Madhya Pradesh High Court
Rahul Singh vs State Of M.P. on 25 March, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1 CRA Nos. 1025 of 2010 & 1030 of 2010
High Court Of Madhya Pradesh
Bench Gwalior
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DB:- Hon. Shri Justice G.S. Ahluwalia &
Hon. Shri Justice Rajeev Kumar Shrivastava
CRA 1025/2010
1. Rahul Singh S/o Ranveer Singh Gurjar
2. Ajmer Singh S/o Mohar Singh Gurjar
3. Omkar Singh S/o Ajmer Singh
4. Jitendra Singh (since dead)
5. Ranveer Singh S/o Mohar Singh
All Residents of Village Bhakoti, P.S. Mihona
District Bhind (MP)
Vs
State of Madhya Pradesh
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Shri S.K. Tiwari, Counsel for appellants No.1, 2, 3 and 5.
Appellant No.4 Jitendra Singh has already died.
Shri Rajeev Upadhyay, Counsel for respondent/State.
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And
CRA No.1030/2010
1. Bhan Singh S/o Feran Singh Gurjar
2. Vedram S/o Feran singh Gurjar
3. Devendra Singh s/o Suraj Singh
4. Indraveer Singh S/o Vishwanath Singh
5. Vishwanath S/o Suraj Singh
All Residents of Village Bhakoti, P.S. Mihona
District Bhind (MP)
Vs.
State of Madhya Pradesh
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Shri Pradeep Katare, Counsel for appellants No.1, 2 and 3,
namely, Bhan Singh, Vedram and Devendra Singh.
Shri Amit Lahoti with Shri Rajendra Singh Yadav, Counsel for
appellant No.4, namely, Indraveer Singh.
Shri Suresh Agrawal, Counsel for appellant No.5, namely,
Vishwanath.
Shri Rajeev Upadhyay, Counsel for respondent/State.
Shri S.K. Tiwari, Counsel for complainant.
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Reserved on : 09.03.2022
Whether approved for reporting : ...../......
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JUDGMENT
2 CRA Nos. 1025 of 2010 & 1030 of 2010 (Delivered on 25/03/2022) Per Rajeev Kumar Shrivastava, J.:
Appellants in CRA No.1025/2010 were tried in Session Trial No.167 of 2010 and appellants in CRA No.1030/2010 were tried in Session Trial No.55 of 2010, but the incident is one and the same, therefore, they are heard analogously and are being disposed of by this common judgment. (2) CRA No.1025 of 2010 is preferred under Section 374 of CrPC against the judgment of conviction and order of sentence dated 30.11.2010 passed by Third Additional Sessions Judge, Bhind in Session Trial No.167 of 2010 and CRA No. 1030/2010 has been preferred under Section 374 of CrPC against the judgment of conviction and order of sentence dated 30.11.2010 passed by Third Additional Sessions Judge, Bhind in Session Trial No.55 of 2010, whereby appellant No.2 Ajmer Singh and appellant No.3 Omkar Singh in (CRA No.1025 of 2010) have been convicted under Section 324 of IPC and appellant No.5 Ranveer Singh, appellant No.4 Jitendra Singh and appellant No.1 Rahul Singh have been convicted under Section 324/149 of IPC and sentenced them to undergo RI for 3-3 years each with fine of Rs.200-200/-each with default stipulation and appellant no.5 Ranveer Singh, appellant No.4 Jitendra Singh and appellant No.1 Rahul Singh have been further convicted under Section 323 of IPC and appellant No. 2 3 CRA Nos. 1025 of 2010 & 1030 of 2010 Ajmer and appellant No.3 Omkar Singh have been convicted under Section 323/149 of IPC and sentenced to undergo one year RI each. Both sentences have been directed to run concurrently. All the appellants were acquitted of offence under Sections 452, 294 and 506-B of IPC.
(3) Appellant No.1 Bhan Singh, appellant No.2 Vedram, appellant No.3 Devendra Singh, appellant No.4 Indraveer Singh and appellant No.5 Vishwanath in CRA No. 1030 of 2010 have also been convicted under Section 302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000-1,000/- each with default stipulation. Under Section 148 of IPC, sentenced to undergo RI for 3-3 years each and under Section 324/149 of IPC sentenced to undergo RI for 3-3 years each and under Section 323/149 of IPC to undergo RI for 1-1 year each. All the sentences have been directed to run concurrently. All the appellants have been acquitted of offence under Section 506 Part-II of IPC.
(4) Further, a report dated 3.5.2018 furnished at the instance of Station House Officer, Police Station Mihona, District Bhind that appellant No.4 Jitendra Singh, S/o Ranveer Singh in Cr.A. No.1025/2010 has expired on 5.12.2017. Accordingly, by order dated 11-7-2018, his appeal has been dismissed as abated. (5) Admitted facts of the case are that cross-cases were registered against both the parties wherein, both the parties 4 CRA Nos. 1025 of 2010 & 1030 of 2010 have been convicted by the trial Court.
(6) Facts of the case, in brief, taken out from Cr.A. No.1025/2010:- The prosecution story, in short, is that on 12.01.2010 at about 8:30 PM, some altercation took place at the house of complainant Bhan Singh between Devendra and Gajendra, but the matter was not reported. Thereafter, when complainant was sitting in front of his house, Uday Singh (deceased) abused him. When he resisted, Uday Singh and Ajmer Singh duly armed with deadly weapons came there and started beating Vishwanath and Uday Singh caused injury on his head. Ajmer inflicted lathi blows on his head. At the same time, Jitendra and Omkar reached there, armed with lathi and farsa and beaten Kunwar Singh. When Vedram reached on the spot, he also was beaten by Omkar Singh, Rahul and Ranveer by lathi. Shivram Singh and Nanheraja were present at the time of incident. FIR was lodged and the matter was investigated. After completion of investigation, the charge sheet was filed. (7) Facts of the case, in brief, taken out from Cr.A. No.1030/2010:- Prosecution story, in a nutshell, is that some altercation took place before 15 days of the incident between Gajendra Singh and Devendra Singh and Devendra Singh had beaten up with a stick, for which no report was made. Due to that enmity, on 12.01.2010 at about 8.30 pm, in the field of complainant Jitendra Singh at Village Bhakoti, Vishwanath 5 CRA Nos. 1025 of 2010 & 1030 of 2010 Singh and Bhan Singh came there and started abusing. When he resisted, Uday Singh also came there. Vishwanath caused injury on the head of Uday Singh by means of axe. Bhan Singh inflicted a lathi blow to complainant Jitendra. At the same time, Indraveer and Devendra reached there, armed with lathi and axe and committed marpeet with family members of Jitendra, namely, Ajmer and Omkar Singh, by which Omkar sustained injuries on his head and body. Ajmer sustained injuries on his head. At the same time, Rahul Singh, Raghav and Smt. Pushpa reached there to save their family members, who were also beaten by Indraveer, Devendra and Vedram by axe. Vedram caused lathi blow to Ranveer. Atar Singh and Munna also reached there. During the incident, Uday Singh was died. FIR was lodged for offences under Sections 324, 323, 451, 294, 506 Part II of IPC. Later on, Section 302 of IPC was enhanced. After completion of investigation, the charge sheet was filed. (8) The Trial Court framed charges against the accused- appellants in S.T. No.167/2010 under Sections 452, 294, 506 Part II, 324, 323 of IPC and has convicted them under Sections 324 read with Section 149 of IPC and 323 & 323 read with section 149 of IPC and in S.T. No.55/2010 trial Court framed charges against appellants Bhan Singh, Vedram, Devendra, Indraveer Singh, Vishwanath under Sections 148, 506-II, 302/149, 323/149, 324/149 of IPC and convicted them under 6 CRA Nos. 1025 of 2010 & 1030 of 2010 Sections 302/149, 148, 324/149 of IPC and 323/149 of IPC.
GROUNDS RAISED IN CRIMINAL APPEAL NO.1025/2010 (9) It is submitted by the learned counsel appearing for the appellants that the judgment passed by the learned trial Court is against the settled principle of law. The trial Court has not only misread the evidence on record, but has also misapplied the law in its approach to the case. The prosecution witnesses were highly interested, inimical to the appellants and their statements were self-contradictory on material particulars. During the course of incident, the accused persons also sustained injuries and Uday Singh died. Record and evidence clearly indicate that the incident occurred in the field of appellants and complainant party was aggressor. Therefore, considering the aforesaid circumstances of the case, the appellants were fully entitled for their right of self-defence and the conviction is totally unwarranted. It is further submitted that Dr. R.L. Sharma (PW6) examined all the injured persons and has found two incised wounds and one injury caused by hard and blunt object on the person of Bhan Singh, vide report Ex.P3. Kunwar Singh sustained one incised wound and three other injuries caused by hard and blunt object, vide report Ex.P4. Vishwanath sustained three injuries caused by hard and blunt object vide report Ex.P5. Kalyan Singh sustained two injuries caused by hard and blunt object, vide report Ex.P6 and Vedram sustained two 7 CRA Nos. 1025 of 2010 & 1030 of 2010 injuries caused by hard and blunt object, vide report Ex.P7. It is further submitted that the doctor has opined that the aforesaid injuries may be caused by fall or even may be self-inflicted. It is further submitted that the appellants are innocent and they have falsely been implicated. The appellants have produced ExD4 to ExD17 in their defence including FIR of cross-case and postmortem report of deceased Uday Singh. Appellants have also sustained injuries during the course of same incident. Therefore, considering the cross-cases, it appears that the incident took place at the door of the appellants and the complainants of this case were aggressors, therefore, the appellants were entitled for their right of self-defence. The injuries caused by the appellants have not been explained by the prosecution. Hence, prayed to allow the appeal.
GROUNDS RAISED IN CRIMINAL APPEAL NO.1030/2010 (10) It is submitted by the learned counsel appearing for the appellants that the judgment and sentence passed by the trial Court is against the settled principle of law. The injuries sustained by appellants have not been explained by prosecution which were produced before the trial Court vide ExD5 to ExD9. The case of prosecution is based on interested witnesses despite, the trial Court has erred in convicting and sentencing the appellants. The incident took place in the night and there was no sufficient light and the prosecution has utterly failed to 8 CRA Nos. 1025 of 2010 & 1030 of 2010 explain the aforesaid situation in the spot map. The case was of free-fight, therefore, provisions under Section 149 of IPC are not attracted. Rather, the overt act of the appellants/accused was required to be considered. Hence, prayed to allow the appeal.
(11) Per Contra, the learned State Counsel opposed the submissions made on behalf of the appellants and submitted that the Trial Court has rightly convicted and sentenced the appellants. Hence, no case is made out for interference and prayed for dismissal of both the appeals.
(12) Heard the learned counsel for the rival parties and perused the record.
(13) It would be appropriate to throw light on the 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 9 CRA Nos. 1025 of 2010 & 1030 of 2010 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 of the 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."10 CRA Nos. 1025 of 2010 & 1030 of 2010
Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of deceased 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 11 CRA Nos. 1025 of 2010 & 1030 of 2010 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 12 CRA Nos. 1025 of 2010 & 1030 of 2010 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 13 CRA Nos. 1025 of 2010 & 1030 of 2010 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 CRA Nos. 1025 of 2010 & 1030 of 2010
(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 15 CRA Nos. 1025 of 2010 & 1030 of 2010 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 16 CRA Nos. 1025 of 2010 & 1030 of 2010 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.
17 CRA Nos. 1025 of 2010 & 1030 of 2010(23) 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. (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 18 CRA Nos. 1025 of 2010 & 1030 of 2010 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 19 CRA Nos. 1025 of 2010 & 1030 of 2010 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 20 CRA Nos. 1025 of 2010 & 1030 of 2010 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 21 CRA Nos. 1025 of 2010 & 1030 of 2010 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 22 CRA Nos. 1025 of 2010 & 1030 of 2010 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 23 CRA Nos. 1025 of 2010 & 1030 of 2010 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 24 CRA Nos. 1025 of 2010 & 1030 of 2010 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 25 CRA Nos. 1025 of 2010 & 1030 of 2010 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) In the light of above enunciation of law laid down by 26 CRA Nos. 1025 of 2010 & 1030 of 2010 Hon'ble Apex Court, the evidence available on record in the present case is considered.
(33) Section 323 of IPC reads as under:-
"323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
Section 324 of IPC reads as under:-
"324. Voluntarily causing hurt by dangerous weapons or means. --Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
(34) Now, it would be appropriate to read the relevant provision at this juncture as to whether the accused can be convicted under Section 149 of IPC or not?
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 27 CRA Nos. 1025 of 2010 & 1030 of 2010 person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
(35) 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. (36) 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. (37) 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.
(38) In the matter of Dani Singh v. State of Bihar [(2004) 13 28 CRA Nos. 1025 of 2010 & 1030 of 2010 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 29 CRA Nos. 1025 of 2010 & 1030 of 2010 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."
(39) In Mahadev Sharma v. State of Bihar [(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."
(40) 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 30 CRA Nos. 1025 of 2010 & 1030 of 2010 common object, which is the offence.
(41) In Kuldip Yadav vs. State of Bihar [(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.
(42) So far as question of free-fight is concerned, in the case of State of Bihar vs. Ishwar Chand Rai and Awadh Bihari Rai, reported in (2008) 3 PLJR 60, it has been held as under:-
''22. This brings me to consider whether it could be a case of free fight as was contended to be the case by Shri Singh. If one visualizes a free fight, one could simply find as to what could it be. A free fight can be a fight between two warring groups of variously armed persons who are out to prove their point right or others' wrong by sheer exhibition of criminal force. Men are armed with dangerous weapons and they have no fixed persons to be targeted, it is all among the adversary who have to be attacked and defeated. Here in such a situation there is never any sharing of common object or acting in furtherance of common intention by persons who slug it out against each other. Sharing of the common object always envisages the pre determination of committing the very offence. Likewise, acting in furtherance of common intention pre-supposes pre-meeting of minds and determining the ultimate aim which a person wants to achieve. In a free fight, there is no common object, there is no pre-concerted sharing of minds and the acts following accordingly. Here an issue which is to be settled could be something different from a common object or common intention which the parties have to prove or disprove or to establish or repel. In most of such cases, it could be sharing 31 CRA Nos. 1025 of 2010 & 1030 of 2010 of a particular goal by a particular group of persons and acting accordingly to achieve the goal by repelling the adversary's attack and for establishing their supremacy over their adversaries and thus achieving the goal so fixed. In all such cases there could be a group leader who plans every thing and who has the say in all matters, even in fixing the goal, which in most cases is to impart defeat to the adversary group. In such a fight there is attack and counter attack as is in an on-going battle.
23. The Supreme Court in two of their decisions have defined "free fight". In AIR 1954 SC 695 Gajanand v. State of Uttar Pradesh, a similar contention was raised that the two groups of Anjani Nandan and the appellant Gajanand had come on to a particular street and not at the place of occurrence as claimed by the prosecution. Blood marks were found in the street which indicated that the parties had indulged in free fight. The definition of "free fight" given by the Lahore High Court in Ahmad Sher vs. The Emperor AIR 1931 Lah, 513 was approved by the Supreme Court. The Lahore High Court had defined "free fight" as the situation:
when both sides meant to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. (underlining mine)
24. In yet another case of Dharman v. State of Punjab AIR 1957 SC 324, the question being examined by the Apex Court was as to whether the accused acted in exercise of their right of self defence or was it an intentional act of murder.
25. The Supreme Court held in paragraph-7 at page 326 of the Report that it appeared from the evidence that "the deceased party was also armed with dangerous weapons and when two such contending parties, each armed with sharp edged weapons clashed and in course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or in unusual manner. It will be otherwise if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the accused's party used sharp cutting weapons. In that case accused must be deemed to have acted in cruel or unusual manner."32 CRA Nos. 1025 of 2010 & 1030 of 2010
(underlining mine) Thus the elements of free fight are that there should be two warring groups and that both groups should be armed with dangerous weapons. The groups should make attack and counter attack without any premeditation, or without having acted in prosecution of the common object which they were to achieve. If the fact situation of any particular case presents this scenario then it could be a case of free fight''. (43) So far as question of self of private defence is concerned, Hon'ble Apex Court in the case of Banwar Singh & Others vs. State of Madya Pradesh, reported in (2008) 16 SCC 657 has held as under:-
48. In Onkarnath Singh and Others vs. The State of UP [ (1975) 3 SCC 276], it was held:-
"36. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises."33 CRA Nos. 1025 of 2010 & 1030 of 2010
49.In State of M.P. v. Ramesh[(2005) 9 SCC 705], it was observed :-
"11. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii of any other person; and the right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence 34 CRA Nos. 1025 of 2010 & 1030 of 2010 against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence."
It was further observed :
"17. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not been devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived."
(44) In the present case, the doctor has proved that both the parties were injured in the incident and one Uday Singh died due to injuries sustained by him. From the evidence produced before the trial Court, it is also apparent that during the incident all the accused persons were armed with deadly weapons and inflicted injuries. It is also on record that on 12/01/2010 at around 08:30 pm, some altercation took place at the house of complainant Bhan Singh between Devendra and Gajendra, but 35 CRA Nos. 1025 of 2010 & 1030 of 2010 the matter was not reported. It is also apparent that Ajmer Singh inflicted injury over the head of Bhan Singh. At the same time, Jitendra Singh and Omkar Singh reached there, armed with lathi and farsa and beaten Kunwar Singh. When Vedram reached the spot, he was beaten by Omkar Singh, Rahul Singh and Ranveer Singh by means of lathi. Shivram Singh and Nanheraja have witnessed the incident.
(45) Similarly, due to previous altercation, at around 08:30 pm, Vishwanath Singh and Bhan Singh reached the field of complainant Jitendra Singh and started abusing. When he objected to it, at that time also, Uday Singh (since deceased) came there and thereafter, Vishwanath caused injury on the head of Uday Singh by means of axe. Bhan Singh inflicted lathi blows to complainant Jitendra Singh. At that time, Indraveer Singh and Devendra reached there, armed with lathi and axe and committed ''marpeet'' with the family members of complainant Jitendra, namely, Ajmer Singh & Omkar Singh as a result of which, Omkar Singh and Ajmer Singh both sustained head injuries. When Rahul Singh, Raghav and Smt. Pushpa reached there to save their family members, they were also beaten by Indraveer, Devendra and Vedram by means of lathi and axe. Vedram inflicted lathi blow to Ranveer. Thereafter, Atar Singh and Munna Singh also reached there. (46) Dr. R.L. Sharma (PW6 in ST No.167 of 2010) in his 36 CRA Nos. 1025 of 2010 & 1030 of 2010 evidence stated that on 12/01/2010 he examined all the injured persons. Dr. found two incised injuries over left and right parietal region of the head of injured Bhan Singh caused by sharp and cutting object and one contusion on the top of both shoulders caused by hard and blunt object. The report is Ex.P3.
Dr. examined injured Kunwar Singh and found one incised wound over the right frontal region of head caused by sharp and cutting object, two lacerated wounds on left side frontal region of head and right side of forehead and one contusion over left shoulder top caused by hard and blunt object. The report is Ex.P4.
Dr. Sharma examined injured Vishwanath Singh and found one lacerated wound over the left hand thumb, one abrasion over right hand little finger and one contusion over left side chest middle. All the injuries were caused by hard and blunt object and simple in nature. The report is Ex.P5.
Dr. Sharma examined injured Kalyan Singh and found one lacerated wound over the right side forehead and one contusion over right shoulder top. Both injuries were caused by hard and blunt object and simple in nature. The report is Ex.P6.
Dr. Sharma examined injured Vedram Singh and found two lacerated wounds over left parietal region of head and right ankle. Both the injuries were caused by hard and blunt object and simple in nature. The doctor opined that duration of both 37 CRA Nos. 1025 of 2010 & 1030 of 2010 injuries was within six hours. The report is Ex.P7.
Aforesaid evidence of doctor remained established in his cross-examination.
(46) Similarly, Dr.R.L.Sharma (PW8 in ST No. 55/2010), on the same day examined Uday Singh and found four injuries over various parts of the body of Uday Singh who was unconscious. As per the opinion of the doctor, Uday Singh sustained two incised injuries, one over right parietal region of head and another over ocipital region of head caused by sharp and cutting object, one contusion over the right thigh middle front and one contusion over left leg middle back caused by hard and blunt object. The report is Ex.P18.
Dr. Sharma examined injured Ranveer and found one contusion over left forearm and one lacerated wound over the left hand. Both the injuries were caused by hard and blunt object and simple in nature. The report is Ex.P19.
Dr. Sharma examined injured Ajmer Singh and found one incised wound over frontal region of head caused by sharp cutting object and one contusion over right forearm. Both the injuries were simple in nature. The report is Ex.P20.
Dr. Sharma examined injured Omkar Singh and found one incised wound over the right parietal region of head of posterior side, one contusion over right shoulder top and one abrasion over right hand palm at the base of little finger. Injury 38 CRA Nos. 1025 of 2010 & 1030 of 2010 no.1 was caused by sharp cutting object while injury nos.2 and 3 were caused by hard and blunt object. All the injuries were simple in nature. The report is Ex. P21.
Dr. Sharma, examined injured Rahul and found one lacerated wound over right side of frontal region of head and one contusion over left ankle lateral side. Both the injuries were caused by hard and blunt object and simple in nature. The report is Ex.P22.
Dr. Sharma, examined injured Raghav and found one lacerated wound over frontal region of head caused by hard and blunt object. The injury was simple in nature. The report is Ex. P23.
Dr. Sharma examined injured Smt. Pushpa and found one incised wound over right parietal region of head caused by sharp-cutting object. The injury was simple in nature. The report is Ex. P24.
Dr. Sharma also examined Jitendra Singh and found one lacerated wound over frontal region of head caused by hard and object object, one abrasion over right forearm mid-back and one contusion over left elbow caused by hard and blunt object. All the injuries were simple in nature. The report is Ex.P25. (47) Dr. Ajay Gupta (PW9 in ST No.55 of 2010) in his evidence deposed that he had conducted the postmortem of deceased Uday Singh and as per his opinion, the death of the 39 CRA Nos. 1025 of 2010 & 1030 of 2010 deceased was due to cardio-respiratory failure as a result of head injury and its complications. The death was homicidal in nature and duration of death was within 6 to 24 hours since postmortem examination.
(48) Learned counsel appearing for the appellants in Criminal Appeal No.1025 of 2010 contended that the appellants are innocent and they have falsely been implicated. Appellants in their defence have produced Ex.D4 to Ex.D1 including the copy of FIR of cross-case and postmortem report of the deceased Uday Singh. Appellants have also sustained injuries during the course of same incident.
(49) Learned counsel for the appellants in Criminal Appeal No.1030 of 2010 contended that the prosecution case was based on interested witnesses. Despite, the conviction of appellants is perverse. The incident took place in the night and there was no sufficient light and the prosecution has utterly failed to explain the aforesaid situation in the spot map. (50) Dr. Ajay Gupta (PW9) who had conducted postmortem of deceased Uday Singh stated that he found four injuries over the body of deceased. All the injuries were ante-mortem in nature. Injury nos.1 and 4 were caused by sharp and cutting object while injury nos.2 and 3 were caused by hard and blunt object and all the injuries were sufficient to cause death in the ordinary course of nature. PW2 Ranveer Singh (in ST No.55 of 40 CRA Nos. 1025 of 2010 & 1030 of 2010 2010) in his evidence deposed that Vishwanath caused head injuries to deceased Uday Singh by means of axe. Bhan Singh caused head injuries to Jitendra. Devendra and Vedram caused injuries to Omkar Singh by means of lathi and axe. Devendra caused injuries on the head of Omkar Singh by means of lathi and Indraveer caused injuries on the head of Omkar Singh by means of axe. Further, Bhan Singh inflicted lathi blow over the head of Ajmer Singh. The aforesaid evidence of this witness remained unchanged in his cross-examination and the evidence adduced by this witness has been supported by other witnesses, namely, PW1 Jitendra, PW3 Ajmer Singh and PW4 Omkar Singh.
(51) In the light of the aforesaid discussion, it is apparent that both the parties were injured in the incident and the appellants in both the appeals had caused injuries to either side and one person, namely, Uday Singh died due to injuries sustained by him in the incident. The injuries found over the body of the deceased Uday Singh were caused with the intention to commit murder. It is also apparent from the record that there was no any such type of previous enmity was in existence which resulted into alleged incident along with the fact that the persons involved in the incident, reached one by one.
Section 142 of IPC runs as under:-
"Being member of unlawful assembly.--Whoever, being aware of facts which render any assembly an 41 CRA Nos. 1025 of 2010 & 1030 of 2010 unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly."
Therefore, considering the provisions made under Section 142 of IPC approaching to the place of incident one by one may not be the defence to the appellants and their act is also covered under Section 149 of IPC. It is also proved that the aforesaid act was done in furtherance of common object by the appellants, therefore, the trial court has rightly convicted and sentenced the appellants of both the criminal appeals. (52) Consequently, both the appeals are dismissed. The impugned judgments of conviction and sentence passed by trial Court are hereby affirmed.
(53) The appellants who are on bail, their bail bonds stand cancelled and they are directed to immediately surrender before the trial Court concerned for serving out the remaining jail sentence. The appellants who are in jail be intimated with the result of his appeal through Jail Superintendent concerned also.
With a copy of this judgment record of the trial Court be sent back immediately.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
Van
VANDANA VERMA
2022.03.26
12:23:37 -07'00'