC. Foremost essential ingredient of Section
141 of IPC must be established.
(59) Sukhram (PW1) in his statements deposed that accused Vinoda inflicted
injury on the head of Sheoprasad by means of ''lathi''. Accused Mahaveer
inflicted injury by means of ''farsa'' on head of Sheoprasad. Accused Karua
inflicted injury by means of ''farsa'' on the head of Sheoprasad. Accused Balla
inflicted injury by means of ''axe'' on the head of Sheoprasad. Accused
Gangadeen inflicted injury by means of ''lathi'' on the cheek of Sheoprasad.
Accused Naresh also inflicted injury by means of ''ballam'' on the Kalthari of
Sheoprasad. Thereafter, accused Mahaveer and Karua also inflicted injuries on
the head of his son Kalyan by means of ''farsa''. Accused Balla inflicted injury
by means of ''axe'' on the head of Kalyan. Accused Naresh inflicted injury by
means of ''ballam''on the below of arm and inflicted injury to the chest of
Kalyan. When witness Jyoti came for rescue, accused Naresh also inflicted an
injury to his chest by means of ''ballam ''and inflicted injury to witness Sonpal
also.
In his cross-examination, this witness stated that on the date of incident,
mustard crops were standing in the field. All the accused persons were hidden
themselves in the mustard field. This witness stated that he had taken the dead
body of deceased Sheoprasad from the field of Ramveer, who had fallen on the
ground with blood-stains. He was wearing pant and shirt. On the date of incident
after sunset there was bright night. In his cross-examination, this witness stated
that this fact has been narrated by him to police in his police diary statement
Ex.D2. In paragraph 7 of his cross-examination, this witness stated that he had
seen the dead body of deceased Sheoprasad while removing clothes from his
body by the police. This witness in paragraph 9 of his cross-examination denied
that Sonpal, Ramprakash, Kalyan and Shivprasad had taken liquor on the date of
incident. In paragraph 11 of his cross-examination, this witness denied that
accused Mahaveer and Vinod had told hisson for bringing the liquor. In
paragraph 13 of his cross-examination, this witness stated that all the accused
persons had come near the well of the field of Ramveer with deadly weapons
and this fact was narrated by him and he could not say as to why Police did not
mention in the report. After 15-20 minutes of the incident, at about 07:00 pm,
they reached Police Station and Police within 10-15 minutes registered FIR. This
witness in paragraph 20 of his cross-examination admitted that there is no
independent witness. In paragraph 29 of his cross-examination, this witness
denied that his son Shivprasad and Kalyan had any evil intention on the wife of
appellant-accused Vinoda. This witness denied that unknown persons have
committed murder of his son Shivprasad.
(60) Injured witness Kalyan (PW2), in his evidence, deposed that accused
persons, six in number, were unlawfully assembled and surrounded deceased
Sheoprasad and killed him. This witness stated that accused Mahaveer, Karua
and Barelal inflicted injury on his head by means of ''farsa''. Accused Naresh
inflicted injury on his chest and below the arm by means of ''ballam''. When
Sonpal came for rescue, accused Mahaveer and Karua also inflicted injuries to
him by means of ''farsa''. Accused Naresh also inflicted injury to his uncle
Jyotiram by means of ''ballam''. This witness, in his cross-examination, admitted
that on the date of incident, on the date of incident there was an atmosphere of
taking drink and fish near the well. On the date of incident, his relatives had
come to his house. This witness, in paragraph 4 of his cross-examination,
deposed that on the date of incident, after sunset there was a moon light. This
witness in paragraph 7 of his cross-examination deposed that at the time of
recording of his statement, he had already narrated about the injuries caused to
deceased Sheoprasad to police and he could not say as to why Police did not
write in his police diary statement Ex.D1. This witness further deposed he had
not narrated about the injury caused to witness Sonpal by accused Gangadeen.
At the time of recording of his statement, he had already disclosed to the police
about the injuries sustained by witness Sonpal caused by accused-appellants
Mahaveer and Karua and he could not say as to why Police did not mention this
fact in his police diary statement Ex.D1. In paragraph 18 of his cross-
examination, this witness stated that at the time of recording of his statement, he
had already narrated that he had gone along with deceased Sheoprasad and had
seen that the accused persons have beaten deceased Sheoprasad and he could not
say as to why Police did not mention this fact in the report.
(61) Other injured witness Jyotiram (PW3) in his evidence stated that after
the incident, near about 10-20 villagers reached the spot. On the date of incident,
he had gone to the field for attending the call of nature. This witness stated that
Sukhram had lodged report at Police Station. After 20 days of the incident,
Police had come to the hospital and recorded his statement. This witness stated
that the place of incident was the the field of Ramveer Singh Tomar and the time
of incident was 07:00 pm. This fact has been narrated by him to the Police and
he could not say as to why Police did not mention this fact in his police diary
statement Ex.D3. This witness further stated that he has already narrated to the
Police that accused-appellant Mahaveer inflicted injury by means of ''farsa'' on
the head of deceased Sheoprasad, accused Karua inflicted injury by means of
farsa, accused Barelal inflicted injury by means of ''axe'' and accused Gangadeen
inflicted injury on the cheek of Sheoprasad and he could not say as to why
Police did not mention this fact in his police diary statement Ex.D3. This
witness further stated that the dead body of deceased Sheoprasad was brought to
the police station at about 11:00 pm and the deceased was wearing pant and
shirt. On the Panchnama of the dead body of deceased, he had put his signature.
In his cross-examination, this witness admitted that Police had recorded his
statement after 20 days of the incident as he was unable to tell anything because
of pain. This witness in para 22 of his cross-examination admitted that the place
of incident was the field of Ramveer and this fact has been narrated by him in his
police diary statement Ex.D3. This witness denied that he is giving any false
evidence. This witness in his cross-examination further deposed that after the
sunset, there was a bright night and this fact has also been narrated by his brother
Sukhram in his statement. This witness in paragraph 25 of his cross-examination
deposed that at the time of taking the dead body of deceased Sheoprasad, he was
wearing an underwear and his dead body was kept by Ramdas and Ramswaroop
in a tractor. Rest of the clothes were either take off in the field or in his house.
(62) Krishna Kumar (PW8), the son of the deceased Sheoprasad, in his
evidence deposed that he had taken off the bloodstained clothes of his father in
the field and shoes in the house. Ramdas (PW5) in his evidence also deposed
that the son of the deceased had taken off the bloodstained clothes of deceased
in the field and he along with witnesses Jyotiram and Sukhram had taken the
dead body of deceased in a tractor. From para 15 and 16 of the statements of this
witness, there are some omissions and contradictions regarding injuries caused
by accused.
(63) Another injured witness Sonpal (PW6) in paragraph 14 of his evidence
deposed that in his presence, accused Mahaveer had not demanded any liquor
from the deceased Sheoprasad. This witness further stated that after sunset,
within 10-15 minutes there would be night of full moon. This fact has been
narrated by him to Police at the time of recording of his statement and he could
not say as to why Police did not mention this fact in his police diary statement
Ex.D6. This witness in para 20 of his cross-examination stated that he had
narrated to the Police that the place of incident had taken place in the mustard
field and he could not say as to why Police did not mention this fact in his police
diary statement Ex.D6. This witness further in his cross-examination deposed
that his statement was recorded by Police after 20-22 days of incident as he was
in the hospital and in his presence, Sukhram had not lodged report. This witness
in paragraph 33 of his cross-examination denied that the incident had not taken
place at 07:00 pm. In his cross-examination, this witness further deposed that at
the time preparation of spot map, police did not call him.
(64) Jagat Singh Yadav (PW10), in his evidence deposed that on 13/03/2006
he was posted as Assistant Sub-Inspector at Police Station Ambha. This witness
in paragraph 7 of his cross-examination, denied that at the time of registering the
FIR, due to overwriting the time of lodging FIR as 23:30 has been mentioned in
place of 22:30. He further deposed that accused Gangadeen, Ramnaresh,
Ramsundar and Mahaveer were arrested by him. Accused persons themselves
had come to the Police Station on 16/05/2006. He had neither seized blood-
stained clothes of the injured nor sent the deadly weapons to the Ballistic Expert.
This witness in his cross-examination denied that later on, MLC reports of the
injured witnesses Kalyan, Sonpal and Jyotiram( Ex.P7 to Ex. P9) were falsely
prepared.
(65) It is evident from the record as well as evidence of aforesaid witnesses
that the act done by appellants accused in furtherance of their common object
has been proved by relevant prosecution witnesses wherein, the FIR registered
by Jagat Singh Yadav (PW10), who stated that the FIR was lodged as per the
information given by the father of deceased Sukhram (PW1). Postmortem of the
deceased was conducted and the injured were medically examined. Postmortem
of deceased has been proved, as mentioned above and MLC reports of the
injured persons were also proved.
(66) It is an admitted fact that complainant party and the accused persons are
knowing each other prior to the incident. Sukhram (PW1) in his evidence has
specifically stated that on the date of incident, all the accused persons reached
the spot and told his son deceased Sheoprasad to bring the liquor. When his son
Sheoprasad denied the same, on that the accused persons abused in filthy
language and went away. After sometime, all the accused persons returned back
with various deadly weapons and caused grievous injuries to deceased
Sheoprasad. When witnesses Sonpal, Jyotiram and and Kalyan came for rescue,
the accused persons also inflicted injuries to them by deadly weapons
respectively. Deceased Sheoprasad had also sustained grievous injuries caused
by accused persons by means of deadly weapons. Injured witnesses, Sonpal,
Jyotiram and Kalyan in their evidence have specifically stated that the deceased
had died due to the injuries caused by accused persons. Prosecution version of
Sukhram (PW1) has been fully corroborated by evidence of the injured
witnesses Kalyan (PW2), Jyotiram (PW3) and Sonpal (PW6). Even though,
there are some contradictions and omissions in the statements given by aforesaid
injured witnesses, but the aforesaid contradictions and omissions are not fatal
to the prosecution case. The oracular evidence is fully supported by medical
evidence.
(67) So far the defence of accused persons that the incident had taken place in
the dark night, the same has no force. As the incident took place in the month of
March at around 07:00 pm. In the month of March, after sunset there was a
bright moon light and the victim(s) can identify the accused persons. There is no
evidence of previous enmity between the accused persons and the complainant
party. Rather, the present case reflects modus operandi of the accused persons
that initially they reached the house of complainant and told the son of
complainant to bring the liquor. When the son of complainant Sheoprasad
refused to bring liquor, then the accused persons went away and after sometime,
all the accused persons returned back to the place of occurrence with deadly
weapons and committed the incident which reflects the motive of accused
persons. As per the seizure memo, seized articles as well as deadly weapons like
lathi, ballam, farsa and axe were seized by Investigating Officer, Jagar Singh
Yadav (PW10) vide Ex.P14 to ExP17 carrying his signature from ''A to A''. Spot
map was prepared vide Ex.30. Bloodstained clothes and plain soil were also
seized from the spot.
(68) So far as the argument advanced by learned counsel for the appellants-
accused that all the relevant witnesses are relative witnesses and credibility of
witnesses cannot be believed is concerned, there is no force in the said
argument.
(69) The Apex Court in the case of Harbeer Singh Vs. Sheeshpal and
others, reported in (2016) 16 SCC 418 has held as under :-
''18. Further, the High Court has also concluded that these
witnesses were interested witnesses and their testimony was
not corroborated by independent witnesses. We are fully in
agreement with the reasons recorded by the High Court in
coming to this conclusion.
19. In Darya Singh v. State of Punjab, this Court was of the
opinion that a related or interested witness may not be hostile
to the assailant, but if he is, then his evidence must be
examined very carefully and all the infirmities must be taken
into account. This is what this Court said: (AIR p. 331, para 6)
"6. There can be no doubt that in a murder case
when evidence is given by near relatives of the victim
and the murder is alleged to have been committed by the
enemy of the family, criminal courts must examine the
evidence of the interested witnesses, like the relatives of
the victim, very carefully. ... But where the witness is a
close relation of the victim and is shown to share the
victim's hostility to his assailant, that naturally makes it
necessary for the criminal courts to examine the
evidence given by such witness very carefully and
scrutinise all the infirmities in that evidence before
deciding to act upon it. In dealing with such evidence,
courts naturally begin with the enquiry as to whether the
said witnesses were chance witnesses or whether they
were really present on the scene of the offence. ... If the
criminal court is satisfied that the witness who is related
to the victim was not a chance witness, then his evidence
has to be examined from the point of view of
probabilities and the account given by him as to the
assault has to be carefully scrutinized."
20. However, we do not wish to emphasize that the
corroboration by independent witnesses is an indispensable
rule in cases where the prosecution is primarily based on the
evidence of seemingly interested witnesses. It is well settled
that it is the quality of the evidence and not the quantity of
the evidence which is required to be judged by the Court to
place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P., it has
been held that: (SCC p. 84, para 10)
"10. ... the prosecution is not bound to produce
all the witnesses said to have seen the occurrence.
Material witnesses considered necessary by the
prosecution for unfolding the prosecution story alone
need to be produced without unnecessary and
redundant multiplication of witnesses. ... In this
connection general reluctance of an average villager
to appear as a witness and get himself involved in
cases of rival village factions when spirits on both
sides are running high has to be borne in mind."
(70) Thus, it is clear that although the evidence of related witnesses cannot be
discarded/disbelieved on this sole ground but their evidence must be examined
very carefully and all infirmities must be taken into consideration.
(71) It is argued by learned Counsel for the appellants- accused that in the
present case, there is a serious infirmity in the proof of prosecution evidence.
The standard of evidence is not of a high quality and, therefore, accused persons
are entitled to fair and true investigation and fair trial and prosecution is
expected to play a balanced role in the trial of a crime. In support of contention,
learned counsel has placed reliance on the judgment of Apex Court in the case
of Ankush Maruti Shinde and Others vs. Sate of Maharasthra, reported in
(2019) 15 SCC 470.
There is no force in the argument advanced by learned Counsel for the
appellants-accused. As discussed above, ocular evidence is fully supported by
medical evidence. Furthermore, while the incident took place within no time,
then in normal course of nature, it is not possible to witness the incident by
independent witnesses along with the fact that number of witnesses is not
material. It is well-settled principle of law that the quality of evidence and not
quantity of evidence is material which is required to be judged by the Court to
place credence on the statements of witnesses. Therefore, the credibility of
prosecution witnesses in the present matter remained unrebutted.
(72) Learned Counsel for the appellants-accused further submits that the
injuries found on the left side of body of deceased Sheoprasad reflect that he
had died due to fall on the ground and the injuries sustained by him were not
caused by any sharp-cutting objects.
This argument of learned Counsel has no force as whenever any person is
attacked by more than one persons, the person who has been attacked, tries to
save himself and in order to save from the injuries, the body reaction may differ
from man to man and if only such injuries were found on the body of deceased,
then it cannot be said that the deceased had fallen on the ground having sharp-
cutting objects.
(73) The learned Counsel for the appellants- accused submitted that the time
of the incident was around 07:00 pm and at that time, no one can identify any
person or persons due to darkness.
Again, this argument has no force as the date of incident is 13 th March
and as observed by the Trial Court in its judgment, on 13 th March the sunset
times remains at around 06:25 pm and it is also a natural phenomenon that, after
sunset around 45 minutes sufficient light remains there.
(74) The learned counsel for the appellants-accused further submitted that
there are various contractions and omissions in the prosecution witnesses and
the prosecution case is suffered from various contradictions, discrepancies and
inconsistencies and in particular, there is a serious doubt about truthfulness or
credibility of witnesses. If there are contractions and omissions in the statement
of witnesses, then benefit should be given to the accused/appellants. In support
of contention, the Counsel has relied on the judgments passed by Supreme
Court in the case of Prabhat @ Bhai Narayan Wagh & Another vs. State of
Maharashtra reported in 2013(1) CCSC 1001(SC) and in the case of Noushad
alias Noushad Pasha & Others vs. State of Karnataka, reported in 2015 (1)
Crimes (32).
Further, the counsel for the appellants- accused submitted that there is
delay in recording statements of injured witnesses, Kalyan (PW2), Jyotiram
(PW3) and Sonpal (PW6) and the delay has not been properly explained by
prosecution because the statements of witnesses should have recorded on the
same date of incident. The learned Counsel further submitted that there is long
delay on the part of Investigating Officer in recording the statements of
witnesses during investigation of the case. Therefore, delayed examination of
the witnesses shall give an opportunity to them to concoct a different version
that what actually took place in the incident. It is further submitted that
conviction of accused cannot be based upon the evidence of injured witnesses
whose conduct was unnatural and inconsistent with ordinary course of human
nature making their presence at the place of incident extremely doubtful, is
highly unsafe without corroboration from other piece of evidence. Further, it is
submitted that while appreciating the prosecution evidence, inherent
improbabilities in the story narrated by alleged witnesses should be analyzed. In
the present case, the testimony of the witnesses is not fully corroborated,
therefore, the entire prosecution may be discarded and the conviction of accused
is unsustainable. In support of contention, the learned Counsel has placed
reliance on the judgments passed in the case of Balakrushna Swain vs. The
State of Orissa, reported in AIR 1971 SC 504, Salveraj vs. The State of Tamil
Nadu, reported in AIR 1976 SC 1970, Balaka Singh & Others vs. The State
of Punjab, reported in AIR 1975 SC 1962, Amar Singh vs. State (NCT of
Delhi), reported in 2020 SCC Online SC 826, Vijaybhai Bhanabhai Patel vs.
Navnitbhai Nathubhai Patel & Others, reported in 2004 SCC(Cri) 2032 and
Vipin Jog vs. State of Madhya Pradesh, reported in 2008 Cr. L. J (MP)73.
So far as the argument advanced by learned Counsel for the appellants-
accused regarding contractions and omissions as well as the delay is concerned,
the same has no force. On perusal of the record, it is apparent that no prejudice
has been caused to appellants-accused due to delay in recording of statements of
witnesses under Section 161 of CrPC as there is ample evidence available on
record against the accused. As stated above, there is no material omissions and
contractions in the evidence of prosecution witnesses. Corroboration is required
whenever ocular or the medical evidence is not so strong to believe. Conviction
of accused cannot be assailed merely because of some lacuna in the
investigation and any failure or omission of investigating officer cannot render
prosecution case doubtful or unworthy of belief in a case where prosecution
case is fully established by direct testimony of the injured witnesses duly
corroborated by medical evidence.
(75) The learned Counsel for the appellants- accused also submitted that there
was on blood on the seized deadly weapons, therefore, it cannot be said that
weapons were used by accused persons for commission of alleged offence. So
far as recovery of deadly weapons used by accused is concerned, none of the
weapons was found to be stained with blood. Even the weapons were not sent to
the Ballistic Expect.
Again, there is no substance in the said argument advanced by learned
Counsel for the accused. As the discovery of weapons was made as per arrest of
accused persons at the place where incident had taken place and the weapons
were seized from the field of complainant at the behest of accused. Further, the
bloodstained articles and plain soil were collected by Police from the spot. Also,
ocular evidence is supported by medical evidence. Therefore, it cannot be said
that accused persons have not used any deadly weapons causing injuries to the
deceased as well as to victims/ injured, in the incident.
(76) On the basis of aforesaid discussion, it is evident that as per the medical
evidence, the death of the deceased was homicidal in nature and was caused by
deadly weapons. The victims were also injured by deadly weapons by accused
persons. Nature of injuries of deceased were also dangerous to life. Ocular
evidence of injured witnesses, namely, Kalyan, Sonpal and Jyotiram is fully
corroborated by medical evidence. Hence, the motive of accused is emerged out
from the evidence produced by Prosecution before trial Court. As the deceased
refused to bring liquor, all the accused persons went away and after sometime,
all the accused persons, who were members of an unlawful assembly consisting
of not less than five persons, in furtherance of their common intention, reached
the spot and caused injuries to the deceased as well as to the victims/ injured by
means of deadly weapons like farsa, ballam, axe and lathi, which are sufficient
to cause the death of the deceased and also reflect common intention of accused
appellants.
(77) In the light of foregoing discussion, we are of the considered opinion that
the Trial Court has properly and legally analyzed and appreciated the entire
evidence available on record and did not commit any mistake in convicting and
sentencing the appellants- accused. Therefore, the impugned judgment of
conviction and sentence dated 17/08/2009 passed by First Additional Sessions
Judge to the Court of Fifth Additional Sessions Judge (Fast Track Court)
Ambah, District Morena (MP) in Sessions Trial No.137/2006 is hereby
affirmed.
(78) Consequently, Criminal Appeal No.629/2009 filed by appellant- accused
Vinoda fails and is hereby dismissed. Since he is on bail, therefore, his bail
bonds stand cancelled. He is directed to surrender before the Trial Court
concerned for serving the remaining part of jail sentence.
(79) Similarly, Criminal Appeal No.674/2009 filed by appellant No.1
Gangadeen and four others (except appellant No.5- Barelal who has died during
pendency of appeal) also fails and is hereby dismissed. Since appellant No.1
accused Gangadeen and appellant No.3 Ramnaresh are on bail, therefore, their
bail bonds also stand cancelled. They are directed to surrender before the Trial
Court concerned for serving the remaining part of jail sentence. Since the
remaining accused (appellant No. 2 Ramsundar and appellant No.4 Mahaveer)
are in jail, therefore, they be intimated with the result of their appeal through the
Jail Superintendent concerned.
(80) With a copy of this judgment, record of the Trial Court be sent back
immediately.
(G. S.Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
MAHENDRA
Digitally signed by MAHENDRA BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR,
postalCode=474001, st=Madhya Pradesh,
2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981397a35d9
BARIK
758a2b55074,
pseudonym=61167CBF346371FDA4919D07819090142FCCA056,
serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B6C8C3FF
0E5E280DD36D476F6BA, cn=MAHENDRA BARIK
Date: 2021.10.28 18:34:59 +05'30'
