Dhanraj and Others vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 10-07-2009 passed by Sessions Judge, Kabirdham (Kawardha) in Sessions Trial No. 38/08. By the impugned judgment, accused/appellants Dhanraj, Dharmraj @ Darvan @ Konda, Rajesh @ Butiya, Gajraj @ Dhani and Daniram @ Padamraj have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

The facts, briefly stated, are as under:

Kuntibai (PW-5) and her husband Ramavtar (deceased) was engaged in a business of manufacturing bricks. Kuntibai (PW-5) and the deceased went to the forest for manufacturing bricks, two months prior to the date of incident. Appellant Dhanraj also went to the forest for manufacturing bricks alongwith his wife. Appellant Dhanraj suspected Kuntibai (PW-5) and her husband Ramavtar (deceased) that they were performing witchery (tonha) and some quarrel took place between the deceased and appellant Dhanraj. On 20th April, 2008 at about 7.00 p.m., deceased Ramavtar and Kuntibai (PW-5) were present in their house. At that time, appellant Dhanraj came to their house, Kuntibai (PW-5) asked appellant Dhanraj for taking meal. Appellant Dhanraj refused and said that she had abused him, therefore, he will not take meal at their house and abused Kuntibai (PW-5).

Kuntibai (PW-5) and deceased Ramavtar were going to Police Station Pandariya for lodging a report. When they reached near Durjabandh Tank, appellant Dhanraj, Dharamraj, @ Darvan @ Konda, Rajesh @ Butiya and Gajraj @ Dhani and Daniram @ Padamraj surrounded the deceased and Kuntibai (PW-5) and assaulted the deceased. The deceased sustained injuries on his head and fell down. His brain material came out and when Kuntibai (PW-5) tried to save her husband (the deceased), the appellants assaulted her also. At that time, Shankar (PW-6) reached there. The appellants also assaulted Shankar (PW-6). Shankar (PW-6.) ran away from the place of occurrence due to fear. Kuntibai (PW-5) came back to her house and narrated the incident to her another son Dinesh (PW-1). Thereafter, Kuntibai (PW-5) went to Police Station Pandariya along with Dinesh (PW-1) and lodged Merg Intimation (Ex. P-13) and First Information Report (Ex. P-12) in Police Station Pandariya. Kuntibai (PW-5) and Shankar (PW-6) were sent to Community Health Center (CHC), Pandariya for medical examination. Investigating Officer reached the place of occurrence, gave notice (Ex.-P/1A) to panchas and prepared inquest (Ex. P-1) on the dead body of the deceased. The dead body of the deceased was sent to CHC, Pandariya vide Ex. P-3A. Dr. S.N. Yadav (PW-3) conducted postmortem examination on the dead body of the deceased and gave his report (Ex.-P/3) finding (i) blood spread over forehead, nose, neck, chest and mouth and presence of clotted blood (ii) multiple fracture on the skull, brain material had come out from the skull (iii) abrasions (a) 8 c.m. x 3 c.m. (b) 10 c.m. x 3 c.m. � 7 c.m. x 2 c.m. on back. He opined that the cause of death was coma, due to head injury caused by hard and blunt object and the injuries were antemortem in nature. Dr. S.N. Yadav (PW-3) examined Kuntibai (PW-5) and gave his report (Ex.-P/4) finding (i) abrasion on upper lip and broken two teeth (ii) abrasions on forehead and right thigh. He opined that the injuries were grievous in nature and caused by hard and blunt object. Dr. S.N. Yadav (PW-3) also examined Shankar (PW-6) and gave his report (Ex.-P/5) finding abrasion on right shoulder and right leg.

In further investigation, memorandum statement of the appellant Dhanraj was recorded u/s 27 of the Evidence Act vide Ex.-P/15 and at his instance, lathi; a wooden/bamboo stick used as a weapon and full-pant were seized vide Ex.-P/16. Memorandum statement of appellant Gajraj @ Dhani was recorded u/s 27 of the Evidence Act vide Ex.-P/17 and at his instance, lathi was seized vide Ex.-P/18. Memorandum statement of appellant Dharamraj @ Darvan @ Konda was recorded u/s 27 of the Evidence Act vide Ex.-P/19 and at his instance, lathi, full-pant were seized vide Ex.-P/20. Memorandum statement of appellant Rajesh @ Butiya was recorded u/s 27 of the Evidence Act vide Ex.-P/21 and at his instance, lathi was seized vide Ex.-P/22. Blood stained soil and plain soil were seized from the place of occurrence vide Ex.-P/2. The seized articles were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex.-P/24 and a report (Ex.-P/26) was received therefrom. In FSL report (Ex.-P/26), it is found that article A - blood stained soil, article C1 - shirt of the deceased, article C3 - underwear of the deceased, article C4 - lungi of the deceased, article D - lathi of appellant Danraj, article E - full-pant of appellant Dhanraj, article F - lathi of appellant Gajraj @ Dhani, article G - lathi of appellant Dharmraj @ Darvan @ Konda, article H - lathi of appellant Rajesh @ Butiya were stained with blood.

After completion of the investigation, charge sheet was filed against the appellants/accused persons in the Court of Judicial Magistrate First Class, Kawardha, who, in turn, committed the case to the Court of Sessions Judge, Kabirdham (Kawardha), who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Yogeshwar Sharma, learned counsel for the appellants argued that there is no independent eye witness to the incident. Kuntibai (PW-5) and Shankar (PW-6) are widow and son of the deceased. They are interested witnesses. Golu (PW-9) was not present at the place of occurrence and he is a child and tutored witness. There are material contradictions in their statement. The appellants are falsely implicated in the case. He further argued that there is no positive evidence to show that the appellants were members of an unlawful assembly and in furtherance of the common object of the said assembly, they assaulted the deceased. The prosecution has utterly failed to prove the case beyond all reasonable doubts. Therefore, the appellants deserve to be acquitted of the charges framed against them. He placed reliance on Surajit Sarkar Vs. State of West Bengal, and Narayan Manikrao Salgar Vs. State of Maharashtra,

On the contrary, Shri Akhil Mishra, learned Additional Public Prosecutor and Shri Suryakant Mishra, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 38/2008. The conviction of the appellants under Sections 302/149, 325/149, 323/149, 148 and 147 IPC is based on the evidence of Kuntibai (PW-5) and Shankar (PW-6).

Now, firstly we shall consider whether there was any unlawful assembly and the appellants were members of the said assembly, if so, what was the common object of the assembly?

Section 149 IPC contemplates common object and Section 141 IPC defines an unlawful assembly. Section 141 IPC provides that an assembly of five or more persons is designated as an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in Section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in Section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of Section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in Sections 149 and 141 IPC have great significance. It has to be understood in contradiction with common intention. Therefore, with a view to look into the implications of Section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in Section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of Section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the acts provided in Section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of Section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in Section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. If it is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of Section 149 IPC.

In Dharnidhar Vs. State of U.P. and Others, , the Hon''ble Supreme Court held that the principles controlling the application of provisions of Section 149 IPC have been quite well settled by now. Years back, the Bench of this Court in Masalti Vs. State of U.P., declared the dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by Section 141 IPC. The crucial question to be determined in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot eo instanti. Maranadu and Another Vs. State by Inspector of Police, Tamil Nadu,

In Muthu Naicker and Others Vs. State of Tamil Nadu, while dealing the matter in relation to unlawful assembly, the Hon''ble Supreme Court held that where there is melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. The Hon''ble Supreme Court held that in a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one''s eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Reference was also made to decision of Masalti Vs. U.P. (supra).

In Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra, , it is observed that the two ingredients of section 149 are (i) commission of offence by members of unlawful assembly (ii) such offence must be in prosecution of common object of that assembly, or must be such as members of that assembly knew it to be likely to be committed. For determination of the common object of the unlawful assembly, the conduct of each of the members of unlawful assembly before and at the time of attack is relevant consideration; object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by the members and behavior of the members at or near scene of incident.

In Sikandar Singh and Others Vs. State of Bihar, Hon''ble the Supreme Court held that the common object does not require a prior concert or meeting of mind before attack. It is enough if each member has same object and all act in assembly to achieve that object. Common object has to be ascertained from acts and language of members and from consideration of all surrounding circumstances. For determination of the common object, the conduct of each of the members of the unlawful assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations.

It is on these principles, we are to scrutinize the case of the appellants and to find their participation and responsibility.

Kuntibai (PW-5) deposed that she had gone to the forest for manufacturing bricks along with her husband Ramavtar (deceased). At that time, appellant Dhanraj also went to the forest for manufacturing bricks along with his wife. She further deposed that she and her husband (deceased) were manufacturing 1500 bricks per day. Then appellant Dhanraj asked her and the deceased that they were doing witchery and some quarrel took place between them. On the date of incident, at about 6.00 p.m., she was in her house along with her husband (deceased) and at that time appellant Dhanraj came there. She asked appellant Dhanraj to take meal along with them but appellant Dhanraj refused and said her that she was a witch and abused her. She further deposed that at about 7.00 p.m., she was going to Police Station, Pandariya along with her husband (deceased), Shankar (PW-6) and Golu (PW-9) for lodging a report. Dhanraj, Butiya, Sonu and Gudda met them near Bandhataraiya Tank and they assaulted the deceased. The deceased sustained injuries on his head, back and thigh, his brain material came out and he died on the spot. The appellants also assaulted her and Shankar (PW-6).

Shankar (PW-6) deposed that at about 7.00 p.m., he came back to his house from the market. Then his father Ramavtar (deceased) and mother Kuntibai (PW-5) narrated that some quarrel took place between them and appellant Dhanraj. Thereafter, they were going to Police Station Pandariya for lodging a report. Dhani, Butiya, Daniram, Dhanraj and Dhanna met them. They were present near the puliya (culvert) and they were armed with lathi. He further deposed that the appellants assaulted his father Ramavtar (deceased). His father sustained-injuries on the head. The appellants also assaulted him with lathi. Thereafter, the appellants assaulted his mother Kuntibai (PW-5). He fled away due to fear.

In Mano Dutt and Another Vs. State of U.P., the Hon''ble Supreme Court observed as follows:

......... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.

We may merely refer to Abdul Sayeed Vs. State of Madhya Pradesh, , where this Court held as under: (SCC pp. 271-72, paras 28-30)

The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.'' [Vide Ramlagan Singh and Others Vs. State of Bihar, Malkhan Singh and Another Vs. State of U.P., 1, Machhi Singh and Others Vs. State of Punjab, Appabhai and Another Vs. State of Gujarat, , Bonkya Alias Bharat Shivaji Mane and others Vs. State of Maharashtra, Bhag Singh and Others Vs. State of Punjab, Mohar and Another Vs. State of U.P., ), Dinesh Kumar Vs. State of Rajasthan, Anna Reddy Sambasiva Reddy and Others Vs. State of Andhra Pradesh, and Balraje @ Trimbak Vs. State of Maharashtra,

While deciding this issue, a similar view was taken in Jarnail Singh and Others Vs. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa and others Vs. State of Karnataka, , this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

In State of U.P. Vs. Kishan Chand and Others, , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.

........

In Dharnidhar Vs. State of Uttar Pradesh and others (supra), the Hon''ble Supreme Court held as follows:

There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan Vs. U.T. of Pondicherry, , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24)

We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

Similar view was taken by this Court in Ram Bharosey Vs. State of U.P., , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same.

Learned counsel for the appellants argued that the conduct of Shankar (PW-6) is unnatural. He fled from the place of occurrence, therefore, his evidence is not reliable. The above argument is not acceptable.

In Kathi Bharat Vajsur and Another Vs. State of Gujarat, the Hon''ble Supreme Court observed as follows:

This Court i Appabhai and Another Vs. State of Gujarat, , held: (SCC pp. 245-46, para 11)

... Experience reminds us that civilized people are generally insensitive when a crimes committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities: One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Partap and Others Vs. State of Haryana, , Chinnappa Reddy, J. speaking for this Court succinctly set out what might be the behavior of different persons witnessing the same incident. The learned Judge observed: [SCC p. 330, SCC (Cri) p. 604, para 6]

... Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.

We are in agreement with the above observations. When an eyewitness behaves in a manner that perhaps would be unusual, it is not for the prosecution or the court to go into the question as to why he reacted in such a manner. As has been rightly observed by His Lordship O. Chinnappa Reddy, J. in Rana Pratap case, there is no fixed pattern of reaction of an eyewitness to a crime. When faced with what is termed as "an unusual reaction" of an eyewitness, the court must only examine whether the prosecution story is in any way affected by such reaction. If the answer is in the negative, then such reaction is irrelevant. We are afraid that the unusual behavior of the injured eyewitness, PW 6, will not, in any way, aid the appellants to punch a hole on to the prosecution story.

Shankar (PW-6) and Kuntibai (PW-5) specifically deposed that when Shankar (PW-6) returned home, Kuntibai (PW-5) narrated Shankar (PW-6) that some quarrel took place between them and appellant Dhanraj. Thereafter, they were going to Police Station Pandariya for lodging a report. At that time, appellants Dhanraj, Dharmraj @ Darvan @ Konda, Rajesh @ Butiya, Gajraj @ Dhani and Daniram @ Padamraj met them and they were armed with lathi. They, firstly, assaulted Shankar (PW-6) and thereafter assaulted the deceased and Kuntibai (PW-5). Doctor S.N. Yadav (PW-3) conducted the autopsy on the dead body of the deceased and opined that the cause of death was coma due to head injury caused by hard and blunt object. He also examined Kuntibai (PW-5) and Shankar (PW-6) and gave his reports (Ex.-P/4 and Ex.-P/5 respectively) finding grievous injuries on the body of Kuntibai (PW-5).

The date and time of the incident was 20-04-2008 at about 20.30 hrs. and the Merg Intimation (Ex.-P/13) and First Information Report (Ex.-P/12) were lodged within 2 hours of the incident. It appears that the First Information Report (Ex.-P/12) and Merg Intimation (Ex.-P/13) were lodged without delay. In Merg Intimation (Ex.-P/13), the names of the appellants are mentioned as assailants. In Ex.-P/13, it is specifically mentioned that:--

From the above discussion, we find that the evidence of Kuntibai (PW-5) and Shankar (PW-6) are cogent, trustworthy and reliable and are duly corroborated by the medical evidence and also by Merg Intimation (Ex.-P/13) and First Information Report (Ex.-P/12).

In the instant case, firstly appellant Dhanraj came to the house of the deceased and some quarrel took place between the deceased and appellant Dhanraj. When deceased Ramavtar, Kuntibai (PW-5) and Shankar (PW-6) were going to lodge the report, appellants Dhanraj, Dharmraj @ Darvan @ Konda, Rajesh @ Butiya, Gajraj @ Dhani and Daniram @ Padamraj met them on the way. At that time, they were armed with lathi and they assaulted the deceased. They also assaulted Shankar (PW-6) and Kuntibai (PW-5). It appears that they were waiting for the deceased and injured persons on the way and as soon as the deceased and injured persons reached there, they assaulted them. Due to the injuries sustained by the deceased, he succumbed on the spot and Kuntibai (PW-5) and Shankar (PW-6) also sustained injuries. Kuntibai (PW-5) and Shankar (PW-6) have given full description of the incident and the roles attributed to the accused persons.

On close scrutiny of the entire material available on record, it is evident that the prosecution has been able to prove that there was an unlawful assembly and the appellants were members of the assembly who, participating in rioting and in furtherance of the common object of the said assembly, assaulted deceased Ramavtar, Kuntibai (PW-5) and Shankar (PW-6) and the deceased succumbed to those injuries.

Learned counsel for the appellants submitted that the evidences of Kuntibai (PW-5) and Shankar (PW-6) reveal that they could not disclose as to who gave lathi blows which resulted into fracture i.e. fatal injuries to the deceased, therefore, all the accused persons/appellants cannot be convicted u/s 302/149 IPC. In absence of any evidence of common object to cause death and looking to the nature of injuries found on the body of the deceased, only their knowledge can be attributed and the offence committed by them would not travel beyond Section 304 Part 11/149 IPC. He placed reliance on Surajit Sarkar Vs. State of West Bengal (supra) and Narayan Manikrao Salgar Vs. State of Maharashtra (supra).

In Panchaiah and others Vs. State of Karnataka, , six injuries on various parts of the body of deceased were caused by cycle chain and club. The first injury was lacerated wound on the middle of the head measuring 2 c.ms. x 1 c.m. and bone deep. The second injury was a bruise (ecchymosis), black in colour, on the antero-laternal aspect of the right arm extending from the right shoulder joint aspect measuring 23 c.ms. x 9 c.ms. The third injury was again a bruise (ecchymosis), black in colour on the interior aspect of the left upper arm upto the left elbow joint measuring 10 c.ms. x 9 c.ms. The fourth injury was an abrasion, black in colour, on the left patella measuring 3 c.ms. x 2 c.ms. The fifth injury was also an abrasion black in colour, just middle to the injury No. 4. The last injury was again only an abrasion on the left side of the abdomen at the level of the umbilicus, 6 c.ms. The doctor opined that there was extravasation of blood just below the head injury No. 1. He opined that the death was as a result of shock and hemorrhage. He further opined that injury to the brain and the vessels was due to external injury No. 1. Injuries 1, 4 & 5 would be caused by a hit with a cycle chain. The Hon''ble Supreme Court held that the medical evidence shows that there was only one injury on the head, which was serious and the other injuries were only bruise, abrasions and if really the intention of the appellants was to cause death, they would have inflicted more serious injuries. The Hon''ble Supreme Court found that only one injury on the head which unfortunately resulted into extravasation of the blood caused injury to brain and under these circumstances it cannot be said that the accused persons had common intention to cause the death of the deceased. However, the injuries inflicted would show that they had only knowledge and in that case they are punishable u/s. 304 Part II read with section 34 IPC.

In Sarman and others Vs. State of Madhya Pradesh, , the Doctor P.W. 19 who conducted the postmortem, noticed 17 injuries. Out of them injuries No. 1, 3, 10, 11 and 14 were described as incised wounds. Though they resulted into bleeding, no other damage was noticed. It was only injury No. 15 which had resulted into a depressed fracture of parietal bone and ultimately proved in membrane puncture. Though the Doctor in general way stated that the cause of death was due to multiple injuries, he specifically stated that on injury No. 15, he noticed a depressed fracture of parietal bone which individually was sufficient to cause death of the deceased. It was a case in which the prosecution could not prove that which of the accused caused the fatal injury. The Doctor, who conducted the postmortem, while opining generally that the multiple injuries caused the death, specifically stated that the depressed fracture was individually sufficient to cause death of the deceased. The Hon''ble Supreme Court held that which of the accused had caused the fatal injury was not pointed out by the prosecution, therefore, in the circumstances, all the accused persons cannot be said to have the common object of committing the murder of the deceased, though they may have knowledge that the blows given were likely to cause death and if any one of the accused exceeded the common object and acted on his own, that would be his individual act, but in absence of evidence as to who acted so, conviction of accused/appellant u/s. 302/149 IPC cannot be sustained and sentence of life imprisonment altered to that of u/s. 304 Part 11/149 IPC sentencing 7 years'' R.I.

In Surajit Sarkar Vs. State of West Bengal (supra), the Hon''ble Supreme Court held thus:

Given the nature of injuries. It is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would, therefore, be ruled out. Nevertheless, the injuries were quite serious and inflicted by Surajit Sarkar on Gour Chandra Sarkar''s head with an iron rod, as stated by P.W. 8 Achintya Sarkar. We can surely credit Surajit Sarkar with the knowledge that if a person is hit with an iron rod on the head, then the act is likely to cause the death of the victim. That being so, in our opinion, it would be more appropriate to hold Surajit Sarkar guilty of an offence of culpable homicide not amounting to murder. Since we attribute to him the knowledge of his actions, he should be punished under the second part of Section 304 of the I.P.C.

[See also Narayan Manikrao Salgar Vs. State of Maharashtra (supra)].

In the instant case, the skull and near about 3 abrasions were found on the back of the deceased. Doctor S.N. Yadav (PW-3), who conducted the postmortem on the body of the deceased opined in his report (Ex.-P/3) that the cause of death was coma due to head injury. It was the injury No. 1 in which there was multiple fractures of skull and brain membrane and some portion of brain had also come out. Therefore, in absence of common object of the death of the deceased, in the facts and circumstances of the case, all the accused persons cannot be said to have common object to commit murder of the deceased, though they had knowledge that the blows given could likely to cause death. If anyone of the accused exceeded the common object and acted on his own, that would be his individual act, but in absence of the evidence as to who acted so conviction of all the accused persons with the aid of Section 149 u/s 302 of the IPC would not be possible. But since there is evidence of their knowledge that the blows given could likely to cause death for which they were sharing common object, they would be convicted u/s 304 Part II read with Section 149 IPC. In the result, the appeal is partly allowed. The conviction and sentence imposed upon the appellants u/s 302/149 IPC are set aside, instead thereof, the appellants are convicted u/s 304 Part 11/149 IPC and sentenced to undergo rigorous imprisonment for 10 years. However, the conviction and sentence awarded to the appellants under Sections 325/149 and 323/149 IPC, to appellants Dhanraj, Dharmraj @ Darvan @ Konda, Rajesh @ Butiya and Gajraj @ Dhani u/s 148 IPC and to appellant Daniram @ Padamraj u/s 147 IPC are upheld and the direction to run the sentences concurrently is also affirmed. The appellants shall be entitled for setoff for the period already undergone by them.