Amerika Maurya vs State

Surendra Vikram Singh Rathore, J.—1. Shri Shrawan Kumar, learned Amicus Curiae for the appellant, and Shri Sharad Dixit, learned AGA for the State were heard at length.

Instant appeal has been preferred by appellant Amerika Maurya challenging the judgment and order dated 20.12.2003 passed by S.K. Srivastava, Additional Sessions Judge/Special Judge, SC/ST Act, Bahraich, in Sessions Trial No. 118 of 2000 arising out of Case Crime No. 47 of 1999, Police Station Nawabganj, District Bahraich, whereby the present appellant was convicted for the offence under Section 302/34 IPC and also under Section 3(2)(v) of the SC/ST Act. For the offence under Section 302/34 IPC, he was sentenced to undergo imprisonment for life and he was separately sentenced for the offence under Section 3(2)(v) of the SC/ST Act for a period of five years rigorous imprisonment and also with fine of Rs. 500/- with default stipulation of six months'' rigorous imprisonment. By the same judgment, other three accused persons namely Smt. Dhanpata @ Ram Rani, Jagdish Prasad Maurya and Nanhkoo Maurya were acquitted of all the charges leveled against them.

In brief the case of the prosecution, as disclosed in the first information report, was that the complainant Kripa Ram lodged a first information report on 24.04.1999 at the police station Nawabganj, District Bahraich, which was registered on 24.04.1999 at 0200 hours in the same intervening night alleging therein that the first wife of his uncle Ram Sumiran had developed illicit relations with appellant Amerika Maurya due to which father of the complainant and Ram Sumiran were having grudge against Dhanpata. Requests were made to them to discontinue this illicit relationship but they did not pay any attention to such requests. Father of the complainant had closed ''Hukka Pani'' of Ram Sumiran. About 10-12 days prior to this incident, "Terhawi" ceremony of the father of Ram Sumiran took place. The said "Terhawi" was not attended by the complainant''s father and other persons of his family due to which Ram Sumiran felt offended. In the night of 23.04.1999, a Panchayat was called at the residence of Bhagauti Prasad Shukla and in the said Panchayat, Bhagauti Prasad Shukla, Gomti Verma, Bhagwane, Shyamata, Badkau, Andhiram, Kashiram, Amerika Maurya (appellant) Nanhkoo Maurya, Jagdish Maurya sons of Guru Prasad Maurya, Ram Sumiran and his first wife Dhanpata, complainant and his father Ram Milan and several other persons of the village were present. At about 09.30 PM, the father of the complainant, during Panchayat went to case himself. He was followed by appellant Amerika Maurya, Jagdish Maurya, Nanhkoo Maurya and Dhanpata. Feeling apprehension the complainant also followed them. By the time Ram Milan reached in front of gate of Shyamata on the Kharanja road then Dhanpata exhorted that this man has insulted her a lot and called co-accused persons to kill him. On the exhortation of Dhanpata, Nanhkoo Maurya and Jagdish Maurya caught hold of Ram Milan and appellant Amerika Maurya gave blows with Bhujali on the neck and face of the deceased. Hearing the noise, Andhi Ram and other persons, who were sitting in the Panchayat, also reached there and in the torch light they had seen the accused persons and tried to apprehend them but all these persons taking the advantage of night became successful in making good their escape. Because of the injuries caused by appellant Amerika Maurya, the deceased died on the spot. The complainant got the first information report of this case scribed by Pati Ram Chaudhary and lodged the same at the police station in the same night at 0200 hours.

After registration of the case, the police came to the place of occurrence, took blood stained and plain earth, conducted inquest proceedings on the body of the deceased and after completing necessary formalities, the dead body was sent for postmortem.

The postmortem on the body of the deceased was conducted on 25.04.1999 at 12.30 PM and following ante-mortem injuries were found on the body of the deceased:--

"(i) Incised wound 6 cm x 1.5 cm x deep upto tongue on the right side of face cutting the mandible bone. The wound is on the right side of cheek 1.5 cm below the right angle of mouth.

(ii) Incised wound 6.5 cm x 1 cm x muscle deep on the left cheek.

(iii) Incised wound on the upper part of neck, 3 cm below the chin. Size 8 cm x 2 cm x soft tissue deep. On dissection, the hyoid bone and part of larynx were chopped off including muscles.

In the opinion of the doctor, the duration was about 1 1/2 day and cause of death was due to ante-mortem injuries causing bleeding, shock and asphyxia."

After completing the investigation, charge sheet was filed.

The defence of the appellant was of total denial and his false implication because of enmity.

In order to prove its case, the prosecution had examined PW-1 the complainant Kripa Ram, PW-2 Andhi Ram, PW-3 Bhagwane as witnesses of fact, PW-4 Dr. O.P. Pandey, who had conducted the postmortem on the body of the deceased, PW-5 Circle Officer Mahendra Pratap Singh - the Investigating Officer of this case as the case was under SC/ST Act also, and PW-6 Constable Basant Lal, who had prepared the Chik Report and GD of this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court has convicted the appellant Amerika Maurya as he was assigned the specific role of giving blows with Bhujali and causing death of the deceased. However, other accused persons were acquitted by the impugned judgment.

Admittedly, no appeal/revision on behalf of the State or the complainant has been filed challenging the said acquittal.

Learned counsel for the appellant has submitted that on the basis of same evidence learned trial court has acquitted three accused persons, therefore, the same evidence cannot be acted upon with regard to the present appellant. He has also argued that the place of incident was not visible from the place where Panchayat was going on. Learned trial court has committed illegality in convicting the appellant under Section 302/34 IPC. He has also submitted that during investigating an improvement was made and torch was shown in the hands of Jagat Maharaj. It has also been argued that different witnesses have given different reasons for calling Panchayat and prosecution evidence is absolutely silent on the point as to where from the weapon of assault came to the possession of appellant Amerika Maurya and on the strength of this submission, he has argued that the judgment of the trial court is unsustainable under law.

Learned AGA has submitted that in the instant case there is direct ocular testimony of two witnesses who have fully supported the case of the prosecution. Apart from it, PW-3 Bhagwane has not supported the case of the prosecution to some extent but he has supported the date, time and place of incident and the fact that a Panchayat was going on and these persons were present in the said Panchayat. Both the parties were well known to each other. They were on inimical terms. So it was absolutely natural for the witnesses to see and recognize the assailant even in the dim light of moon and torch. Learned trial court has not committed any illegality in convicting the appellant.

The first point to be considered is the first information report of this case. The incident of this case is alleged to have taken place at 09.30 PM and the first information report was lodged after about 4 hours and 30 minutes of the occurrence at 0200 hours at the police station. The distance of police station to the place of occurrence, as per Chik Report, was 15 kilometers. So, in the same night, the first information report was lodged with utmost promptness and this fact finds support from the inquest proceedings which were also concluded in the following morning at 07.15 AM wherein the name of the complainant was correctly mentioned and the distance from the police station was also correctly mentioned. It was mentioned in the inquest report that it was accompanied by copy of the Chik Report and GD and other papers and along with all these papers, the dead body was sent for postmortem. The genuineness of all the documents which were made annexures to the inquest report had been admitted by defence during trial. Therefore, there cannot be two opinions that first information report of this case was registered at the time as stated by the prosecution. Even in the cross examination, it has not been challenged that the first information report was anti-timed or it was not lodged at the time as claimed by the prosecution.

Great emphasis has been laid by learned counsel for the appellant that in the instant case on the basis of same evidence learned trial court has acquitted three accused persons, therefore, the same evidence cannot be held sufficient to convict the appellant.

Law is settled on the point that the maxim Falsus in uno, falsus in omnibus is not recognized in our legal system. Where chaff can be separated from the grain, it would be lawful for the Court to convict the accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Hon''ble the Apex Court in the case of Gangadhar Behera and others v. State of Orissa reported in has observed in paragraph 16 as under:--

"Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence."

On this point, reference may also be made to the pronouncement of Hon''ble the Apex Court in the case of Babu @ Bala Subramaniam & others v. State of T.N. , (2013) 8 SCC 60.

So this submission of learned counsel for the appellant has no substance because the case of the present appellant was separable from remaining three accused persons. So the Court was justified in acting upon the evidence of the same witnesses with regard to present appellant. In the instant case, the specific role of giving blows with Bhujali to the deceased was assigned from the very beginning to the present appellant while the other accused persons were assigned either the role of catching hold or exhortation. Though learned trial court has acquitted remaining three accused persons and that too without discussing the evidence regarding them but as no appeal/revision has been preferred challenging the said acquittal, we do not find it feasible to make any comment against the said acquittal as the incident of this case pertains to the year 1999.

Learned counsel for the appellant has also argued that according to the first information report the Panchayat was called because the complainant side had not gone to attend "Terhawi" ceremony, while PW-1 in his examination in chief has also given the same reason for calling the Panchayat but in the cross examination he has stated that Panchayat was of their Biradari (caste). The Panchayat was called due to dispute of Tatiya while PW-2 Andhi Ram has stated in his cross examination that Panchayat was called by him and Ram Milan because of dispute of Tatiya between Ram Milan and Ram Sumiran. PW-3 Bhagwane who, after his cross examination, was declared hostile by the prosecution has also supported the fact of Panchayat. It is pertinent to mention here that in the cross examination, it has no where been challenged on behalf of the appellant that no such Panchayat was held on the date of incident. So simply because the said Panchayat was called because of non-attending of "Terhawi" ceremony of father of Ram Sumiran or because of dispute of Tatiya becomes immaterial. The fact remains that Panchayat was held to resolve dispute between Ram Sumiran and Ram Milan.

In the trial of a murder case, the point to be considered is whether the offence was committed by the accused persons as claimed by the prosecution and whether the case of the prosecution is proved by reliable testimony of the witnesses. So it is not relevant for what purpose the Panchayat was called. Panchayat may take up more than one matter. It may be called on one point and during Panchayat other matters may also be considered. In the instant case when the factum of Panchayat has not been challenged then the reason for which the Panchayat was called has absolutely no bearing on the merits of the instant case.

Learned counsel for the appellant has also challenged the finding of the learned trial court on the basis of the statement of the PW-5 Circle Officer Mahendra Pratap Singh, the Investigating Officer of this case, who has stated that from the place of Panchayat, the place of incident was not visible. This witness has also proved the site plan prepared by him and perusal of the said site plan shows that the incident of this case had taken place at point ''A'' on the Kharanja road running in East-west direction and witnesses were also following the appellant and the other accused persons. So the witnesses and the accused persons were on the same kharanja road on which the incident had taken place. Therefore the submission of learned counsel for the appellant that from the place of Panchayat the place of incident was not visible loses all its significance. Apart from it the deceased had gone to case himself so he must have gone to a place which was not visible from the Panchayat.

PW-1 Kripa Ram in his evidence has fully supported the case of the prosecution and has assigned the specific role of giving blows with Bhujali to the present appellant Amerika Maurya and corresponding injuries were found in the postmortem examination. Repeated blows of Bhujali were given and that too on the vital part of the face and neck. The blows were given with such a force that pierced into the mouth, cut the tongue and the blow given on the neck pierced deep into the neck and fractured hyoid bone and larynx.

PW-2 Andhi Ram has also fully supported the case of the prosecution and has assigned the specific role of giving blows with Bhujali to the present appellant. He has given an eyewitness account of the incident.

PW-3 Bhagwane has also supported the date, time and place of occurrence. He has stated in his examination in chief that by the time he reached then all the persons were running and Ram Milan died on the spot. Thus, this witness, though has been declared hostile by the prosecution, has fully supported the date, time and place of incident and has also admitted the presence of the present appellant and other accused persons in the said Panchayat. He has also stated that during Panchayat the deceased went to case and Kripa Ram, the complainant, because of some apprehension/suspicion also followed as the deceased was followed by accused persons. Kripa Ram raised alarm that his father is being killed by these persons. Hearing the noise, he and other persons also reached. This witness has fully supported the case in his examination in chief. He has also stated that the night was bright and light of lantern was also there. He was declared hostile only because he has not stated that he himself saw the appellant giving blows.

Law is settled on the point that even if a witness has been declared hostile and permission is granted to the prosecution to cross examine his own witness even then his entire evidence does not stand wiped out from the record and the Court can seek corroboration of the prosecution case from his evidence.

Reference may be made on this point to the pronouncement of Hon''ble the Apex Court in the case of Rohtash Kumar V. State of Haryana reported in , (2013) 14 SCC 434 wherein Hon''ble the Apex Court has observed that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross examined him. This point has been considered in the aforementioned case in paragraph Nos. 25, 26 and 27, which reads as as under:

"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.

In State of U.P. v. Ramesh Prasad Misra and Anr. , (1996) 10 SCC 360, this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon. (C. Muniappan and Ors. v. State of Tamil Nadu , (2010) 9 SCC 567; Himanshu @ Chintu v. State (NCT of Delhi) , (2011) 2 SCC 36; and Ramesh Harijan v. State of U.P. , (2012) 5 SCC 777).

Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny."

Similar view was expressed by Hon''ble the Apex Court in the case of Paulmeli and another v. State of Tamil Nadu through Inspector of Police reported in , (2014) 13 SCC 90 and also in the case of Shyamal Ghosh v. State of West Bengal reported in , (2012) 7 Supreme Court Cases 646.

Thus, from the evidence of all three witnesses of fact the date, time, place of occurrence, holding of Panchayat and presence of appellant in the said Panchayat stands proved. The evidence of PW-1 and PW-2 also proves that the blows of Bhujali were given by the present appellant. The evidence of eyewitnesses gets strength from prompt first information report and also stands corroborated by the medical evidence.

Learned counsel for the appellant has also drawn our attention towards certain minor contradictions which have emerged in the evidence of the witnesses but minor contradictions, even in the evidence of natural and truthful witnesses, are bound to occur because the power to assess the circumstances and to reproduce them in his own words differs from person to person. On this point, reliance may be placed on the pronouncement of Hon''ble the Apex Court in the case of State of U.P. v. Naresh and others reported in , (2011) 4 SCC 324, wherein Hon''ble the Apex Court has held as under:--

"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely; errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be done of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution''s case, render the testimony of the witness liable to be discredited."

No other ground was pressed on behalf of the appellant.

Thus, in the instant case, there was sufficient and wholly reliable ocular testimony in the form of PW-1 and PW-2 to prove that appellant Amerika Maurya was the person who gave blows of Bhujali to Ram Milan which resulted into his death. It is unbelievable that the son of the deceased sparing the real assailant would involve any other person falsely only because of enmity. The date, time and place of occurrence stand also proved by the evidence of PW-3. The evidence of the witness stands fully corroborated by the medical evidence and it stands also proved that the deceased sustained Bhujali injuries on his face and neck as was mentioned in the prompt first information report. Even the source of light (torch) was also mentioned in the first information report. It was not expected to be mentioned in the first information report as to who had torch in such state of shock. Apart from it, the appellant and the witnesses were well known to each other. When there was sufficient light for the appellant to recognize his target and to aim his blows correctly then the same light would be sufficient for the witnesses to recognize the known persons. Even otherwise Panchayat was going on at a very close distance so there must be light in the Panchayat. That light must also be creating sufficient glow at the place of occurrence. Thus, the case of the prosecution, in our considered opinion, stands proved.

Facts that stands proved in the instant case bring the offence only within the purview of Section 302 IPC. Appellant followed the deceased and without any provocation gave repeated blows on vital part of the body that too with so much force that the blows caused internal damage which proved fatal. So it was an intended and premeditated act of the appellant. Bhujali is a small sharp edged pointed weapon that can be easily kept under the clothes. Appellant came in the Panchayat armed with Bhujali and with prior intention chased the deceased and gave repeated blows with great force. So the offence would be murder as it was intended and premeditated act of the appellant.

Before parting with the judgment, we would like to observe that in the instant case the charge was framed against all the accused persons under Section 302 read with Section 34 IPC. The other accused persons were acquitted and the present appellant was convicted under Section 302 read with Section 34 IPC. The prosecution has come with a definite case from the very beginning that it was the appellant who gave fatal blows and caused the death of the deceased. Therefore, the charge ought to have been framed under Section 302 simplicitor against the present appellant while the other accused persons ought to have been charged under Section 302 read with Section 34 IPC. No argument has been advanced on behalf of the appellant that because of this mistake the appellant was in any manner prejudiced in his defence. Law is settled on the point that mere defect, error or omission or absence of charge would not make the judgment invalid. Section 464 Cr.P.C. deals with such a situation which reads as under:--

"464. Effect of omission to frame, or absence of, or error in, charge. - (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

Law is settled on the point that unless and until the accused shows that he was prejudiced in his defence because of such mistake, only then defect in the charge may be of some help to him. But in the instant appeal no such argument was advanced on behalf of the appellant. The legal position is crystal clear that such defect, by itself, would not render the judgment invalid unless and until the accused is prejudiced in his defence due to such mistake in charge. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Bhimanna v. State of Karnataka reported in , (2012) 9 SCC 650, wherein Hon''ble the Apex Court in paragraphs 24, 25 and 26 has been pleased to hold as under:--

"24. In such a fact-situation, a question also arises as to whether a conviction under any other provision, for which a charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court time and again. The accused must always be made aware of the case against them so as to enable them to understand the defence that they can lead. An accused can be convicted for an offence which is minor than the one, he has been charged with, unless the accused satisfies the Court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused. (Vide: Amar Singh v. State of Haryana: , AIR 1973 SC 2221).

Further the defect must be so serious that it cannot be covered Under Sections 464/465 Code of Criminal Procedure., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges, has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge (s).

This Court in Sanichar Sahni v. State of Bihar: , AIR 2010 SC 3786, while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay: , AIR 1956 SC 33; Willie (William) Slaney v. State of M.P.: , AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh; State of A.P. v. Thakkidiram Reddy: , AIR 1998 SC 2702; Ramji Singh and Anr. v. State of Bihar : , AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab: , AIR 2006 SC 191, and came to the following conclusion:

"27. Therefore,.... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.

A similar view has been reiterated in Abdul Sayeed v. State of Madhya Pradesh : , (2010) 10 SCC 259."

In the facts of the instant case the prosecution has come with a definite case from the very beginning that the appellant was the person who gave blows with Bhujali to the deceased. The appellant was aware of this fact situation. This incriminating circumstance was put to the appellant in his statement under Section 313 Cr.P.C. where he has denied it. Since the point of prejudice in defence because of this infirmity in the charge has not been raised, therefore, this mistake becomes immaterial.

We also note one legal defect in the instant case. Learned trial Judge has convicted the appellant not only for the offence under Section 302 read with Section 34 IPC but has also convicted him for the offence under Section 3(2)(v) of the SC/ST Act and has sentenced the appellant with five years'' rigorous imprisonment and also with fine of Rs. 500/-. This approach of the learned trial Judge shows that he was not even aware of the legal provisions of Section 3(2)(v) of the SC/ST Act and before sentencing the appellant for this offence, he made no effort to go through the said section although he was presiding the special court of SC/ST Act. Section 3(2)(v) of the SC/ST Act reads as under:--

Punishments for offences of atrocities.--

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;"

Section 3(2)(v) of the SC/ST Act does not provide any substantive offence. It only provides that when an act which is an offence under Indian Penal Code falls within the four corners of this section then the minimum sentence that can be awarded for the said offence would be imprisonment for life and with fine. So, there is no question to pass separate sentence under Section 3(2)(v) of the SC/ST Act. In the facts of the instant case, there was absolutely no allegation that the offence was committed because the deceased was a member of Scheduled Caste but the offence was committed because of the enmity and not due to caste discrimination. So, this offence would not fall within the purview of Section 3(2)(v) of the SC/ST Act and the learned trial court has committed illegality in convicting the appellant separately under Section 3(2)(v) of the SC/ST Act and also awarding the sentence of five years and fine of Rs. 500/- for the said offence. The fact that the appellant was the person who was responsible for the murder of the deceased stands fully proved.

Before parting with the judgment, we would like to notice our dissatisfaction and anguish regarding the manner in which the judgment of this case has been written by the learned trial Judge. Virtually, he has not assigned any reason for relying upon the case of the prosecution and has also not assigned any reason as to why other three accused persons were acquitted. He has not considered the prosecution evidence from the point of view whether other three accused persons also shared common intention or not. Perusal of the judgment shows that on behalf of the accused persons, typed written arguments were also filed but the learned trial Judge, without considering the said arguments, has written a judgment wherein the entire prosecution evidence of three eyewitnesses has been considered in one paragraph. We do not expect such a judgment from a senior judicial officer of the level of Additional Sessions Judge/Special Judge SC/ST Act.

Because of these defects in the judgment mentioned above, we are of the view that this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant from Section 302 read with 34 IPC is hereby modified to Section 302 IPC and the sentence of imprisonment of life and fine is hereby confirmed. The conviction of the appellant under Section 3(2)(v) of the SC/ST Act and sentence awarded there for is hereby set-aside. Appellant is in custody. He shall serve out the sentence as modified by this Court.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.