Bhoop Singh and Others vs State of U.P.

Surendra Kumar, J.—Appellants one to ten, namely Bhoop Singh (A1), Ashok Kumar (A2), Shiv Narain (A3), Rakesh (A4), Gyan Singh (A5), Chandan Singh (A6), Ram Prasad (A7), Anand (A8), Dinbandhu (A9) appendaged with Gauri Shanker (A10), have approached this Court u/s 374(2) Cr.P.C. by instituting these three appeals challenging veracity and sustainability of their conviction and sentence order dated 15.1.1982 recorded by IVth Additional Sessions Judge, Agra, in S.T. No. 13 of 1981, State Vs. Anand and others, relating to Crime No. 439 of 1980, P.S. Sadar Bazar, District Agra. Learned Trial Judge, after collating evidences tendered before it during the Session''s Trial, summating facts and circumstances of the case, has held appellant Gauri Shanker (A10) guilty under Section 302 I.P.C. and rest of the appellants, (A1 ) to (A9), guilty u/s 302/149 I.P.C. and therefore has convicted them of that crime and has imposed sentence of life imprisonment on each one of them. It has further held appellants Anand (A8) & Dinbandhu (A9), guilty under Section 307 I.P.C. and, therefore, has convicted them for that crime and has imposed sentence of 5 years RI on each one of them. Learned Trial Judge has further held appellants Ashok, Bhoop Singh, Ram Prasad, Shiv Narain, Rakesh, Gyan Singh and Chandan Singh, (A1) to (A7), guilty under Section 147 I.P.C. and has sentenced them to 1 year RI with Rs.500/= fine, the default sentence being 6 months further RI. Rest of the three appellants Anand, Dinbandhu and Gauri Shanker (A8) to (A10), were convicted and sentenced U/s 148 I.P.C. for 2 years RI with Rs.500/ fine, the default sentence being 6 months additional RI. All the accused were further convicted and sentenced u/s 323/149 I.P.C. to 6 months RI with Rs.500/= fine, the default sentence being 6 months additional simple imprisonment. Learned trial court has further directed all the sentences of all the accused to run concurrently. Hence these connected appeal.

Narrated briefly, gist of prosecution case, as was mentioned by the first informant Mukesh alias Collector in his written F.I.R., Ext. Ka1, and later on testified during trial by the fact witnesses, are that Roop Lal(deceased) and Hukum Singh (injured) PW7, were real brothers. First informant Mukesh, PW1, is the son of the deceased and nephew of injured Hukum Singh, PW7. Injured Rakesh is the son of injured PW7 and nephew of the deceased and cousin brother of the informant. Satish is cousin brother of the informant and son of Naththi Lal. On the date of the incident all of these persons resided in Nai Basti locality, under P.S. Sadar Bazar, District Agra.

Accused appellants (A1),(A3),(A7) & (A10) were real sibling brothers being sons of Biranji Lal. Similarly appellants (A2), (A8) & (A9) were real brothers being sons of Bhoop Singh. (A6) is the son of Chiranji Lal and father of ( A4). All these appellant accused also resided in the same locality and were related to each other. Another accused Hari Babu, who was not tried alongwith the appellants, is the son of Ram Singh. According to the depositions of fact witnesses, Ram Singh and Chirangi Lal were uncle and were related to each other whereas Ram Singh and Prabhu Dayal were maternal cousin brothers.

It was alleged that Dinesh, s/o appellant Shiv Narain(A3), was murdered in which crime injured Hukum Singh was one of the named accused. Murder trial against injured PW7, was pending on the incident date, albeit later on PW7 was acquitted in that crime. Motivated by the said murder and to avenge the death of Dinesh, on Sunday, 20.7.1980 at about 8.30 A.M. all the accused armed with knives, iron rods and lathies, raided informant''s house from the front lane, when the informant, the deceased and injured PW7, were sitting on the erected platform (Chabutara) in front of their house. Appellants (A8,9 &10) carried knives with them, whereas (A1) was armed with an iron rod and rest of the raiders carried lathis. Ab initio, all the assailants rounded up the deceased and the injured Hukum Singh,PW7 and then dragged them towards jungle. Informant and other two witnesses present at the scene raised hue and cry, which attracted injured Satish P.W.2, Rakesh, Mahendra, Nawal Kishore, Tara Chand and Narain towards incident scene, who all had witnessed the entire episode. Hari Babu, nonappellant, instigated his associates to do away with both the rounded up persons, on which appellant Gauri Shanker (A10) assaulted deceased Roop Lal with knife and appellant Bhoop Singh(A1) assaulted him with iron rod. Appellant Anand(A8) assaulted injured Hukum Singh with knife, whereas appellant Shiv Narain (A3), Ashok (A2) and Gyan Singh (A5) assaulted him with lathies. In the midst of the incident, it is further alleged, that appellant Ram Prasad (A7) hurled another instigation call to his other associates, on which, Dinbandhu (A9) knifed the informant in left side stomach. Appellant Chandan Singh (A6) assaulted informant''s cousin brother with lathi and accusedappellant Rakesh (A4) assaulted injured Satish with lathi. After the assault assailants escaped from the incident scene. Roop Lal (deceased) and injured Hukum Singh, both had lost their consciousness sustaining injuries. With the help of local people, both of them were carried on cots and thereafter were transported in a rickshaw to the District Hospital, Agra accompanied with other injured witnesses. Deceased Roop Lal had succumbed to his injuries midway to the hospital. Rest of the injured were given firstaid in the hospital.

Informant Mukesh, PW1, thereafter got the incident''s F.I.R. scribed through Gyan Prakash and then along with Gyan Prakash came to the Police Station Sadar Bazar district Agra, in a rickshaw, where he lodged his F.I.R. at 10.35 A.M. same day, after covering a distance of four kilometres. Head Constable Ram Prakash registered the crime by preparing chik F.I.R. Ext. Ka1 and relevant G.D. entry Ext. Ka16. Both these documents have been proved by the Investigating Officer S.I. Sri Chaman Singh PW9 and Constable Clerk Ram Autar Singh PW10.

S.I. Chaman Singh PW9, commenced investigation into the crime immediately after registration of the F.I.R., penned down informant''s statement at the police station and then at his pointing out conducted spot inspection and sketched site plan map, Ext. Ka12 after his arrival at the incident spot. Plain and blood stained earth were seized by the I.O. and seizure memo, Ext. Ka13 was sketched. PW9, thereafter raided assailant'' abodes but they were at large and hence could not be apprehended. In that respect, the memo was prepared,which is Ext. Ka13. The Investigating Officer thereafter recorded interrogatory statements of the witnesses Narain Singh, Mahendra Kumar and Nawal Kishore. Dinbandhu(A9) was arrested by the Investigating Officer, who thereafter recorded statement of Mahendra Prasad Sharma, in S. N. Hospital, Agra on 20.7.1980 at 6 P.M. Investigating Officer, thereafter penned down statements of injured Hukum Singh,PW7, Rakesh and Satish, PW2. Inquest witnesses were then interrogated and their statements were taken down. Blood stained attires of the informant, which were underwear and vest (Baniyan), were seized by the Investigating Officer and a seizure memo was prepared. On 26.7.1980, the Investigating Officer gave a report for drawing up of the proceedings of attachment against accused Anand(A8), Ashok Kumar(A2), Gauri Shanker(A10), Ram Prasad(A7), Shiv Narain(A3), Rakesh(A4), Gyan Singh(A5), Hari Babu and Chandan Singh (A6). Subsequently all these accused surrendered in the court and therefore, on 14.8.1980, they were interrogated by the Investigating Officer. Concluding investigation, a charge sheet was laid against accused on 17.8.1980 vide Ext. Ka15. Noted here is the fact that Hari Babu, Gyan Singh alias Gyani (A5) and Gauri Shanker (A10) were charge sheeted as absconders. During trial I.O. had proved blood stained and plain earth as material Ext. 1 & 2.

Inquest on the cadaver of the deceased was performed by Inspector Mahendra Prasad Sharma PW8, vide inquest memo Ext. Ka7. Other relevant documents as challan lash, letters etc. have been proved by him as Exts. Ka8 and Ka9. Sealing the cadaver it was handed over to the constables Shiv Charan and Lekhraj to be carried to the mortuary for autopsy purposes.

Postmortem on the cadaver of the deceased was performed on 21.7.1980 at 3 P.M. by Dr. S.P. Mishra PW6. According to the doctor, the deceased was aged about 45 years and one and quarter day had lapsed since his demise. He had an average built body and rigorous mortis had passed off from upper and present in the lower extremities. Postmortem staining were present on back at places and decomposition of the body had not set in. His pericardium was cut under injury no. 2 and his stomach was empty. Small and large intestines contained digested food, faecal matters and gases. In doctor''s estimation, cause of deceased''s death was shock and haemorrhage due to sustained physical ante mortem injuries. Vide post mortem examination report Ext. Ka7,following antemortem injuries were detected on the cadaver of the deceased:

Contusion 1 �" x �" on the back of right hand just above the index and middle fingers.

Stab wound 2 � " x 1/2" x abdominal cavity deep on the right side back and outer side of abdomen, 3/4" above the posterior third region iliac crest, margins are clean cut, angle of the wound towards the vertebral column is contused and lacerated and angle towards front abdomen is acute.

Lacerated wound 1 �" x 1/2" x scalp deep on the right side front of head 3 �" above right eyebrow.

Abrasion 4/10" x 3/10" on the front of nose 1/2" below its root.

Abrasion 3/10" x 2/10" on the back of left arm 4 �" above back of left elbow.

Incised wound 4/10" x 2/10" x 1/10" on the front of left hand middle finger at terminal crease, nearly transverse. Margins are clean cut. Both angles are acute.

Multiple abrasions 6 �" x 4" on the back of right scapula region 2" below top of right shoulder.

Note: In the abdominal cavity at the level of lumber vertebrae No. (2) there is cut mark in the descending abdominal... at its back and right side 3/4" x 2/10" x its lumen deep."

Injured Hukum Singh, PW7, Mukesh Kumar, PW1,Satish Chandra, PW2, and Rakesh Kumar were medically examined by Dr. Sudhakar Garg PW4 on 20.7.80 in district hospital Agra, from 9 to 9.50 a.m. vide medical examination reports Ext. Ka2 to Ka5, and following injuries were detected on their persons:

"Ext. Ka 2

Injuries of injured Hukum Singh

Incised wound 1" x �" on the front of left side of chest 1" below left collar bone. Depth could not be measured. Both angle acute obliquely vertically placed. (adv. Xray).

Lacerated wound 1" x 1/10" x scalp deep on right side of skull 5 � above right ear (Adv. Xray).

Lacerated wound 2" x 1/4" x scalp deep on top of skull 4" above left ear (Adv. Xray).

Contusion 1 �" x 1" on the back of right forearm middle part with traumatic swelling 6" x 3" (Adv. Xray).

Contusion 1" x 1/2" on the outer side of right thigh middle part.

Incised wound 1" x 1/4" x muscle deep on right buttock upper part.

Opinion: Nature of injury No. (1) to (4) kept under observation and adv. Xray. No. (5), (6) is simple. Caused by No. (1) (6) by sharp edged object rest by hard blunt object. Duration fresh."

"Ext. Ka3

Injuries of injured Mukesh Chand

Incised wound 2" x 3/4" x muscle deep on the outer side of left side of chest 7" below armpit.

Opinion: Nature of injury kept under observation. Caused by sharp edged object. Duration fresh."

"Ext. Ka4

Injuries of injured satish Chand

Lacerated wound 1� " x 1/2" scalp deep on the left side skull 3� " above ear.

Contusion 1" x 1/2" on the outer aspect of left shoulder.

Opinion: Nature of injury simple. Caused by hard blunt object. Duration fresh."

"Ext. Ka5

Injuries of injured Rakesh Kumar

Contusion 5" x 1" on the front of right thigh middle part.

Opinion: Nature of injury is simple. Caused by hard blunt object. Duration fresh."

Charge sheeting of the accused resulted in their summoning and, on finding committed offences triable by court of Sessions, committal court, committed their case to the court of Sessions for trial, where it was registered as S.T. No. 13 of 1981,State Vs. Anand and others.

On 6.3.1981, learned Trial Judge charged nine of the accused u/s 302/149 I.P.C. and tenth accused Gauri Shanker(A10) under Section 302 I.P.C. simplicitor. (A8) & (A9), were additionally charged u/s 307 I.P.C. Seven of the accused (A1 to7) namely, Ashok Kumar, Bhoop Singh, Ram Prasad, Shiv Narain, Rakesh, Gyan Singh alias Gyani and Chandan were also charged under Section 147 I.P.C. and residue of three appellants namely Anand, Dinbandhu and Gauri Shanker(A8 to 10), were charged under Section 148 I.P.C. Together all the appellants were further charged under Sections 323/149 I.P.C. All the aforesaid charges were read out and explained to the respective accused, who all, after understanding them, denied the same and claimed to be tried and consequently, to establish their guilt and to bring home the charges, that Sessions trial procedural was adopted by the learned Trial Judge.

The prosecution in its effort to anoint accused guilt and bring home the charges examined ten witnesses, out of whom, injured Mukesh Kumar PW1, injured Satish PW2, Narain Singh PW3 and injured Hukum Singh PW7 testified regarding facts about the incident. Formal witnesses included Dr. Sudhakar Garg PW4, Constable Shiv Charan Lal PW5, Postmortem Dr. S.P. Mishra PW6, Inspector Mahendra Prasad Sharma PW8, Investigating Officer S.I. Chaman Singh PW9 and Constable Ram Autar Singh PW10. Dr. Sudhakar Garg PW4 had examined the injuries of the injured persons whereas Dr. S.P. Mishra had conducted autopsy on the cadaver of the deceased.

All the accused in their statements under Section 313 Cr.P.C. took a common defence of false implication because of enmity and all of them, without any exception, pleaded alibi. Appellant Anand(A8) took the defence that he had gone for doing manual work at Shahganj, Agra, appellant Dinbandhu (A9) pleaded that he had gone for tuition and was arrested by the police on 20.7.1980 at 10 A.M. from his house. Appellant Gauri Shanker(A10) pleaded that he was a Government employee in Telephone Department, Agra as an Assistant Telecom Officer and on 19.7.1980 he had taken half day casual leave and thereafter he had gone to his inlaw''s house in District Aligarh. In the intervening night between 19.7.1980/20.7.1980 at 1112 P.M., by bus, he had travelled to Fatehgarh along with his brotherinlaw Jwala Prasad because he had to meet his another brotherinlaw Dori Lal, who was incarcerated in Central jail, Fatehgarh as a life convict. On 20.7.1980, he had met Dori Lal in Central Jail, Fatehgarh and in the jail records his presence is mentioned. Appellant Bhoop Singh (A1) denied his presence at the spot and stated that he had gone to the market at the time and date of the incident, whereas appellant Ashok (A2) took the defence alibi that at the relevant time, he was at the house of his aunt in Mohalla Idgah, District Agra. Appellant Shiv Narain (A3) stated that he was at his inlaw''s house in Bai Ki Garhi, Agra and was not present at the spot whereas the appellant Rakesh(A4) pleaded that he had gone to attend the marriage ceremony in village Laskarpur, District Agra and had returned back on 23.7.1980. Gyan Singh (A5) stated that he was at his shop in Mohalla Char Rahat Baluganj, District Agra where Rationing Inspector was checking his shop. Chandan Singh (A6) appellant stated that he was on night duty in Ram Nath Export Pvt. Ltd. shoe factory and had returned back to his house on 20.7.1980 in mid noon at 12 O'' clock and was not present at the spot. Ram Prasad(A7) appellant stated that he was on duty in Ashoka Boot Factory, Sadar Bazar, Agra and was not present at the spot.

To establish their plea of alibies, two of the accused Gauri Shanker (A10) and Gyan Singh (A5), tendered six defence witnesses which included H.P. Yadav, Superintendent, Central Jail, Fatehgarh, DW1, Anand Singh Chauhan, Accountant in Telephone Department at Agra DW2, Jwala Prasad DW3, Purshottam Kashyap, Handwriting and Finger print expert DW4, Amar Singh, Marketing Inspector, Agra DW5 and Dori Lal DW6.

As has already been recorded herein above, learned Trial Judge after critically analysing evidences, facts and circumstances of the incident held the appellants guilty of the charges framed against them and consequently convicted and sentenced them accordingly by means of impugned judgment and order, which judgement and order is now under challenge in the instant appeal by the convicted accused.

On the uptillnow narrated background facts we have heard Sri G.S. Hajela, learned Advocate, assisted by Sri R.P. Dwivedi, advocate for the appellants and Sri Rama Shanker Yadav, learned A.G.A. for the respondent State.

Since it was informed by appellants counsel, therefore ab initio, we record that so far as Criminal Appeal No.589 of 1982, Gauri Shankar(A10) Vs. State is concerned it stands abated, as in that appeal sole appellant Gauri Shankar(A10) has expired. Similarly, in other two connected appeals, appellants Bhoop Singh(A1), Chandan Singh(A6) and Ram Prasad(A7) have died and hence their appeals in Criminal Appeal No. 250 of 1952, also stands abated vide orders dated 8.12.1994, 8.7.2008 and in 1991. Appellant Anand (A8) has also expired and therefore, his appeal, in Criminal appeal No. 576 of 1982, was abated on 9.4.2012. This has now left this Court to consider the appeals of appellants Ashok Kumar (A2), Shiv Narain (A3), Rakesh (A4), Gyan Singh (A5) and Dinbandhu (A9) only.

Both the counsels did not assail the impugned judgement on the merits of the incident and they harangued and confined themselves only to some legal submissions, which, according to them were culled out from the oral and documentary evidences on record. Their maiden contention was that no unlawful assembly came into being and therefore, sections 147/148/149 I.P.C. could not have been applied by the learned trial Judge to hold the appellants'' guilty and convict them. Second limb of their argument is that even, on admitted facts, it is not born out from the evidences with any degree of certainty that all the accused shared commonality of object to commit murder and in furtherance of that object they had formed unlawful assembly, if at all it came into being. Elaborating and supplementing the contention it was urged that no unlawful assembly with the common object to murder the deceased was formed and hence appellant''s conviction u/s 302/149 I.P.C. is unsustainable. At the worst, critical appreciation and vetting of evidences indicates that the crime committed by the accused will not fall outside the purview of section 304 (1)/ 325 IPC. Third and last submission was that appellant Rakesh (A4) and appellant Dinbandhu (A9) were minors on the date of the incident and hence, they could not have been convicted and sentenced to imprisonment by the learned trial Judge. Primarily on the aforesaid contentions, it was urged before us that the appeal of the appellants be allowed and they be either acquitted of all the charges or their crime be scaled down and mollified suitably and their sentences be also palliated and /or altered accordingly.

Learned AGA arguing to the contrary, supported impugned judgement and order and canvassed that one person had lost his life because of murderous assault launched by the appellants jointly and therefore, their crime is well within the ambit of section 302/149 I.P.C. and impugned judgment of conviction and sentence does not suffer from any infirmity either of facts or of law and therefore, does not call for any interference by this court and resultantly appeals of all the surviving appellants, being merit less, be dismissed.

We have given a thought to the rival submissions in the light of oral and documentary evidences on record of the trial court and urged submissions. We ourselves have scanned trial court record cautiously.

Dealing with appellants submissions in a seriatim, at the outset, we find that the first castigation that no unlawful assembly existed or came into being during execution of the incident sans any merit and is without any substance. Prosecution has alleged right from the very beginning that eleven appellants variously armed with lethal weapons like knife, iron rod and lathi had raided the house of the informant, when informant, deceased, and injured PW7 were at their platform (chabutra) in front of their house. Assailants firstly rounded up the deceased and the injured Hukum Singh PW7 and dragged them to a lonely place. Informant and other witnesses raised rescue shouts but it all fell on appellants deaf ears. At the instigation of Hari Babu, deceased was assaulted by Gauri Shankar (A10) with knife and Bhoop Singh (A1) with iron rod. Assault by Gauri Shankar (A10) had caused fatal injury to the deceased because of which, before he could be administered any medical aid, he left for his heavenly abode. It is evident that rest of the injuries sustained by the deceased were simple in nature. Nevertheless, all the accused persons indulged in the assault. Assault on the deceased was followed by belabouring of Hukum Singh PW7 with knife by the appellant Anand (A8) and by rest of the three appellants Shiv Narain (A3), Ashok (A2), Gyan Singh (A5) by lathis. Both the assaults were made in the same transaction and woven together inextricably and cannot be separated and hence there is no difficulty in concluding that they formed part of the same transaction. All the appellants had arrived at the incident place together and together they had retreated from the incident place after making assault. Thus existence of id idum, prior to the incident, is well perceptible and writ large on the evidences on record. Amidst incident appellant Ram Prasad (A7) hurled another instigation call because of which, informant Mukesh PW1 and injured Satish, PW2, were also assaulted by Dinbandhu (A9) and appellant Rakesh (A4). Such cohesive action by all the accused persons, unerringly without any ambiguity projects commonality of purpose harboured by the accused and hence common object pervaded amongst the assailants conglomeration prior to the assault made by all of them. In such a fact scenario, we have no doubt in our mind that they did form an unlawful assembly and therefore, each one of them is liable for the act committed by their other companions. Applicability of section 149 I.P.C. therefore, is well anointed and impugned judgement, to that extent by the learned trial Judge, does not suffer from any error. Hence conviction of appellants under sections 147 and 148 does not required any alteration.

The first submission by appellants'' counsel therefore, is hereby repelled.

Coming to the second limb of the argument that on the facts and circumstances of the case and evidences tendered during the trial by all the four fact witnesses informant Mukesh Kumar, P.W.1, injured Satish Chand, P.W.2, Narain Singh, P.W.3 and injured Hukum Singh P.W.7, the crime committed by the appellants will not travel beyond the scope of section 304 Part (I) or 325 I.P.C., we find some substance in the said argument for ostensible reasons which we record herein below.

First of all, no enmity existed with the deceased and the injured P.W.2 vis a vis all the accused. Deceased himself was not an accused in the murder case of Dinesh S/O appellant Shiv Narain (A3) and hence there seems to be total absence of any viable reason for all the appellants to annihilate the deceased and form an unlawful assembly for that purpose. Next circumstance is that real accused who should and could have been an eye sore for the appellants was PW7, who was an accused in the murder trial of Dinesh, but he was left alive by causing him minor injuries only. If the accused had any grouse it was more against PW7 rather than the deceased. Albeit Hukum Singh, P.W.7 was rounded up along with the deceased but was spared only with causing of simple injuries although on vital part of his body. No Xray or other material has been brought on the record to indicate that accused definitely intended causing of murder. The evidence that injured Hukum Singh went in delirium after sustaining the injuries is without any convincing evidence. No documents in that respect was brought on the record. Another and further circumstance is that the deceased was assaulted only by two accused Gauri Shankar (A10) and Bhoop Singh (A1). Gauri Shankar (A10) was armed with a knife whereas Bhoop Singh (A1) wielded a sariya. Rest of the accused who were variously armed did not even attempt to assault the deceased Roop Lal. In such a view, it is very difficult to perceive that all the accused shared commonality of purpose of causing death of the deceased. They do not seem to have formed unlawful assembly to annihilate the deceased. What can be said with conviction and certain amount of assurance is only this much that all the accused possessed requisite knowledge that in the assault death might be the likely outcome. Deceased had sustained only a single fatal injury, which also does not indicate pervading of common object to commit murder. Incident had occurred to avenge the death of son of appellant (A3) but real accused of that crime was spared with simple injuries. All the injured were also left by causing of simple injuries and hence none of the accused had any motive to murder the deceased. Further it is evident from the record that none of the accused had repeated any blow and each one of them was contented only with a single blow which also dissipates allegation of carrying an intention to commit murder. Amongst three persons carrying knives only one of them had assaulted the deceased and rest of the two had not even attempted to cause any injury to him and hence it cannot be said that all the members of unlawful assembly had intended to cause death of the deceased. Those accused wielded blunt objects did not use sufficient force to cause grievous hurt, which additionally indicates absence of any intention to cause murder. All these unchallenged evidences compels us to opine that appellants conviction u/s 302 I.P.C. is not warranted as their crime will be circumscribed well within the purview of section 304 part (I) I.P.C. only. The assembly committed offence of culpable homicide not amounting to murder and it''s members can be held liable only for that crime. Consequently we are of the view that guilt of the accused has to be mollified and diluted as it is not perceivable that if eleven person harboured an intention to commit murder, why they will be satisfied only by causing one or two simple injuries and only one fatal injury in total disregard to their such an intention. In such a view, we are of the opinion that unlawful assembly had no intention but knowledge of death being the likely outcome.

Learned AGA made a gallant but futile attempt to convince us regarding sustainability of the impugned judgment but, we are unable to accept his contentions for the reasons recorded herein above. In our above view we draw support from following apex court decisions.

In Laxminath v. State of Chhattisgarh:AIR 2009 SC 1383 it has been held by the apex court as under:

"20. Considering the factual scenario and the facts that one arrow was shot the offence is covered by Section 304, Part I, IPC and not Section 302, IPC. Though it cannot be laid down that whenever one arrow is shot Section 302, IPC will not apply, on the facts of the present case it appears to be so. Therefore conviction is altered from Section 302, IPC to Section 304, Part I, IPC. Custodial sentence of eight years would meet the ends of justice."

In Ramchandra Dhondiba Kaware v. State of Maharashtra: AIR 2009 SC 1835 it has been held by the apex court as under:

". It appears that the accused and the deceased were in inimical terms. Only one blow was given with the yoke in the night. PW4 has categorically admitted that it was dark, but he identified the accused because he was known to him. Number of injuries is always not a determinative factor regarding applicability of Section 302, IPC. The nature of the weapon, place where it was struck and several other relevant factors throw light on this aspect. Considering the background facts of the present case according to us the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice."

In Balkar Singh v. State of Uttarakhand:AIR2009 SC ( Suppl) 1457 it has been held by the apex court as under:

"20. If the background facts are considered keeping in view the principles of law as noted above, the inevitable conclusion is that the offence is not covered by Section 302, IPC and the proper conviction would be under Section 304 Part I, IPC. Custodial sentence of 8 years would meet the ends of justice in the peculiar facts of the case."

In Bangaru Venkata Rao v. State of A. P.:AIR 2008 SC ( Suppl) 426 it has been held by the apex court as under:

"............In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs come out. In view of the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been rightly held to be inapplicable.

Considering the factual background, in our considered view the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice."

Wrapping up our discussion we conclude by partly dismissing appellants appeal so far it relates to their recorded convictions and sentences u/s 307 and 323/149 I.P.C. and affirm the same as is recorded in the impugned judgement and order. Hence conviction of the appellant Dinbandhu(A9) under section 307, 148 and 323/149 IPC, and of rest of the appellants Ashok Kumar(A2), Shiv Narain(A3),Rakesh(A4), Gyan Singh(A5) u/s 147 and 323/149 I.P.C. are affirmed. Sentences awarded to these appellants in respect of these offences also does not require any modification as it cannot be said to be excessive or exorbitant or not commensurate with the guilt of the appellants and hence are approved.

However convictions of all these appellants Ashok Kumar(A2), Shiv Narain(A3),Rakesh(A4), Gyan Singh(A5) and Dinbandhu(A9) under section 302/149 I.P.C., since unmerited and unsustainable, are scored out and instead they are convicted u/s 304 part(I)/149 I.P.C. The sentence of life imprisonment imposed on them, except appellant Rakesh( A 4), is also palliated to rigorous imprisonment for 7 years RI with fine of Rs.20,000/ on each of these appellants Ashok Kumar(A2), Shiv Narain(A3), Gyan Singh(A5) and Dinbandhu(A9) u/s 304(I)/149 I.P.C. In the event of default in payment of fine each of these four appellants shall serve additional imprisonment of 2years R.I., which in our opinion will meet the ends of justice. In case, fine is deposited by them, half of the total amount shall be given as compensation to the informant for the injuries caused to him.

At this juncture we take up the submission that appellant Dinbandhu(A9) be conferred the benefit of U.P. Children Act, we are not inclined to take such an opinion, as there is no credible material for that submission. His age is mentioned as 19 years which could be even more. He will be 17 years of age at the time of the incident. U.P. Children Act take within it''s fold only those juvenile offenders who were below 16 years of age on the date of commission of offence. We record additional reason for our this view that the appeal was filed in 1980. During the trial Dinbandhu(A9) never tried to claim juvenilility. For 30 years no materials or documentary evidences or other circumstances have been produced before us to confer him the benefit of Children Act and therefore, we decline to give the benefit of U.P. Children Act to the said appellant.

Now turning towards the sentence of appellant Rakesh(A4), we find that the learned trial Judge has mentioned his age as 17 years in the impugned judgment, which has not even been challenged at all. In his statement under section 313 Cr.P.C. also, the same age has been mentioned by the said appellant. This was after two years of the incident and therefore, on the date of the incident, the said appellant seems to be a child and therefore, taking compassionate opinion in his respect, we confer him the benefit of U.P. Children Act as was then in vogue. Appellant Rakesh (A4) though is held guilt under sections 304 (I)/ 149, 147, 323/149 I.P.C. but on these scores his sentences are quashed. Appellant Rakesh(A4) is in jail. He is directed to be released from jail and be set at liberty forthwith unless is wanted in any other crime. Bail bonds and personal bonds of this appellant Rakesh are hereby cancelled.

Two of the appellants Shiv Narain(A3) and Ashok(A2) are in jail, they shall remain in jail to serve out their remaining part of sentences. Appellant Dinbandhu(A9) is on bail. He is directed to surrender or be taken into custody and lodge in jail to serve out remaining part of his sentence.

All the appeals are decided as above.