Bombay High Court
Chandru Parappa Kumbhar vs The State Of Maharashtra on 30 March, 1994
Equivalent citations: 1995CRILJ290
JUDGMENT Saldanha, J.
1. A curious and somewhat interesting point has been canvassed in this criminal appeal which essentially revealves around the question as to whether in a case where multiple injuries, none of them of a grave nature, have been inflicted and the victim has died as a result thereof, wheather a conviction under Section 302, of the Indian Penal Code is sustainable. For purposes of that proposition, one need to further state that the injuries in question are on non-vital parts of the body and in these circumstances the moot point that arises is as to whether in the absence of specific evidence that any of these injuries were sufficient in the ordinary course of nature to cause death, it would be correct in law to sustain the conviction awarded by the trial Court under section 302, of the Indian Penal Code. The subsidiary issue canvassed was with regard to an allegedly defective charge and its effect on the trial, if the point is raised for the first time at the appellate stage. Where it is contended that the charge is defective and it does appear to be so, whether that aspect alone would be sufficient to vitiate the trial or whether it is to be regarded as a mere irregularity that is essentially curable. We need to first recount the brief facts.
2. The incident in question took place at about 9-30 p.m. on the night of 2-5-1988 at Kumbhar Galli Chowk, Rajgalikhurd. It is alleged that there was some dispute going on in the Kumbhar Family with regard to the occupation of the family house. Pursuant to that dispute, it is alleged that the deceased Jotiba on that night after completing his dinner made his way from his house to the Chowk where a panshop was located. The Accused, who are also from the same clan, are alleged to have followed him and mercilessly assaulted him. Accused No. 1 is alleged to have used a stick. Accused No. 2. Koyta and Accused No. 3 a knife. The prosecution witnesses allege that these three persons assaulted Jotiba with the weapons in question as a result of which there was a commotion. According to the witnesses, accused Nos. 4, 5 and 6 were instigating accused Nos. 1, 2 and 3 to continue to assult and not to leave Jotiba alive. Jotiba's wife Shantava (PW 7) and his mother Gangavva (PW 10) had rushed to that spot on hearing the commotion and they allege that in trying to rescue Jotiba they had also sustained certain injuries. According to the witnesses, Jotiba died on the spot and, therefore, there was no question of taking him anywhere for medical assistance. It is also contended that the matter was reported to the Police Patil, but since the village in question was located in a relatively remote area that it was only in the next morning that the witnesses could make their way to the Police Station and the First Information Report was lodged at 11-15 a.m. on the next day, i.e. after 14 hours. The Police thereafter commenced their investigations and arrested the six accused persons. According to the prosecution, in the course of the investigation, accused No. 2 made a statement that he would produce certain weapons and pursuant to the statement he led the Police and the Panchas to a particular place in the farmland from where the stick, the sickle and the knife were produced. There is, however, no evidence to indicate that these weapons were sent for chemical analysis. On completion of the investigations, the six accused were put up for trial and the learned Additional Sessions Judge, Kolhapur framed charges against them under sections 302, 325 and 324 read with Section 149, of the Indian Penal Code.
3. The defence of the accused was one of total denial. According to them, the deceased Jotiba, who owned a panshop, used to also sell soda-water from his shop and that persons who were given to the consumption of alcohol used to frequent that place and it is alleged that in the course of some dispute including the persons who were already drunk that Jotiba came to be assulted and that because of the background of the house dispute, Jotiba's relatives had falsely implicated the accused. The learned trial Judge disbelieved the evidence and convicted all the six accused under Section 302, read with Section 149, of the Indian Penal Code and awarded them a sentence of imprisonment for life and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for three months as also under section 324, read with Section 149, of the Indian Penal Code and awarded to each of them rigorous imprisonment for six months and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for one month. It is against this set of conviction and sentences that the present appeal has been directed. We may mention at this stage that accused Nos. 4 and 5 were granted bail by this Court at the time of the admission of the appeal, apart from other reasons, because they were women. Accused No. 6, who was an old man, died in the Jail and hence as far as he is concerned, the appeal abates. Accused Nos. 1, 2 and 3 continue to be in custody and we, therefore, restrict the consideration of this appeal to original accused Nos. 1 to 5 only.
4. Shri Pradhan, learned Counsel appearing on behalf of the appellants, has taken us through the entire evidence in this case which consists of as many as eleven witnesses, apart from the Investigating Officers. Most of these persons, as we have indicated, are family members and relatives and are persons residing in that area itself. We refrain from reproducing the details of the evidence of these witnesses, principally, because it follows a common pattern. They allege that accused No. 1 assulted the deceased Jotiba with a stick, accused No. 2 with a Koyta and accused No. 3 with a knife, that these were the three persons who were taking part in the assault, that accused Nos. 4 and 5, as also accused No. 6, were actively instigating them, goading them on and kept on insisting that Jotiba should he beaten up until every sign of life in him was extiguished. The cross-examination of these witnesses does not yield anything substantial from which it could be safely concluded that their evidence lacks total credibility. From this angle, therefore, Shri Pradhan has concentrated his attack on pointing out within aspects of the matter to us which are of some consequence. He stated that, admittedly, the first information report was lodged at 11-15 a.m. on the next morning, which was about fourteen hours after the incident, and even if there was a valid ground for the delay that the prosecution has not tendered any such explanation, which is a legal must. He therefore, submitted that the first information report that has been lodged by the wife Shantavva (PW 7) is necessarily suspect. As pointed out to us that in the background of hostility that existed between the two factions that there was every possibility and, in fact, a strong probability that the persons would have falsely implicated the accused. He demonstrated to us that in the first information report, the names of accused Nos. 4 and 5, do not appear. It is true that in the evidence before the Court, necessary steps have been taken to ensure that accused Nos. 4 and 5 are specifically mentioned as the persons who were instigating the other accused. However, the fact remains that their names do not appear in the first information report. Shri Pradhan, therefore, vehemently submitted that as far as they are concerned, it would be wrong and impermissible to hold that they were, in fact, the participants in the incident. On probability, he submitted that even if the manfolk were to get into a physical quarrel that it would be too much to expect that the woman would instigate them in a murderous assult.
5. Shri Palekar, the learned A.P.P., has sought to explain away the time factor by stating, on instructions, that there was virtually no means of transport available to the poor villagers and that the matter was reported to the Police Patil on the same night. He submitted that the distance was something like 35 Kms. away from the Police Station and that, therefore, the delay should not come in the way of the prosecution. We do need to record here that the sacred duty of the prosecution is a duty which has to be discharged before the trial Court and not the Appeal Court and that any valid or cogent explanation that may be available or valid ground on which important factors like delay can be offset must be placed before the trial Court. Long delay in the lodging of first information report is almost a fatal circumstance in a criminal prosecution. Having regard to the generality of the situation, however, we accept the position that the remoteness of the area could have contributed to some delay, but we cannot overlook the fact that undisputedly the villagers, and particularly the family members, must have been in consultation with each other and we, therefore, cannot rule out the possibility of accused Nos. 4 and 5 having wrongly been implicated. The same would apply to original accused No. 6, to whom no overt act is attributed specifically as far as the assult is concerned but who is also mentioned as one of the instigators obviously because he was the elder member of that faction. Having regard to this situation, we do consider that it will be necessary in law to give the benefit of doubt to original accused Nos. 4 and 5 in the peculiar and special circumstances of this case.
6. We now propose, before examining the culpability or otherwise of accused Nons. 1, 2 and 3, to deal with two points of law that have been raised by Shri Pradhan. In the first instance, he submitted that the form in which the charge is framed, particularly in trials relating to serious offences, is sacrosanct and that if there are basic defects and infirmities in the charge, it would be sufficient to vitiate the entire trial. This is, undoubtedly, the general principle of law but one which will have to be applied with some degree of caution. We have, therefore, examined the charge in the present case which is at page 23 of the paper-book and it is the contention of Shri Pradhan that a perusal of the charge in question will indicate that the learned trial Judge has not specifically indicated under heads 1 and 2 as to what precisely was the offence with which the Accused were charged in respect of these two heads. It is true that after the narration under head 3, the learned trial Judge has set out an omnibus statement that the accused have committed offences punishable under sections 302, 325, 324 and 149 of the Indian Penal Code. Shri Pradhan has submitted that it is a requirement of law that each head of charge must contain a very clearcut narration of the ingrediants that constitute the particular offence after which it must be set out as to what exactly the offence is under that particular head of charge. In so far as this has not been done under head 1 and head 2, Shri Pradhan submitted that the charge is defective and that, therefore, it would be sufficient to vitiate the trial. In response to this argument, Shri Palekar, the learned A.P.P., has raised a twofold contention. In the first instance, he submitted that it is basically a minor technical error at the very highest and that it does not in any way effect the validity of the trial. Secondly, Shri Palekar submitted that the charge taken as a whole does convey to the accused as to what precisely are the various offences with which they are accused of. In sum and substance, Shri Palekar's submission is that at the highest what has happened is an irregularity and not an illegality that would vitiate the trial. In this regard, Shri Palekar has drawn our attention to a judgment of this Court in the case of Pandurang Punappa Kare v. State of Maharashtra, (1993)(1) Bom CR 571. A Division Bench of this Court in that proceeding held as under :-
"A mere defect in the framing of the charge, in fact, non-framing of a charge, is not by itself an illegality which vitiates a trial. What has to be established is prejudice to the person prosecuted consequent to the non-framing of a charge or a defect in the charge framed."
The Division Bench at that time had relied on a decision of the Supreme Court in the case of W. Slanay v. State of M.P., .
7. A perusal of the charge in the present case will, undoubtedly, indicate that the requisite sections have not been set out under heads (1) and (2). These, however, have been set out at the end of charge (3). The short question that would arise is as to whether the accused have in any manner been prejudiced or, to put it more bluntly, whether they have been handicapped in their defence. In sum and substance, what the law requires is that at the commencement of the trial, the accused are required to be informed in the very clearcut language as to what exactly is the charge for which they have been put on trial or, in other words, that the charge must briefly set out what the prosecution alleges against them, the effects of their acts and the offences that these acts constitute so that the accused are aware of three things, firstly, the brief nature of what the prosecution has alleged against them, secondly, the provisions of law under which they are liable to be punished as a result of those acts, and lastly, the consequences of the application of those provisions. These are what we are required to define as the basic ingredients that are required to be set out in the charge. If these ingredients are virtually absent, or if they are distorted, or if they are lacking and the net result of such a situation is that the accused does not really know what cases are required to be met, then alone can the question of vitiation of proceedings come up. A mere defect in the language or in the narration or in the sequence or, for that matter, in the form of the charge would not necessarily vitiate the trial. It is in those circumstances that though we accept the position that a better job could have been done while framing the charge, we are not prepared to hold that the accused were either handicapped, prejudiced or adversely affected in the conduct of the evidence as a result of the manner in which the charges have been framed. The basic ingredients are present and to that extent, therefore, the objection that has been canvassed by Shri Pradhan with regard to the applicability of the principle of a defective charges that vitiate a trial must necessarily be overruled.
8. Next, Shri Pradhan has severely attacked the applicability of Section 149 of the Indian Penal Code. Shri Pradhan submitted that Section 149 cannot indiscriminately be applied to any case merely because the prosecution alleges that five or more persons were present or that they were supposed to have taken part in the incident. On the facts of the present case, Shri Pradhan submitted that the prosecution evidence in extremely doubtful with regard to the participation of accused Nos. 4, 5 and 6, even if for argument's sake the prosecution evidence were to be accepted against some of the remaining accused. Shri Pradhan, therefore, submitted that the finding recorded by the trial Court with regard to the applicability of section 149 of the Indian Penal Code is vulnerable and that the material before the Court would not justify this finding. Shri Palekar, on the other hand, vehemently submitted that Section 149 of the Indian Penal Code would certainly apply because the prosecution witnesses very clearly indicate that there were six persons who had taken part in the incident, that at least three of them were armed with weapons which, if used as weapons of assault, could be categorised as deadly weapons, that the whole object of surrounding and assaulting the deceased Jotiba was in order to inflict serious injuries on him, in other words to kill him, and under these circumstances that section 149 of the Indian Penal Code would squarely apply. We have already recorded a finding in the earlier part of this judgment that the names of accused Nos. 4 and 5 do not appear in the first information report. This is despite the fact that the first information report was lodged fourteen hours after the incident. There can be no manner of doubt that same amount of discussion and talk must have taken place, particularly between the widow of the deceased and those of the family members and persons who had collected there. The persons who are alleged to have taken part in the assault are not outsiders or unknown strangers. They were people living in the other section of the house itself and in these circumstances it is just not possible that the names of accused Nos. 4 and 5 would have been inadvertantly left out even if they were the participants in the offence. Their having followed the deceased Jotiba or their having been somewhere around that place is an entirely different matter, but we are only concerned with the aspect of participation in the criminal offences. Even as far as accused No. 6 is concerned, the position that emerges is that the evidence in relation to his culpability is, to say the least, doubtful. Under these circumstances, we have already held that accused Nos. 4, 5 and 6 would be entitled to the benefit of doubt and the only logical conclusion that would emerge from that situation would be that accused Nos. 4, 5 and 6 would have to be excluded from the allegation that they had participated in the assault. In this view of the matter the finding that Section 149 of the Indian Penal Code would apply on the facts of the present case is erroneous and would have to be set aside.
9. Coming to the main evidence, Shri Pradhan has first submitted that even though there are a number of witnesses in this case and even though it may be difficult for him to insist that the Court must hold that none of them could have seen the incident that the Court would have to take cognizance of the fact that they belong to one hostile faction and that the accused belong to the other one. That there was a background of some degree of dispute which had erupted into violence and the faction to which the accused belonged did, in fact, resort to violence is established from the evidence. In this background, Shri Pradhan submitted that the rule of caution would necessarily require that the Court should not accept the evidence of multiple witnesses, all of whom depose similarly, if there is a serious divergance between their evidence and the medical evidence. Shri Pradhan's contention is that a careful scrutiny of the post-mortem notes, which set out the injuries on deceased Jotiba as also the medical certificates in respect of the injuries on the person of Shantavva (P.W. 7) and Gangavva (P.W. 10), will indicate that, undoubtedly, these persons had sustained several injuries. Jotiba, for instance, had sustained as many as nine injuries, but none of these injuries are established to have been caused by a weapon having hard and blunt substance. Shri Pradhan, therefore, submitted that the witnesses categorically stated that accused No. 1, who was armed with a stick, had been raining several blows on the deceased Jotiba and that he had also assaulted the two ladies who tried to intervene. It is his contention that where a stick is used with some degree of force that it would result in definite external injuries and would in all probabilities result in serious internal injuries if not fractures. The total absence of any set of injuries under these heads in the medical evidence would, according to Shri Pradhan, totally rule out the allegation that accused No. 1 was taking part in the assault and that he was armed with a stick. Shri Palekar, the learned A.P.P., in spite of his best efforts, was unable to get over this particular hurdle. He did, however, submit to us that it is not impossible for accused No. 1, who was armed with a stick, to inflict several blows with the stick on various non-vital parts of the body which may not have resulted in the serious injury, such as a fracture, and that this was possibly the reason why the doctor has not made any special note of any other injuries. Unfortunately, in a case where the liberty of a citizen is involved, we cannot go back to the realm of conjectures and hypothesis, more so when the medical evidence is silent. That evidence will have to be strictly construed and if the documentary evidence which, undoubtedly, is more reliable and which would override even the repitative evidence of several witnesses does not establish the infliction of any stick-blows, it would not be permissible to sustain the conviction of accused No. 1. It was, however, pointed out that if accused No. 1 was, in fact, present as is deposed to by all the witnesses, even if there is no specific evidence with regard to the blows inflicted by him, his participation in the incident itself would be sufficient to indicate that he shared the common intention of accused Nos. 2 and 3 and that he would be liable to be convicted. This argument, which is advanced by the learned A.P.P., would be stretching the law too far. It is a well-settled principle of criminal jurisprudence that some overt act or some material from which it could be inferred that a particular accused, who was present, took part in the commission of the offence will be essential before even Section 34 of the Indian Penal Code can be applied. The material before us would not justify such a conclusion.
10. That leaves us with the case of accused Nos. 2 and 3. As far as these two accused are concerned, the first contention of Shri Pradhan is that if he has been able to assail the prosecution evidence with regard to the remaining accused and if he has been able to establish that out of over enthusiasm or out of deliberate malice as many as three or four persons have been wrongly implicated that the Court would also have to discard the prosecution evidence in relation to accused Nos. 2 & 3. We have set out above the various cogent reasons as to why we are inclined to give the benefit of doubt to accused Nos. 4, 5 and 6 and as to why, in our considered view, the medical evidence would have to override the oral evidence in respect of accused No. 1. This would not necessarily categorise the witnesses as complete liars. We must take note of the fact that the incident had taken place at night, that there was considerable commotion, that there was a background of hostility and that various witnesses, who have deposed, are all persons either from the same family or who are from that very particular area and whose presence is not at all doubtful. Under these circumstances, with regard to the assault on Jotiba at the hands of accused Nos. 2 and 3, we accept the prosecution evidence, which is by and large unscathed and confirm the finding of the trial Court that accused No. 2, who was armed with a Koyta, and accused No. 3, who was armed with a knife, had, in fact, taken part in the assault. The medical evidence can be clearly co-related to the weapons that have been used by them and to the injuries that have been caused. Under these circumstances, we have no hesitation in accepting the findings of the trial Court with regard to accused Nos. 2 and 3.
11. As regards the head of charge under which these two accused can be convicted, Shri Pradhan did advance certain submissions. That Sections 324 and 325 of the Indian Penal Code would apply is undisputed, but his main attack is to the applicability of Section 302 of the Indian Penal Code. Shri Pradhan submitted that the totality of the evidence in this case will indicate two very important factors, the first of them being that not a single injury was either aimed at or was caused on any vital part of the body. As a necessary consequence of this, the post-mortem notes do indicate that none of the vital organ were injured. Secondly, what Shri Pradhan indicates is that the Court would have to look at the intensity or the type and nature of the injuries that were inflicted for purposes of inferring the intention behind the assault. He submitted that if the Koyta and the knife, which were wielded by accused Nos. 2 and 3, were to be used with the intention of causing death that quite apart from aiming the blows on the vital parts of the body that these two weapons could have been used with a far higher degree of severity and intensity in causing injuries even on the non-vital area in which case it might have been difficult to argue that Section 302 of the Indian Penal Code does not apply. In this regard, Shri Pradhan submitted that a careful scrutiny of the medical evidence will be essential. He drew our attention to the fact that the evidence of Dr. Ramesh Khot (P.W. 12), which is at page 117 of the paper-book, is significantly silent with regard to very important ingredient, namely, that any of these injuries were sufficient in the ordinary course of nature to cause death. All that the doctor has opined is that the cumulative effect of these injuries would result in shock and haemorhage which, in turn, has resulted in the death of the deceased Jotiba. As a corollary to this submission, Shri Pradhan drew our attention to the reference in the postmortem notes to the effect that the food in the stomach of the deceased was in a semi-digested condition; whereas the evidence of the witnesses is to the effect that Jotiba had completed his night meal and had thereafter made his way to the panshop. Shri Pradhan submitted that the incident, according to the witnesses, had taken place immediately thereafter. The time gap, therefore, is very minimal. Shri Pradhan stated that if as a result of the assault, which was of a short duration, Jotiba died immediately that the food in the stomach would have been in an undigested condition. The fact that the food was in a semi-digested condition, according to Shri Pradhan, indicates that Jotiba must have been alive for quite sometime thereafter and it is possible that because of the unfortunate fact that no medical assistance was available to him that he ultimately bled to death. In these circumstances, he submitted that it would be wrong to uphold the conviction under section 302 of the Indian Penal Code.
12. The learned A.P.P. has countered this submission. In the first instance, as regards the stomach contents are concerned, he relied on a passage from Modi's Medical Jurisprudence And Toxicology (1988 Edition page 185 at para (3) whereunder he pointed out that the Learned Author has very clearly indicated that the digestion process can take anything up to four hours after which alone the stomach would be empty. Several factors have been indicated by the Learned Author which set out the time duration for the digestion process and one of the important aspects is the health and physical condition of the non/person concerned, and secondly, the aspect as to whether the stomach was completely empty, when the food was ingested. The learned A.P.P. submitted that under these circumstances, the semi-digested food in the stomach would not give any indication of the exact time of death. As regards this aspect of the matter is concerned, we do need to observe that there is considerable substance in the submission canvassed by Shri Pradhan when he pointed out that the fact that the food was in a semi-digested condition would clearly indicate the passage of a reasonably long period of time between the time when the last meal was taken and the death had occurred. This would, undoubtedly, support his contention that Jotiba must have been alive for quite sometime after the assault. It would also support the earlier submission canvassed by Shri Pradhan that the injuries inflicted on Jotiba were not that grievous or that serious as to send him into immediate shock and death. Had that happened, the applicability of Section 302 of the Indian Penal Code would have been difficult to dispute.
13. The learned A.P.P. has drawn our attention to a decision of the Supreme Court in the case of State of A.P. v. Rayavaradu Punnayya, . In that case, the Supreme Court was considering clause "thirdly" of Section 300 of the Indian Penal Code, which dealt with the injuries that are intended or sufficient to cause death. The argument before the Supreme Court in that case was that a sporadic assault had taken place and that there was no intention to cause death, that the death had inadvertently resulted or, in other words, that the result was accidental. The Supreme Court took special note of two factors, the first being that out of the nine injuries, there were as many as six serious fractures and three dislocations, and that the evidence indicated a brutal and merciless assault. Shri Palekar, the learned A.P.P., relying on this decision, sought to contend that the facts of the present case are very similar and that, consequently, it is the end result of the assault that is the guiding factor and that the manner in which the incident took place cannot be minutely dissected for purposes of bring the offence down.
14. Shri Palekar also drew our attention to another decision of the Supreme Court in the case of Virsa Singh v. State of Punjab, . The Supreme Court in this case was once again interpreting clause "thirdly" of Section 300 of the Indian Penal Code and its applicability and held that the inference of intention must be gathered from the nature of the injuries. The effect of seriousness or otherwise of the injury is one of the keys that would be available to a Court while deciding as to whether Section 302 of the Indian Penal Code applies or does not apply.
15. The short point that falls for our decision as far as the case of Accused Nos. 2 and 3 is concerned, and that too on the special facts of the present case, can be summarized in a proposition as to whether in the light of the evidence establishing that these two Accused armed with weapons that could come within the category of "deadly weapons" in furtherance of their common intention inflicted a number of injuries on the deceased Jotiba and where the prosecution has shown that Jotiba who was otherwise quite hale and hearty died pursuant to this assault, whether Section 302 of the Indian Penal Code would apply or not. In this regard, it would be useful to refer to the wording of Section 300 of the Indian Penal Code, which reads as follows :-
"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."
16. The aforesaid definition of "culpable homicide not amounting to murder" would clearly indicate two very basic and necessary ingredients, the first of them being the intention to cause death which, undoubtedly, can be inferred from the evidence on record and the nature of the acts. The second of them is to be inferred from the type of injuries that are inflicted and by answering the question as to whether the injuries in their very nature are sufficient in the ordinary course to cause death. Undoubtedly, these two ingredients are inter-related and intertwined. For this purpose, the medical evidence would be the predominant factor as also the supportive evidence from which a Court can decide as to whether while the assault was being perpetrated the intention of the Accused was merely to cause injuries, minor or major, or whether the intention was to kill. One of the most important and safest guiding factors in such cases would the aspect essentially as to whether the injuries were aimed at vital parts of the body or not. The type of weapons used would also be a safest guiding factor. If, for instance, the weapons of assault are so insignificant that they could never be expected to result in the death of a person, it would be difficult to hold that the intention was to kill. There can also be cases such as the present one where the weapons of deadly nature such as a knife and a Koyta are used but where these weapons are not aimed at the vital parts of the body. In such a situation the irresistible conclusion would be that the intention was in order to injure and not to kill. Similarly a Court would take very serious cognizance of the medical evidence. Where the blows are inflicted on non-vital parts of the body and where the injuries caused are relatively of a minor nature and are not inflicted with savage form and brutality, it would be impossible for a Court to hold that the intention in inflicting these injuries was in order to kill. The nature of the injuries and the manner in which these injuries are inflicted would, therefore, be the two sole deciding tests on the basis of which this Court would have to conclude as to whether Section 302 of the Indian Penal Code has justifiably been applied or not. It is the submission of Shri Pradhan, learned Counsel appearing on behalf of the Accused that even if the Court were to hold against him as regards Accused Nos. 2 and 3 vis-a-vis Jotiba that the injuries inflicted can result in a conviction under section 304 of the Indian Penal Code and not under section 302 of the Indian Penal Code. As far as this submission is concerned, we do accept the position that the conviction as far as Accused Nos. 2 and 3 are concerned would correctly fall under the second part of Section 304 of the Indian Penal Code.
17. Having regard to the aforesaid findings, the convictions and sentences recorded by the learned trial Judge as against original. Accused Nos. 4, 5 and 6 must necessarily fail and are set aside. We exclude Accused No. 6 in so far as the record indicates that he has died while in custody. The appeal accordingly succeeds as against original Accused Nos. 4 and 5. Similarly, as far as original Accused No. 1 is concerned, for the reasons recorded by us earlier, the appeal succeeds as against him also. The convictions and sentences recorded against Accused Nos. 1, 4 and 5 are accordingly set aside and it is directed that the fine, if any, paid by them shall be refunded. Accused Nos. 4 and 5 are on bail and their bail bonds shall accordingly be cancelled. As far as Accused No. 1 is concerned, since he is in custody, it is directed that he shall be set at liberty forthwith. As far as Accused Nos. 2 and 3 are concerned, they stand convicted, in the first instance, of the offence punishable under section 304, Part II read with Section 34 of the Indian Penal Code as far as the death of Jotiba is concerned. For the offence under section 304, Part II, we direct that Accused Nos. 2 and 3 shall undergo rigorous imprisonment for a period of five years and that they shall also have to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for three months. As far as the offence under section 324 of the Indian Penal Code is concerned as regards the injuries inflicted on the prosecution witnesses, we confirm the findings of the learned trial Judge and convict Accused Nos. 2 and 3 for the offence punishable under section 324 read with Section 34 of the Indian Penal Code and direct that they shall undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month. Substantive sentences shall run concurrently.
18. In the result, the appeal partially succeeds as far as original Accused Nos. 2 and 3 are concerned, they shall be entitled to the set-off for the period already undergone by them.
19. Order accordingly.