Kajal Sen and Others vs State of Assam

D.N. Chowdhury, J.—This is an appeal against the judgment and order dated 7.7.94, passed by the learned Addl. Sessions Judge, Silchar, in Sessions Case No. 9 of 1992, convicting the accused Appellants u/s 302/149 IPC as well as u/s 148 IPC and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- u/s 302/149 IPC and further sentenced them to undergo rigorous imprisonment for one year u/s 148 IPC.

The deceased, Dipak Deb alias Piklu of Purna Paul Road, Silchar, according to the prosecution, set out for a nearby "Paan" shop (Betel shop) for buying and chewing Betel-nut at about 10 PM on the fateful night of 14.12.90. Immediately thereafter, a cry for help was heard from Piklu. Smelling something ominous, the mother and brothers of Piklu left for the scene. Piklu was forcibly caught hold of by the accused persons and at their instance, Nepal thrust a Dagger on the left side of the breast of Piklu. The accused thereafter made good their escape. Piklu was thereafter immediately taken to the Silchar Civil Hospital and therefrom, he was removed to the Silchar Medical College Hospital. The Police was informed about the occurrence immediately thereafter. On the following day, Ranjan Deb (P.W. 5), the elder brother of the deceased Piklu, submitted a written FIR before the Officer-in-Charge, Silchar Police Station. In view of the serious condition of the injured Piklu, the Police requisitioned Dr Debabrata Singh (P.W. 10) for recording the Dying Declaration of Piklu which was recorded on the same night on 14.12.90. In three days from the date of occurrence, Piklu died at the Silchar Medical College Hospital. On completion of the investigation, the Police submitted charge sheet against the accused-Appellants and three others including Nepal Dey (since deceased) under Sections 147, 148, 149, 307 and 302 IPC. On committal, the learned Sessions Judge framed charges under Sections 148, 302/149 IPC and explained to the accused, to which they pleaded not guilty and claimed to be tried. During trial, the prosecution examined as many as twelve witnesses and the defence did not examine any witness. In their statements u/s 313 Code of Criminal Procedure, the accused persons denied their involvement in the offence and stated that they were falsely implicated in the case in view of their past enmity with the informant party. The prosecution in support of its case relied upon the ocular testimony of the witnesses, the Dying Declaration (exhibit 6) as well as the evidence of Dr Debabrata Singh, who recorded the Dying Declaration of the deceased, besides exhibit 7, the GD Entry No. 310 dated 14.12.90.

P.W. 1, Shri Bikram Deb, a resident of Purna Prasad Road, Silchar, stated that on the date of occurrence at about 9.30 PM, at about 9.30 after taking his food while he was preparing to retire to his bed, at that time he heard screams "Barada, Bachao, Bachao" (elder brother, save me, save me). The place of occurrence was 15/20 Cubits away from the witness. The place where Piklu was surrounded was in front of "Puma Decorous". The witness stated that he could recognize Piklu in the light of Puma Decorous. That he could not recognize the accused person who kept Piklu surrounded.

P.W. 2, Pritilata Deb, is the mother of the deceased, Piklu. She stated that on the night of occurrence, after the meal at about 9.30 PM or 10.30 PM, Piklu asked her for a "Paan". That on the said day, there was no "Paan" in the house. Piklu told the witness (mother) that he would go to the nearby "Paan" shop for taking a "Paan" and would come back soon. After sometime, Piklu came back and told that Bappa (A4) and Kajal Sen (A1) had called him to discuss something. Thereafter, Piklu went out with Bappa and Kajal Sen. On going out, the witness found Bappa in her courtyard and Kajal near the Gate. The witness tried to dissuade Piklu and asked him "where are you going so late in the night?". Kajal Sen then replied that they were going with Piklu and that after some discussion, he would return home. The witness then went back to the house and said to her sons, Nipu, Ranjan and Sujit as to why Bappa and Kajal had taken Piklu with them. That after some time, she heard the shouting "save me, save me, elder brother". Thereafter her sons, Nipu, Ranjan (P.W. 5) and Sujit (P.W. 4) went running out of the house followed by the witness. On reaching the spot, she found her son, Piklu, lying on the ground smeared with blood on the Radha Madhab Road in front of Puma Decorous. Thereafter she lost her senses. In her cross-examination, the witness admitted that her son Sujit (P.W. 4) instituted a criminal case against the accused persons alleging that they had looted his shop and that she was a witness in that case. The witness was also cross-examined relating to cases against deceased Piklu and one Babu Rai under the Arms Act in which accused Khukan Kar and accused Kajal Sen''s younger brother (Dulal Sen) were the witnesses, about which the witness expressed her ignorance.

P.W. 3, Shri Kunja Kishore Paul, is the owner of "Puma Decorous". The witness stated that on the date of occurrence, he was taking his meal at night in his house situated at the Radha Madhab Road. The witness then heard "Marilaire, Bachaore" (I am assaulted, save me). The witness then went out and found many people gathered on the road in front of his house. The witness stated that the shop had a Sign Board and electric lamp. He also stated that there lights in house and in the sign board of Puma Decorous.

P.W. 4 is Sujit Deb, elder brother of deceased, Piklu. The witness stated that on the night of occurrence at about 10/9-45 PM, he was taking his meal at home and at that time his mother asked as to why Kajal and Bappa had taken Piklu away. She asked him to find out as to why Piklu had gone away with Kajal. That along with Nipu, and Ranjan, he also went to the Gate. About a minute later, he heard someone shouting "save me elder brother, I am being assaulted". Then all the thee of them ran towards the direction from which the cry was coming. The witness found the accused in front of Purna Decorous. That Kajal Sen was holding the hair of his younger brother (Piklu) while Bappa Sen grabbed Piklu. That Khukan Kar, Bakul Kar, Munna Kar, Nepal Dey and Kishore Kairi were surrounding them. Kajal then asked Nepal to assault Piklu. Nepal hit Piklu on the chest with a dager. That all the accused persons had weapons in their hands. He saw the occurrence from about 10/12 feet in the light of the electric lamp in the sign board of Purna Decorous and the street light. He found Piklu smeared with blood. Piklu was taken to the Civil Hospital and therefrom, he was removed to the Silchar Medical College Hospital. That they had removed Piklu to the Civil Hospital by a Ambassador Car on finding it on their way. That Piklu stayed in the Medical College for three days and then passed away. That on the way to the Medical College, his younger brother, Ranjan, went to Rangir (Kher) Thana (Out-Post). That Piklu could talk at the time of being taken to the Medical College.

P.W. 5, Shri Ranjan Deb, is another elder brother of Piklu (the deceased) and the first informant. The witness corroborated the testimony of P.W.s 2 and 4. The witness stated that after hearing the scream, he came out from his house along with his brother and on their shouting "Dhar, Dhar" (catch them), the accused persons fled away. The witness stated that his other brother died. P.W. 6 is the Ward Boy of the Medical College who was present when the Inquest Report, exhibit 3, was prepared. P.W. 6 stated that he put his signature as a witness in the Inquest Report. P.W. 5 in course of his evidence stated he had got down at Rangir Khari and informed the Police at the Rangir Khari Out-Post about the incident. P.W. 7 is Shri Sibaji Ray, who stated that at about 10 PM, while he was returning home by the Radha Madhab Road on the date of occurrence, he came to the entrance of Puma Paul Road via Panpatty and saw quite a few people waiting near Purna Decorous. That in the light ofthe Scooter head-light and the street-lamp as also that from the Purna Decorous, he saw Kajal Sen holding Piklu by the hair, Bappa Sen holding Piklu in his arms while Bakul Kar, Khukan, Munna Kar, and Nepal kept Piklu surrounded with arms in their hands. That Piklu was shouting "Barada, Barada, Bachao" (elder brother, elder brother, save me). Then Kajal exhorted Nepal to kill Piklu. Nepal hit Piklu with a weapon like Dagger and the latter fell down on the ground holding his chest and abdomen with his hands. About that time, Piklu''s brothers also came. That Piklu''s brothers reached the place of occurrence when Piklu was shouting "elder brother save me". That the said brothers, the witness also saw Piklu''s mother. That out of fear, the witness turned his Scooter and went back home. That the witness went to the Medical College Hospital to see Piklu on the following day. The witness stated about the death of Nepal.

P.W. 8, Dr Pannalal Sinha, is the Senior Medical and Health Officer, Silchar Civil Hospital, who held the autopsy on the body of the deceased Piklu at the Forensic Department of the Silchar Medical College on 17.12.90, and found the following injuries:

Rigor mortis present:

One penetrating wound on the left side of the chest oblique in nature with inner end downwards and lx3/4" inch away from the mid line and lx3/4" below. The nipple, size lx1/2"x 1/4 "x 3 3/4 " inch which directed backwards slightly downwards cutting 6th left rib 1/2" away from inner end and ruptured the anterior part of the lower lobe of left lung and anterior wall of Ventricle of heart. Pericardium plural cavity filled with blood. One paramedian incision and incision and transversion found in incision on the abdomen. Both due to surgical operation.

P.W. 9, Abdul Rahman Majumdar, is the Scribe of exhibit 2, the ejahar. P.W. 10, Dr Debabrata Singh, was the Registrar of the Silchar Medical College Hospital, stated that in the Surgical Unit No. 2 of the Medical a patient by the name of Piklu was there in a seriously injured condition and that said Piklu was under treatment. That at 10.30 PM, he received Police requisition for furnishing the medical examination report in respect of Piklu and was also to record die Dying Declaration if it was needed. The said requisition was proved as exhibit 5. The witness accordingly recorded the Dying Declaration ofPiklu which has been marked as exhibit 6. In the Dying Declaration, the deceased stated that accused Kajal Sen, his brother Bappa Sen along with Khukan, Babul and Munna Kar held him by force making him unable to move while Nepal stabbed him in the chest with a sharp weapon.

P.W. 11, Tridip Thakuria, Sub-Inspector of Police, was the investigating Officer of the case, who was posted at Rangi Kheri Police out-post, who was informed about the incident orally by Ranjan Deb. While P.W. 12, Jatindra Mohan Roy, Sub-Inspector of Police, posted at Silchar Police Station, was also another investigating Officer who was entrusted with the investigation of the case on receipt of the written ejahar, exhibit 2, from Ranjan Deb, on 15.12.90.

The learned trial Court relied upon the testimony of the witnesses as well as the Dying Declaration (exhibit 6) and on consideration of the attending circumstances, found the accused persons guilty of the offences as mentioned earlier and sentenced them accordingly. Hence this appeal.

In this appeal, the legality and validity of the conviction and the sentences of the accused/Appellants are assailed both on facts as well a in law. Mr. A.K. Bhattacharyya, the learned Senior Counsel appearing on behalf of the accused/Appellants took pains in placing before us the material evidence on record. Referring to the testimony of the witnesses, Mr. Bhattacharyya, submitted that there was strong animus on the part of the prosecution witnesses to implicate the accused persons in view of the long-standing rivalry between the deceased, the prosecution witnesses more particularly P.W.s 4 and 5 and the accused party. The learned senior Counsel further submitted that the accused persons who were not involved in the occurrence, were implicated by the prosecution to feed-fat their ancient grudge. In support of his contention, Mr. Bhattacharyya, the learned Senior Counsel referred to the exhibit 2, the FIR, and pointed out that the FIR was filed after twenty eight hours of the occurrence and that the said FIR did not disclose the names of the eyewitnesses, nor did it refer to the street light, the lights of the Sign Board of Purna Decorous and die Dying Declaration allegedly made by the- deceased on the very day of the occurrence. Mr. Battacharyya, the learned Senior Counsel referred to the exhibit 7, the GD Entry No. 310 dated 14.12.90, which was allegedly filed by P.W. 5, Shri Ranjan Deb, in the Police Out-Post at Rangir Khari, and submitted that the said GD Entry did not contain the names of Shri Kishan Koiri and Bakul Kar, who were shown as accused in the FIR The learned senior Counsel in addition pointed out some notable omissions in the GD Entry like non-mentioning of the names of the brothers as eye-witnesses and that the deceased had gone out with Kajal Sen and Bappa Sen, and other relevant materials which were only introduced for the first time in the Court. The learned Senor Counsel further submitted that the importance of the above aspects were very much relevant not only in view of the provisions as enunciated in the Evidence Act, but it assumes more importance because the Police started investigation of the case only on the basis of exhibit 7, the GD Entry dated 4.12.90, despite receipt of a report of a cognizable offence. Mr. Bhattacharyya, the learned Counsel, submitted that the investigating officer examined a number of witnesses, viz., Himanshu Kumar Seal, Timpu Seal, Tohalal Rabidas, Munindra Pal, Ranjit Pal, Chittaranjan Deb, Subal Kanta Banik and Gautam Banik and others; but the prosecuting agency withheld those witnesses from Court and examined only the interested witnesses. Mr. Bhattacharyya, the learned Counsel for the Appellants, submitted that the presence of witnesses, Sujit Deb and Ranjan Deb, at the place of occurrence was doubtful on the face of the evidence on record. The learned Senior Counsel seriously contested the presence of the witness, Shibaji Roy, at the place of occurrence. Mr. Bhattacarhyya submitted that Shibaji Roy could not have been at the place of occurrence, but his presence was shown. Referring to the conduct of the said witness, the learned Counsel submitted that he was involved in a serious criminal offence on earlier occasions. Referring to the statement of the witness u/s 161 Code of Criminal Procedure, the learned Counsel pointed to the conduct of the witness in avoiding the Police for long after the'' occurrence and submitted that there is doubt in the testimony of the witness. The learned Senior Counsel appearing on behalf of the Appellants, also assailed the Dying Declaration and submitted that it was an unreliable piece of evidence. Mr. Bhattacharyya submitted that the Dying Declaration was not recorded verbatim, in the won words of the deceased, and it was recorded from memory of the Doctor who attended upon the deceased, that too in the adjacent room. The learned Counsel further submitted that the state of health of the deceased was not mentioned in the Dying Declaration, nor was any Certificate given to that effect and, therefore, the said Dying Declaration should not be given credence at all. The learned Counsel was very much critical of the investigating agency which failed to adhere to the mandate of the Assam Police Manual.

The learned Senior Counsel, Mr. Bhattacharyya, further submitted that no conviction u/s 302/149 IPC was sustainable. The learned Counsel took exceptions to the procedures adopted by the learned Sessions Judge and submitted that all the accused persons were convicted u/s 302 IPC with the aid of Section 149 IPC though no separate charges u/s 302 and 149 IPC were framed against the accused which has prejudiced the accused/Appellants in their trial and in the aforesaid circumstances, the Appellants could not have been convicted for the offence of murder u/s 302 IPC for which they were not charged.

In support of his contentions, the learned Senior Counsel referred to the extract of the Hamlyn Lecturers, Seventh Series, delivered by Prof. Glanville Williams, the decisions reported in Khushal Rao Vs. The State of Bombay, Maniram Vs. State of M.P., , Nanak Chand Vs. The State of Punjab, , Suraj Pal Vs. The State of Uttar Pradesh, , and many others.

Mrs K. Deka, the learned Public Prosecutor, supported the conviction and sentences of the accused/Appellants, and submitted that the accused were rightly convicted on proof of their guilt. The learned P.P. fairly submitted that the FIR is not a substantive piece of evidence. It is only a report relating to an event that took place at certain point of time and referred to a decision reported in Sunil Kumar and others Vs. State of Madhya Pradesh, , in support of her submission. Mrs K Deka pointed out that all the witnesses are not to be examined and the accused cannot draw the benefit of examination of all the witnesses; it is for the prosecution to lead the material evidence involved in the incident. She further submitted that the witnesses cannot be discredited because they are relatives, on the other hand, it is the nearest relatives who are interested to find out the real culprits.

We have ourselves gone through the evidence on record. There are no doubt some contradictions, discrepancies and certain embellishments in the evidence of the prosecution witnesses; but the aforesaid infirmities have not affected the substratum of the prosecution story.

P.W. 2, Smti Pritilata Deb, the mother of the deceased, in clear terms stated that the deceased left the house after having his meal at about 9.30 or 10.30 PM towards the Paan shop for a "Paan" and the witness also stated that the deceased went out with Bappi and Kajal, one of whom she found in her courtyard and the other near the gate. The above version of the witness is corroborated by P.W.s 4 and 5, her two sons. P.W. 2 also narrated the circumstances under which all the three of them reached the place of occurrence on hearing outcry from the deceased and how they found Piklu lying on the ground smeared with blood in front of Purna Decorous. P.W.s 4 and 5 who came ahead of P.W. 2 running to the spot of the occurrence, found that accused Kajal Sen was holding Piklu''s hair and Bappa Sen was grabbing Piklu (since deceased) while Khukan Kar, Munna Kar and Nepal Dey were keeping Piklu surrounded. Kajal incited Nepal who inflicted the fatal blow on the chest of Piklu with a dagger. The testimony of the witness that Piklu shouted for help saying "Barada, save me, save me" is supported by independent witnesses like P.W. 1 and P.W. 3. These two witnesses also supported the version about the availability of lighting of lamps from the Sign Board of the Shop of Purn Decorous. Despite some minor discrepancies, there is a ring of truth in the evidence of all these witnesses.

P.W.s 2, 4 and 5, no doubt, are close relatives of the deceased, but at the same time, they were equally interested to detect die guilty persons instead of roping-in innocent persons. These witnesses are natural witnesses. Since the names of Kishan Koiri and Bakul Kar, were not mentioned in the GD Entry dated 14.12.90 (Exhibit 7), which was the first information in point of time, the learned trial Court gave the benefit of doubt to these two persons. The evidence of P.W.s. 2, 4 and 5 cannot be discarded only in view of the fact that the learned trial Judge did not accept their involvement for the grounds cited above. On the facts and circumstances, "Uno Falsus Falsus in Omnibus" (false in one thing, false in everything) doctrine cannot be applied. The testimony of P.W. 7, Shri Shibaji Roy, cannot be thrown-out merely on the ground that he was arrested by Police on an earlier occasion in the year 1975 and that he had to serve for two years under the Probation of Offenders Act.

The relation of P.W. 7 with the accused Kajal, Bappa, Ajoy, was not well-disposed. The witness in cross-examination admitted that he filed a case against Kajal, Bappa, Ajoy, Piklu (deceased) and others for having broken his vehicle which was later on compromised. The testimony of this witness was recorded by the Police u/s 161 Code of Criminal Procedure after eleven days. The delay in recording the statement of this witness does not cut at the root of the prosecution case. Even if the evidence of this witness is excluded, there are other reliable evidence on record in support of the prosecution case and the exclusion of the evidence of this witness will not affect the core of the prosecution story.

Exhibit 7, the GD Entry No. 310 dated 14.12.90, is another clinching piece of evidence which was the first in point of time. The Dying Declaration (exhibit 6) was recorded by P.W. 10, Dr Debabrata Singh, who was rendering treatment to the deceased in the Silchar Medical College Hospital, who was the Registrar of the Surgery Department at that point of time. The Doctor recorded the Dying Declaration and obtained the left thumb impression of the deceased. The witness was thoroughly conversant in Bengali, translated the statements of the deceased and thereafter recorded the same in English. The witness stated that he passed the Matriculation examination in Bengali medium.

The Dying Declaration stands on the same footing as any other piece of evidence and is to be judged in the light of the facts situations taking into consideration the principles governing the weighing of evidence. There is no specific form for recording Dying Declaration. However, a Dying Declaration which is recorded in a "question and answer" form and in the words of the maker of the declaration as far as possible, stands on a much higher footing. Mr. Bhattacharyya, the learned senior Counsel appearing on behalf of the Appellants, no doubt is right in his submissions that the Dying Declaration requires a closer scrutiny and there cannot be any two opinion about the principle as laid down in the decisions in AIR 1985 SC 22, AIR 1976 SC 1994, AIR 1992 SC 1817, Maniram Vs. State of M.P., which are all binding on the Court; however, each case is to be determined on its own facts - of course, keeping in mind the circumstances under which the Dying Declaration was made. A Dying Declaration cannot be ignored as a weaker type/kind of evidence. It all depends on the facts and circumstances. Convictions on the basis of Dying Declaration above is permissible if it is reliable. In judging the reliability of a Dying Declaration, the Court is to keep in mind the circumstances and all the situations and to ascertain as to whether the person was in position to make the Dying Declaration. His mental faculties, etc., are to be looked into. Here, the Dying Declaration was recorded by the Doctor who is/was the best person to know and give opinion about the fitness of the deceased to make the statements. The Doctor deposed that the patient was serious and he spoke slowly and with difficulty. The witness deposed that before recording the Dying Declaration, he was observing the patient and treating the deceased for about half an hour. From the evidence on record, it appears that the deceased was in a fit position to make the Dying Declaration. A Dying Declaration gives a truthful account.

The discourse delivered by Prof Glanville Williams is an innovative and seminal one wherein the learned Professor discussed the fundamental features of the English Criminal trial vis-a-vis the trial process, wherein the Professor also discussed about the exclusively rules of the law of evidence.

All these materials cited above unerringly point to the guilt of the accused persons. It is no doubt true that no substantive charge was framed either u/s 149 IPC or Section 302 IPC against the accused persons. For every distinct offence of which any person is accused, there shall be a separate charge in conformity with the provisions of Section 218 of the Code of Criminal Procedure. However, no finding, sentence or order of a Court of competent jurisdiction will become void merely on the ground of non-framing of charge or on the ground of error, omission or irregularity in the charge unless it occasioned failure of justice, as provided for u/s 464 Code of Criminal Procedure. The Code of Criminal Procedure provides the procedures for trial and like all procedural laws, it is designed to provide a fair trial and to further the ends of justice. The real object is to ensure that the accused persons under the justice administration system is provided with full and fair trial under the established procedures of law.

By framing of charge, the accused is made to know the case against him. If after the framing of charge, the accused is denied justice, in that event, the entire trial will be vitiated. In the instant case, the entire evidence was made known to the accused. The accused persons understood the case against them and cross-examined the witnesses. In that view of the matter, no prejudice is caused by not framing of independent, substantive, charge against the accused persons. In this context, it may be worthwhile to recollect the observation of the Supreme Court in the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, which reads as follows:

.... the Code is a Code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by introduction of endless technicalities. The object of the Code is ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.

If he does, if he is tried by a competent court, if he is told and clearly understands die nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is ''substantial'' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.

(7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard on a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions....

The cases in Nanak Chand Vs. The State of Punjab, and in Suraj Pal Vs. The State of Uttar Pradesh, relied upon by Mr. Bhattacharyya, the senior Counsel for the Appellants, were distinguished and explained in Willie Slaney (supra). In Willie Slaney (supra), it was pointed out that the term "illegality" as used in Nanak Chand (supra)''s case, is to be read with reference to the fact as to whether the Court found prejudice. The Supreme Court in the aforesaid case, emphasised that the object of the charge was to give notice of the matter to the accused and it does not touch with the Court''s jurisdiction. When the necessary information is conveyed to the accused in any other ways, there is no prejudice and the trial will not be vitiated by the mere fact that the charge was not formally reduced to writing. It is not mere form but substance that is to be emphasised. The ratio of Slaney (supra)''s case is a complete answer to the issues raised by Mr. A.K. Bhattacharyya, the learned Counsel for the Appellants.

For the reasons stated above, it cannot be said that the finding arrived at by the learned trial Court holding the accused persons guilty of the offence as illegal.

In the instant case, it appears that there was one penetrating wound in the left side of chest, oblique in nature with inner end downward, which caused fatal injury to the deceased on his chest. The injury by itself was sufficient in the ordinary course of nature to cause the death of the deceased. According to the Doctor, the injury resulted from use of a knife. The effect of such injury depends upon the position and the depth of the injury. The injury was caused by a single stab wound. But in the instant case, the victim was made disabled to resist by himself on being held by the other accused and thereafter by one single blow (stab) on the chest directed backwards and slightly downwards, cutting the sixth rib on the left side, half an inch away from the inner end, ruptured the anterior part of lower lobe of left lung and the anterior will of right ventricle of heart.

From the above conspectus, it is now to be determined as to whether the accused persons who were the members of an unlawful assembly, having a common object, committed the offence of "murder" or "culpable homicide not amounting to murder". Did the prosecution succeed to bring the case under the clause "3rdly" of Section 300 of the IPC. The prosecution in such a situation is required to prove, in the language of Justice Vivian Bose in the case of Virsa Singh Vs. The State of Punjab,

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the inquiry must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional,'' or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

In the case in hand, there is only one injury which is fatal in nature. The deceased was at the mercy of the accused persons and in that situation, they could have inflicted more injury to the deceased. Most probable act were not done though the accused was in then- clutches defenceless. In the circumstances, it is now to be judged whether the injury or injuries sustained by the deceased, were intentionally administered by the accused? Whether the injury was sufficient to cause the death of the deceased in the ordinary course of nature? If the above questions are answered affirmatively, the offence would amount to murder, whether the intention of the accused to cause the death of the deceased was/is proved or not. In this matter, the facts and circumstances unerringly establishes both the constituents by the prosecution by cogent and reliable evidence. The unfriendly if not belligerent relation between the deceased and the accused is proved beyond reasonable doubt, which ended in litigation. The attack was premeditated. Accused Bappa and Kajal went to the house of the deceased just before the occurrence and called the deceased to discuss. Kajal was seen holding the hair of Piklu and Bappa was grasping the deceased; Khukan Kar, Munna Kar and Nepal Dey surrounded the deceased. Kajal asked Nepal to hit Piklu and Nepal hit Piklu in the chest with the dagger. The dagger blow inflicted caused a penetrating wound on the left side of the chest lx3/4" away from the mid-line and 1/2" below the nipple, directed downwards cutting the sixth left rib half an inch away from the inner end and ruptured the anterior part of the lower lobe of the left lung and anterior wall of the right Ventricle .of the heart. The murderous assault caused by the deadly weapon which penetrated through the heart, speaks of the intention of the assailant. Looking at the injuries caused to the deceased Piklu in furtherance of the common intention of all, it is apparently clear that the injuries intended to be caused were sufficient to cause the death in the ordinary course of nature. Even assuming that death was not intended, the evidence on record is sufficient to bring the case within clause "3rdly" of Section 300 IPC.

We have bestowed our anxious consideration on the matter, but do not find any merit in this appeal and accordingly, the appeal is dismissed. The accused persons who are on bail, are directed to be arrested and detained in Jail to serve out the sentences passed against them. The bail bonds stand cancelled.