Madhya Pradesh High Court
Ramji vs State Of M.P. on 31 March, 2022
Author: Rajeev Kumar Shrivastava
1
The High Court Of Madhya Pradesh
Bench Gwalior
*****************
DB:- Hon. Shri Justice G.S.Ahluwalia &
Hon. Shri Justice Rajeev Kumar Shrivastava
CRA 223 of 2011
Ramji & Two Others
vs.
State of MP
==============================
Shri JP Mishra & Shri Abhishek Shrivastava, counsel for
the appellants.
Smt. Anjali Gyanani, counsel for the respondent/ State.
==============================
Reserved on 24/03/2022
Whether approved for reporting ......../........
==============================
JUDGMENT
(Delivered on 31/03/2022)
Per Rajeev Kumar Shrivastava, J:-
The present appeal u/S 374 of CrPC is filed by three
accused persons against final judgment of conviction and
order of sentence dated 31/01/2011 passed by Additional
Sessions Judge, Seondha, District Datia (MP) in Sessions
Trial No.133 of 2009, whereby appellants- accused, namely,
Ramji, Laxmi Narayan and Govind Das were put to trial on
the charge u/S.302/34 of IPC for committing murder of one
Virendra and causing hurt by means of ''lathi/luhangi'' to
deceased Virendra by which, they were held guilty in the
said Sessions Trial and accordingly, they have been
convicted and sentenced to Life Imprisonment with fine of
Rs.1,000/-each with default stipulation, to undergo three
months RI.
(2) Prosecution case, in brief, is that Ku.Poonam,
daughter of complainant Smt. Gorabai (PW1) and Virendra
Singh (husband of the complainant) sometimes, used to
become unconscious because of ill-health, therefore, they
brought their daughter Ku. Poonam to Ramdas Baba of
Village Nissar, who disclosed that appellants of Village
Dharmpura are occultists and they would treat their
daughter Ku.Poonam. On getting suspicion about act of
appellants, it is alleged that on the date of incident i.e.
18/07/2009 at about 06:00 in the evening when complainant
Smt. Gora Bai along with her husband Virendra Singh
(since deceased) was returning from Village Bhagwapura, a
quarrel took place between Virendra Singh and accused
Laxmi Narayan in front of house of Laxmi Narayan of
Village Dharmpura and thereafter, Laxmi Narayan, Govind
and Ramji committed ''marpeet'' with deceased Virendra. All
of a sudden, accused Laxmi Narayan inflicted a lathi blow
on the head of Virendra as a result of which, he fell down. It
is alleged that all three accused persons threatened to life
and committed ''marpeet'' with him by means of kicks and
fists. Complainant's younger brother-in-law (Devar) Ram
Singh (PW2) and elder brother-in-law (Jeth) Kamta Prasad
(PW5) reached spot and intervened the matter. It is further
alleged that thereafter, accused Govind Das and Ramji both
exhorted accused Laxmi Narayan to terminate life of
Virendra on which accused Laxmi Narayan again inflicted
lathi blow on the head of Virendra and thereafter, all the
accused persons entered in their house and closed the doors.
Resultantly, bleeding was found in the nose because of
damage to the brain of deceased in oval shape due to which
he became unconscious. Thereafter, complainant Smt.
Gorabai along with her younger brother-in-law (Devar)
Ram Singh and one unknown person namely Gangaram
came to the police station Seondha and lodged a report, on
the basis of which, Police SI Ajay Channa (PW9) registered
Crime No.98 of 2009 for offence u/S. 307 r/w Sec. 34 IPC
vide FIR Ex.P1 and thereafter, Virendra was sent for
medical examination vide Ex.P7.Dr. Anand Unaya (PW4)
conducted medical examination of Virendra and his report is
Ex.P3. Sub-Inspector Ajay Channa (PW9) prepared a spot
map vide Ex.P9. Blood-stained towel of Virendra was
seized vide Ex.P2. Accused persons were arrested vide
arrest memo Ex.P10, Ex. P11 & Ex.P12. A lathi was
recovered from possession of accused Laxmi Narayan vide
Ex.P13. Statements of complainant Smt. Gorabai and other
witnesses were recorded. After death of Virendra during
treatment, a merg was recorded u/S. 174 of CrPC by Head
Constable Sukhnath (PW7) vide merg No.12/2009 (Ex.P4).
Sub- Inspector Rajendra Prasad Sharma (PW10) prepared
Panchnama of dead body of deceased vide Ex.P15 and
thereafter, vide requisition form Ex.P16 dead body of
deceased was sent for postmortem and Dr.Ajay Gupta
(PW11) conducted autopsy of deceased. Postmortem report
is Ex.P19. Matter was investigated by Inspector RS Rathore
(PW8) of Police Station Seondha and statement of
Gangaram was recorded. Seized articles were sent to FSL
vide letter Ex.P5 and FSL report is Ex.P6. After completion
of investigation and during other formalities, police filed
charge sheet before the Court of JMFC, Seondha under
Section 302/34 of IPC and thereafter, the case was
committed to the Court of Session.
(3) Accused persons pleaded not guilty and claimed to
be tried and prosecution proceeded to examine its witnesses.
In all, eleven witnesses were examined by prosecution in its
support. Statements of accused u/S. 313 of CrPC were
recorded and in order to lead defence evidence, appellants-
accused examined only one witness Ranjana as DW1.
(4) The Trial Court, after appreciating and marshalling
oral and documentary evidence as well as medical evidence
placed on record, passed impugned judgment of conviction
and sentence against appellants as mentioned herein-above
in paragraph 1 of this judgment. In this manner, present
appeal has been preferred challenging the impugned
judgment of conviction and order of sentence.
(5) Learned counsel for appellants while assailing
judgment of conviction and sentence, submitted that learned
trial Court erred in convicting and sentencing appellants,
The only question which fell for consideration before this
Court is whether conviction of all three accused persons
under Section 302/34 of IPC is justified or not. If the role of
three accused is examined in commission of crime, prima
facie, there is no specific act attributed to appellants. From
the MLC reported prepared by Dr. Anand Unaya (PW4),
there are only two injuries found on the head of deceased,
one on forehead and second on middle of head and other
two injuries on the upper side of left eye and in the left eye
and there was no bleeding from all the injuries and at the
time of medical examination, there was no certification of
mental status of deceased as to whether he was conscious or
unconscious after the incident but from paragraph 4 of
cross-examination of Dr. Unaya, it is clear that deceased
was consciousness and able to walk. The trial Court has not
appreciated material evidence on record and evidence of
prosecution witnesses is not fully corroborated by contents
of FIR registered by complainant Smt. Gorabai (PW2). Shri
JP Mishra, learned counsel appearing for appellants submits
that as there was no intention of appellants for causing
death of deceased and looking to nature of injuries
sustained by deceased, ingredients of offence under Section
302 of IPC are not attracted and the appellants may be
convicted under Section 304 Part I IPC. In support of
contention, he has relied upon the judgments passed by the
Hon'ble Apex Court in the case of Prabhakar Vithal
Gholve vs. State of Maharashtra, 2016 (II) MPWN 31
(SC), and Stalin vs. State, (2020) 9 SCC 524. It is further
contended that as act committed by appellants- accused was
without premeditation in a sudden fight at the spur of
moment, therefore, they did not take undue advantage or
acted in cruel or unusual manner and conviction of
appellants under Section 302/34 of IPC deserves to be
modified to the extent of Section 304 Part II PC. In support
of contention, he has relied upon the judgments of the
Hon'ble Apex Court passed in the matter of Nandlal vs.
State of Maharashtra, (2019) 5 SCC 224 and
Lavghanbhai Devjibhai Vasava vs. State of Gujarat,
(2018) 4 SCC 329. It is further contended that in the case
at hand, neither there was any proof of a prior meeting of
minds between accused persons nor there was presence of
appellants on spot with a pre-planned manner to commit
murder of deceased. In support of contention, he has relied
on the judgment of the Hon'ble Apex Court in the case of
Akaloo Ahir vs. State of Bihar, (2010) 12 SCC 424.
Therefore, it is prayed that the impugned judgment passed
by learned Trial Court is unsustainable in the eyes of law
and same deserves to be set aside.
(6) In reply, learned counsel for the State supported
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 Trial Court do not require any inference by this
Court. Hence, prayed for dismissal of this appeal.
(7) For determination of this appeal at hand, following
three questions are required to be answered to arrive at just
conclusion regarding guilty of accused:-
(1) Whether death of deceased Virendra
was homicidal in nature ?
(2) Whether the appellants- accused
shared common intention in causing death of
deceased Virendra ?
(3) Whether in furtherance of common
intention, appellants accused caused death of
deceased Virendra by using ''lathi/luhangi ''?
(8) The Law Commission of United Kingdom in its 11th
Report proposed 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 appellant(s) caused the injury with ntention of
causing such bodily injury as ppellant(s) knew to be likely
to cause death of deceased Virendera. So, clause Secondly
of Section 300 IPC will also not apply."
(9) The enquiry is then limited to the question whether
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."
(10) 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 injuries are sufficient to cause death of deceased 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."
(11) Therefore, the contention advanced on behalf of the
appellants in the present case and which is frequently
advanced that accused had no intention of causing death of
deceased Virendera is wholly irrelevant for deciding
whether case falls in clause Thirdly of Section 300 IPC.
(12) The scope and ambit of clause Thirdly of Section 300
IPC was considered in the decision in Virsa Singh vs. State
of Punjab, [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."
(13) In the matter 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."
(14) 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."
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."
(15) Now, the question for consideration is whether
having regard to the body part involved, nature, location of
injuries and nature of weapon used, the Court below was
justified in convicting appellants under Section 302/34 of
IPC.
(16) '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.
(17) Indian Penal Code recognizes two kinds of
homicides: (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).
(18) 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.
(19) 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.
(20) The fact that the death of a human being is caused is
not enough unless one of the mental state 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.
(21) 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.
(22) In the matter of Anda vs. State of Rajasthan
[1966 CrLJ 171), while considering "third" clause of
Section 300 of IPC, it has been observed as follows :-
"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."
(23) In the case of Mahesh Balmiki vs. State of
M.P. [(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."
(24) In the matter of Dhirajbhai Gorakhbhai Nayak vs.
State of Gujarat [(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'.
(25) In the matter of Pulicherla Nagaraju @
Nagaraja vs. State of AP [(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."
(26) In the case of Sangapagu Anjaiah v. State of
A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding
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."
(25) In the mater of State of
Rajasthan v. Kanhaiyalal (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."
(27) In the case of Bavisetti Kameswara Rao v.
State of A.P. (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 v. 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."
(28) So as the contention of the appellants that the
appellants should be handed down conviction under Section
304 Part I of IPC is concerned, the Hon'ble Supreme Court
in the case of Paul vs. The State of Kerala reported in
(2020) 3 SCC 115 has held as under:-
''28. As far as the contention that appellant
should be handed down conviction under
Section 304, Part-I, we are not impressed by
the said argument. As to what constitutes
murder under Section 300 of the IPC and what
constitutes culpable homicide amounting to
murder has been a vexed issue and the subject
matter of a large body of case law. Section
300of the IPC declares that except in those
cases which are specifically excepted culpable
homicide is murder in situations which have
been specifically laid down. There are
commonly referred to as firstly, secondly,
thirdly and fourthly under Section 300 of the
IPC. If the intention of the Legislature was
that culpable homicide would amount to
murder if it did not fall in any of the five
exceptions enumerated in Section 300 of the
IPC. What was the need for the Legislature to
'waste words' as it were by declaring that
culpable homicide is murder if the act fell
within any of the 4 clauses in Section 300 of
the IPC? In order that an act is to be punished
as murder, it must be culpable homicide which
is declared to be murder. Murder is homicide
of the gravest kind. So is the punishment
appropriately of the highest order. Murder
requires establishment of the special mens rea
while all cases of culpable homicide may not
amount to murder. This Court in the judgment
in State of Andhra Pradesh v. Rayavarapu
Punnayya and Another 1976(4) SCC 382 inter
alia held as follows:
21. From the above conspectus, it
emerges that whenever 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.
(emphasis supplied)
29. As far as this case is concerned,
there can be no doubt that the act which
led to the death has been committed by
the appellant. We can safely proceed on
the basis also that it amounts to culpable
homicide. Going by the circumstances
present in this case and in particular
injuries suffered, it is quite clear that the
act would fall within the scope of Section
300 of the IPC. If the act results in
culpable homicide which does not amount
to murder, then and then alone the
question arises of applying Section 304
Part-I or Part- II as the case may be.
Appellant cannot extricate himself from
the consequence of his act attracting the
ingredients of murder by pointing out
Section 304 Part I which also contains the
expression, "the act with the intention to
cause death'. The implications are vastly
different. Section 304 of the IPC would
apply only in a case where culpable
homicide is not murder. If the act
amounting to culpable homicide satisfies
any of the four criteria to bring it under
the offence of murder, being mutually
exclusive, there can be no scope for
applying Section 304 of the IPC. On the
other hand, if the act is culpable homicide
as falling in any of the five exceptional
circumstances mentioned in Section 300
and then it would amount to culpable
homicide not amounting to murder. In
cases where the accused is able to
establish he is entitled to the benefit of
any of the exceptions under Section 300
then his case may be considered under
Part-I or Part-II of Section 304 of the IPC
depending on whether the act which
caused the culpable homicide was done
with the intention of causing death or with
knowledge that it is likely to cause death.
That apart cases of culpable homicide
which do not attract any of the four
situations under Section 300 would still
be culpable homicide to be dealt with
under Section 304 of the IPC. However, if
the case falls under any of the four limbs
of Section 300, there would be no
occasion to allow Section 304 to have
play. If the act which caused the death and
which is culpable homicide is done with
the intention of causing death, then it
would be murder. This is however subject
to the act not being committed in
circumstances attracting any of the 5
exceptions.Appellant's contention that it
would be culpable homicide not
amounting to murder and reliance placed
on the words 'done with the intention of
causing death' in Section 304 Part-I is
wholly merit-less.''
(29) Section 34 of Indian Penal Code runs as under :-
"34.-- Acts done by several persons in
furtherance of common intention.--
When a criminal act is done by several
persons in furtherance of the common
intention of all, each of such persons is
liable for that act in the same manner as
if it were done by him alone."
(30) Section 34 of the Indian Penal Code recognizes the
principle of vicarious liability in criminal jurisprudence. A
bare reading of this Section shows that the Section could be
dissected as follows :
(a) Criminal act is done by several
persons;
(b) Such act is done in furtherance of
the common intention of all; and
(c) Each of such persons is liable for
that act in the same manner as if it were
done by him alone.
(31) In other words, these three ingredients would guide
the court in determining whether an accused is liable to be
convicted with the aid of Section 34. While first two are the
acts which are attributable and have to be proved as actions
of the accused, the third is the consequence. Once the
criminal act and common intention are proved then by
fiction of law, criminal liability of having done that act by
each person individually would arise. The criminal act,
according to Section 34 I.P.C. Must be done by several
persons. The emphasis in this part of the Section is on the
word 'done'. It only flows from this that before a person can
be convicted by following the provisions of Section 34, that
person must have done something along with other persons.
Some individual participation in the commission of the
criminal act would be the requirement. Every individual
member of the entire group charged with the aid of Section
34 must, therefore, be a participant in the joint act which is
the result of their combined activity. The Section does not
envisage a separate act by all of the accused persons for
becoming responsible for the ultimate criminal act. If such
an interpretation is accepted, the purpose of Section 34 shall
be rendered infructuous.
(32) Section 34 is intended to meet a situation wherein all
the co-accused have also done something to constitute the
commission of a criminal act. Even the concept of presence
of the co-accused at the scene is not a necessary
requirement to attract Section 34 e.g., the co-accused can
remain a little away and supply weapons to the participating
accused can inflict injuries on the targeted person. Another
illustration, with advancement of electronic equipment can
be etched like this; One of such persons in furtherance of
the common intention, overseeing the actions from a
distance through binoculars can give instructions to the
other accused through mobile phones as to how effectively
the common intention can be implemented. The act
mentioned in Section 34 I.P.C., need not be an overt act,
even an illegal omission to do a certain act in a certain
situation can amount to an act e.g., a co-accused, standing
near the victim face to face saw an armed assailant nearing
the victim from behind with a weapon to inflict a blow. The
co-accused, who could have alerted the victim to move
away to escape from the onslaught deliberately refrained
from doing so with the idea that the blow should fall on the
victim. Such omission can also be termed as an act in a
given situation. Hence an act, whether overt or covert, is
indispensable to be done by a co-accused to be fastened
with the liability under the Section. But if no such act is
done by a person, even if he has common intention with the
others for the accomplishment of the crime, Section 34
I.P.C., cannot be invoked for convicting that person. This
Section deals with the doing of separate acts, similar or
diverse, by several persons; if all are done in furtherance of
a common intention, each person is liable for the result of
them all, as if he had done them himself, for 'that act' and
'the act' in the latter part of the Section must include the
whole action covered by 'a criminal act' in the first part,
because they refer to it. This Section refers to cases in
which several persons both intend to do and do an act. It
does not refer to cases where several persons intended to an
act and some one or more of them do an entirely different
act. In the latter class of cases, Section 149 may be
applicable if the number of the persons be five or more and
the other act was done in prosecution of the common object
of all.
(33) In the matter of Suresh Sankharam Nangare vs.
State of Maharashtra [2012 (9) SCALE 345], it has been
held that "if common intention is proved but no overt act is
attributed to the individual accused, section 34 of the Code
will be attracted as essentially it involves vicarious liability
but if participation of the accused in the crime is proved and
common intention is absent, section 34 cannot be involved.
In other words, it requires a pre-arranged plan and pre-
supposes prior concert, therefore, there must be prior
meeting of minds."
(34) In the matter of Shyamal Ghosh vs. State of
West Bengal [AIR 2012 SC 3539], it is observed that "
Common intention means a pre-oriented plan and acting in
pursuance to the plan, thus common intention must exist
prior to the commission of the act in a point of time."
(35) In the matter of Mrinal Das vs. State of Tripura
[AIR 2011 SC 3753], it is held that "the burden lies on
prosecution to prove that actual participation of more than
one person for commission of criminal act was done in
furtherance of common intention at a prior concert."
(36) In the mater of Ramashish Yadav v. State of
Bihar [AIR 1999 SC 1083], it is observed that "it requires a
pre-arranged plan and pre-supposes prior concert therefore
there must be prior meeting of mind. It can also be
developed at the spur of moment but there must be pre-
arrangement or premeditated concert."
(37) Mainly two elements are necessary to fulfill the
requirements of Section 34 of IPC. One is that the person
must be present on the scene of occurrence and second is
that there must be a prior concert or a pre-arranged plan.
Unless these two conditions are fulfilled, a person cannot be
held guilty of an offence by the operation of Section 34 of
IPC. Kindly see, Bijay Singh v. State [1956 CrLJ 897].
(38) In a murder case a few accused persons were
sought to be roped by Section 34 I.P.C. It was found that
one of the accused persons alone inflicted injuries on the
deceased and the participation of the other accused persons
was disbelieved. The person who alone inflicted injuries
was held liable for murder and others were acquitted.
Kindly see, Hem Raj vs. Delhi (Administration) [AIR
1990 SC 2252].
(39) In the case of Dashrathlal v. State of Gujarat
[1979 CrLJ 1078 (SC)], it has been observed that "by
merely accompanying the accused one does not become
liable for the crime committed by the accused within the
meaning of Section 34 I.P.C."
(40) In the matter of Rajagopalswamy Konar vs.
State of Tamil Nadu [1994 CrLJ 2195 (SC)], there was
land dispute between the members of a family, as a result of
which deceased persons were attacked by the accused
persons, in which one accused stabbed both the deceased
persons and other caused simple injuries with a stick. It was
held that the conviction of both the accused under Section
34 read with Section 302 IPC was not proper. Other accused
was convicted under Section 324 of IPC. Kindly see, .
(41) In the case of Sheikh Nabab v. State of
Maharashtra [1993 CrLJ 43(SC)], it is observed that "the
overt act on the part of accused could not be proved and it
was held that the order of the conviction was not proper."
(42) On a perusal of evidence bailable on record, we
are of the view that the offence committed by appellant is
clearly one of murder and squarely comes within clause
"thirdly" of Section 300 of IPC, which runs as under :-
"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."
(43) In the present matter, one lathi/luhangi injury
sustained by deceased which was sufficient in the ordinary
course of nature. It is in two parts, first part is subjective;
one which indicates that the injury must be intentional and
not accidental and, second part is objective, in that, looking
to the injury caused, the Court must be satisfied that it was
sufficient in the ordinary course of nature to cause death of
deceased. .
(44) Dr.A jay Gupta (PW11) conducted autopsy of
deceased and as per his opinion, all the injures are fresh,
antemortem caused by hard and blunt object or surface and
head injury is sufficient to cause death in the ordinary
course of nature. The death was due to shock and
haemorrhage as a result of head injury and its
complications. The duration of death of deceased was
within 6 to 24 hours since postmortem examination. The
nature of death of the deceased is homicidal in nature.
(45) On going through the record of Sessions Trial as well
as medical evidence, it is apparent that death of deceased
was homicidal in nature. As regards common intention
shared by appellants, it is seen from the evidence of Smt.
Gorabai, who happens to be the complainant and examined
as PW1, who, in her chief, stated that on exhortation raised
by two other accused Ramji and Govind Das, accused
Laxmi Narayan inflicted ''luhangi'' blow on the head of
deceased and immediately thereafter, deceased fell down.
Ram Singh (PW2) who happens to be an eye-witness of
incident, has narrated in his evidence that accused Ramji,
Govind Das and Laxmi Narayan assaulted deceased
Virendra by means of kicks and fists. It is further narrated
by him that accused Ramji and Govind Das exhorted
accused Laxmi Narayan to kill deceased and thereafter,
accused Laxmi Narayran took out ''luhangi'' and inflicted
blow of said lethal weapon on the head of deceased due to
which, deceased fell down. Other witness Kamta Prasad
(PW5) supported yhre same contents of version revealed by
the complainant PW1 Smt. Gorabai and PW2 Ram Singh to
the extent of causing injuries by accused Laxmi Narayan
during course of incident. Daughter of deceased Ku.
Poonam (PW3) who is introduced herself as eye-witness, as
she was playing at the time of incident on the spot and has
been accused surrounding deceased Virendra and thereafter,
accused Laxmi Narayan inflicted ''lathi'' blow on the
deceased due to which, deceased fell down. It appears that
incident took place all of sudden and due to altercation took
place, except accused Laxmi Narayan, other two accused
were not having any deadly weapon and deceased sustained
only one head injury. Therefore, it cannot be said that
incident was the result of pre-meeting of minds. Therefore,
Section 34 of IPC is not attracted.
(46) The evidence of above-said witnesses is put to test
by the defence by raising a plea that the same is
contradictory in nature as the FIR does not mention
presence of Ku. Poonam and Rajat Kumar (PW6) at the time
of incident and vis-a-vis all the witnesses are related to the
deceased and, therefore, turned to be interested witnesses
and thus, conviction is bad in law.
(47) The aforesaid plea of defence cannot be accepted in
view of medical evidence brought on record which supports
version of eye-witnesses to the extent of causing death of
deceased by means of head injury. On perusal of record, it
apparent that there is no any circumstance under which
provision has been made in regard to right of private
defence. Rather, it is a clear-cut case of death of deceased in
the ordinary course of nature.
(48) In the light of earlier discussions and relevant law
mentioned herein-above, it has to be seen as to whether all
three accused persons shared common intention for causing
death of the deceased or not. In the cases of Shyamlal
Ghosh & Others vs. State of Tripura, 2011(9) SCC479 and
Pandurang Tukia & Bhillia vs. State of Hyderabad, 1955
SCR (1)1083 it was held that there was no prior meeting of
minds and the incident took place all of a sudden, therefore,
it cannot be held that there was any share common intention
of the accused. Hence, considerins facts and circumstances
of case, learned Trial Court has erred in holding that the
ccused persons can be convicted under Section 302/34 of
IPC, therefore, the impugned judgment of conviction and
order of sentence of appellants is hereby set aside.
(49) So far as the next question as to whether all three
accused shared common intention of causing death of
deceased or not; is concerned, in the present circumstances,
the individual act of accused is required to be seen while
convicting with the aid of Section 34 of IPC if the act
committed by a particular accused and other accused shared
common intention, hence, considering the facts and
circumstances of the case, the Trial Court erred in holding
that the act was done in furtherance of common intention.
(50) In the present case, it is proved beyond reasonable
doubt that accused Laxmi Narayan, by holding
''lathi/luhangi'', has caused death of deceased. There is a
dispute regarding weapon used by accused Laxmi Narayan,
as some of witnesses in their evidence deposed that accused
Laxmi Narayan had used a lathi/luhangi while the prime
witness, Smt. Gorabai (PW1) and eye-witness Ram Singh
(PW2) stated that deceased Laxmi Narayan had used
''luhangi'' with which he caused injury the head of deceased.
Only difference in the evidence is regarding use of weapon.
The weapon which was seized from possession of accused
Laxmi Narayan, by PW9 Ajay Channa is shown to be a
''lathi'' without there being any cover of iron on the upper
part. As this witness has deposed in paragraph 15 that while
seizing weapon vide Ex.P13, he did not find any iron cover
on the body of weapon. If that was so, he must have
mentioned in seizure memo. Therefore, it is a clear-cut
evidence that ''lathi'' was not having any iron cover on the
top to form part of luhangi. It is clear that other accused
were not having any weapon and allegation against them
only is of assaulting deceased by kicks and fists. The
injuries sustained on the head of deceased is attributed only
to accused- appellant Laxmi Narayan, which became fatal
and put to an end the life of deceased as per the PM report.
(51) Therefore, considering overall evidence together
with evidence of eye-witnesses and documents placed on
record, it is crystal clear that the death of deceased is caused
by accused Laxmi Narayan alone and, therefore, he can be
held guilty for murder of deceased under Section 302 of
IPC. Remaining two accused, namely, Ramji and Govind
Das are not held to have committed death of deceased in
sharing common intention and, therefore, the appeal to that
extent, deserves to be allowed in part.
(52) Consequently, conviction and sentence recorded by
Trial Court for offence u/S. 302 read with Section 34 of IPC
against all the accused stands set aside and instead,
appellant accused Laxmi Narayan is held guilty for
committing murder of the deceased for offence u/S.302
IPC.
(53) As regards other two accused, namely, Ramji and
Govind Das, their conviction and sentence recorded by Trial
Court under Section 302/34 of IPC is liable to be set aside
and instead, they are convicted under Section 323 IPC for
causing simple injuries to deceased.
(54) So far as the sentence part is concerned, from perusal
of record, it is seen that both accused Ramji and Govind
Das have suffered five moths and six months of jail sentence
respectively, which in the opinion of this Court, is sufficient
to meet the ends of justice.
(55) Accordingly, the present appeal is Allowed in Part.
The impugned judgment of conviction and order of sentence
as regards accused Laxmi Narayan is affirmed, whereas
conviction recorded by the Trial Court in respect of other
accused Ramji and Govind Das is modified to the extent it
converts from Section 302/34 to Section 323 IPC. Therefore,
they are sentenced to the period already undergone u/S. 323
IPC. If they are lodged in prison, they be released forthwith
if not required in any other case.
(56) A copy of this judgment be sent to the Jail concerned
as well as copy of this judgment along with record be sent to
Trial Court concerned for information and compliance.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
MAHENDRA BARIK
2022.03.31
17:10:58 +05'30'
