Manna Lal and Others vs State of U.P.

Ashwani Kumar Singh, J.—The Appellants namely, Manna Lal, Kamta, Ranjit, Phool Chandra, Swayambar, Jagannath, Sri Pal and Binni alias Vijai Bahadur have preferred this appeal against the judgment and order dated 28.11.1981, passed by Sri L. S. Shukla, the then v. Ith Addl. Sessions Judge, Fatehpur in S.T. No. 323 of 1979, u/s 147/148/149/ 307/302, I.P.C. P. S. Bindki Distt. Fatehpur.

The said Appellants had been convicted u/s 302 read with Section 149 I.P.C. and sentenced to undergo imprisonment for life. Further they are convicted u/s 325, I.P.C. read with Section 149, I.P.C. and sentenced to a fine of Rs. 100 each and in default of payment, the sentence of imprisonment was directed to be enhanced from two years to 2-1/2 years. Further they were convicted u/s 147, I.P.C. and sentenced to one year R.I. Only the Appellant Binny alias Vijai Bahadur has been convicted u/s 148, I.P.C. and sentenced to undergo 1-1/2 years R.I. All the sentences were ordered to run concurrently.

A criminal revision has also been preferred by the complainant Chhatrapal against the accused Ram Baran, who was put on trial alongwith the other Appellants, but the learned Sessions Judge recorded verdict acquitting him of the charges. During the pendency of this revision, the Respondent-Ram Baran was spirited away by death and therefore, the revision has become infructuous.

The incident leading to the prosecution of the Appellants occurred on 15.6.1976. It is alleged that on 15.6.1976 at about 3.30 p.m. complainant alongwith Sukhlal (deceased) and brother''s son Hari Babu were on way to their tube well on bullock cart laden with manure, and when they were near their tubewell, the Appellants Manna, Kamta, Ranjit, Sri Pal armed with lathis while Vijai Bahadur alias Binni and Ram Baran armed with ''barchis'' emerged and blocked the way and on exhortation of Sri Pal accused, the accused persons set upon them and assaulted Chhatrapal. When Sukhlal (deceased) came to the rescue of Chhatrapal, the accused persons also assaulted him. The complainant Chhatrapal and Sukhpal ran for their lives but the accused persons continued to assault while chasing. It is alleged that the accused persons outpaced them and surrounded them near the house of Deshraj and assaulted them with their respective weapons as a result of which both the hands of complainant Chhatrapal were fractured. The accused persons also assaulted the deceased and they showered repeated blows on him by their respective weapons. On alarm being raised, the witnesses Jagdev Singh and Lala, who were returning from Bindaki Bazar and many other persons rushed and challenged the Appellants, who had fled away from the scene of occurrence. Sukhlal had slumped down on the ground and became unconscious. One Raju and Mahabali took both the injured to their house from the place of occurrence on bullock cart and from there, they were taken to the Police Station by two labourers namely, Vajaee and Babu Lal on the bullock cart. Injured Sukhlal succumbed to his injuries on the way to the Police Station at the place near Faridpur.

The motive behind the alleged occurrence was that the Appellant No. 1 Manna Lal being an elder brother of Sukhlal (deceased) and Chattrapal-complainant was the Manager (karta) of the family from before and the other two had been looking after cultivation and cattle. Upon the death of their father Chheda, they separated by getting 1/3rd share in the family property by way of private arrangement. Subsequently, Manna induced Gangaram who is son of mother''s sister into instituting a suit for partition and as a result thereof, the partition was re-arranged and consequently, the shares were reduced to 1/4th and Manna cultivated the land falling to his share and also the land falling to the share of Gangaram as 1/2 share (including the share of Gangaram) and the remaining land fell to share of Sukhlal (deceased) and complainant Chhatrapal. In the year 1972 Sukhlal deceased had purchased a house from one Jagannath Teli and Manna Lal filed a civil suit for cancellation of the said sale deed on the ground that he had purchased the said land from erstwhile Zamindar and Jagarnath was a licensee. That suit was lingering decision when the occurrence of this case took place. It is further alleged that complainant and deceased Sukhpal had purchased land from Babu Lal and Lakhan of village Tikri Manauri and Manna Lal had a covetous eyes over the said land and wanted the said land for Vijai Bahadur alias Binni son of his Sadu (wife''s sister''s husband). When the transaction was consummated, Manna Lal felt offended and had also extended threats with the fright of life. It is alleged that the matter was reported to the police and the police had also intervened and Manna Lal etc., were given a dressing down which also annoyed them.

Head constable Jagdish Prasad P.W. 6 scribed the F.I.R. Ex. Ka-15 on 12.45 on the basis of the written report Ex. Ka-1. He then registered crime in general diary as Ext. Ka-16. He prepared majroobi chitthi Ex. Ka-17 of the complainant and sent him alongwith the said chitthi to the hospital. A special report of the incident was sent after its mention in the general diary Ex. Ka-18 at serial No. 32 to the concerned authority through constable Shiv Bahadur.

Dr. D. N. Sharma P.W. 3 examined the injuries of the complainant Chhatrapal on 15.6.1976 at 9.35 p.m. at Bindki dispensary and found the following injuries:

Lacerated wound 1" ? 1" ? scalp deep on the front of the skull 3" above the left eye brow.

Lacerated wound 11/4" ? 1/4" ? on the skull 3" above the left ear.

Lacerated wound 1" ? 1/10" ? scalp deep behind the left ear 21/2".

Contusion 9" ? 41/2" on the post part of the right upper arm in the lower part extending upto elbow with lacerated wound 1/2 "? 1/8" ? Tissues deep.

Contusion 7" ? 5" on back of right fore arm below the elbow with abrasion 2" ? 1/2".

Contusion 21/2" ? 1" on the front of right fore arm 11/2" above the wrist.

Contusion 14" ? 5" on the whole of the back outer aspect of left upper arm and back of left shoulder with lacerated wounds 1/3" ? 1/3" ? skin deep and 1/2" ? 1/2" ? tissues deep of and abrasion 1/2" ? 1/2".

Contusion 9" ? 3" on the back of the left fore arm extending from back of wrist upwards with lacerated wound 1/4" ? 1/8" ? muscle deep. There is traumatic swelling of the whole of the back of left hand.

Multiple contusions 7 in numbers varying from 11/2" ? 1/2" to 3" ? 1/2" in the lower half of the outer aspect of the left thigh.

Contusions 2 in numbers, 11/2" ? 1/2" and 11/2" ? 1/2" on the outer aspect of the left leg in lower half.

Multiple contusions five in numbers 10" ? 1/2", 8" ? 1/2", 9" ? 1/2", 6" ? 1/2" and 6" ? 1/2" on the back of the chest transversely across the chest lumber region.

All such injuries, according to Medical Officer were fresh at the time of the medical examination and had been caused by some blunt object. Injuries Nos. 1, 2, 3, 9 and 10 were simple. For injuries Nos. 4, 5, 6 and 7 he advised X-ray. According to him those injuries could have been caused on 15.6.76 at 3.30 p.m. He prepared injury report Ext. Ka-2. He also opined that injury No. 7 could have been inflicted by giving more than one blow. Similarly injury No. 8 too would have been sustained on getting more than one blow. In cross-examination, he also said that such injuries could also be inflicted at any time during the period from 3.30 p.m. to 9.30 p.m. All such injuries could also have been caused by brick batting, it was wrong to say that the injured had no injury at the time of his medical examination or that he had prepared injury report fictitiously.

Sub-Inspector Murlidhar Tripathii, P.W. 5, prepared panchayatnama of the deceased on the same day, i.e., 15.6.1976 Ex. Ka-4. He also prepared fard of taking into custody the blood stained angochha and kurta Ex. 1 and 2.

The Investigating Officer completed the other necessary formalities in accordance with law and sent the dead body of Sukhlal to mortuary for conducting the post mortem examination.

Medical Officer Dr. Avinash Chandra Srivastava, P.W. 4 performed the post mortem of the dead body of Sukhlal on 17.6.1976. According to him rigor mortis had passed off from the entire body by that time and blistered had appeared. According to him duration of death was before 3/4 day. He found as many as 27 ante mortem injuries, which are enumerated as below:

Lacerated wound 2" ? 1" on anterior side of leg.

Lacerated wound 11/2" ? 1" on left leg 2" below injury No. 1.

Lacerated wound 2" ? 1" on left thigh 3" above knee fractured left tip under injury No. 2.

Contusion 2" ? 1" on left side of left knee.

Contusion 3" ? 1" on lateral side of the left thigh.

Contusion 11/2" ? 1" on posterior side of the left side.

Contusion 11/2" ? 1" on lateral side of the right leg.

Contusion 2" ? 1" on anterior side of right leg.

Swelling 4" ? 2" on dorsal side of right foot. Contusion over swelling present.

Contusion 4" ? 2" on lateral side of right thigh.

Contusion 4" ? 2" on left fore arm lateral side with fracture of both bone in middle.

Contusion 3" ? 2" on left wrist joint.

Contusion 2" ? 1" on left elbow lateral side.

Contusion 21/2" ? 1" on left elbow posterior side.

Lacerated wound 2" ? 1" on lateral side of left arm.

Contusion 2" ? 3/4" on left arm, 2" below injury No. 15.

Contusion 4" ? 2" on right wrist joint with fracture of wrist joint under injury.

Contusion 3" ? 11/2" on right fore arm lateral side.

Contusion 31/2" ? 1" on right arm lateral side.

Contusion 2" ? 1" right arm anterior side.

Contusion 12" ? 11/2" on back oblique in upper back over scapular region.

Four contusions crossing each other in an area of 10" ? 8" on back.

Contusion 5" ? 11/2" on right front of chest with fracture of right of 3rd and 4th ribs. Lungs lacerated. 1 Lb, 4 oz, blood fluid present in right lung cavity.

Contusion crossing each other four in numbers in an area of 8" ? 6" on left lateral side of chest with fracture of 10th and 11th ribs. Left lung lacerated 1 lb, 2 oz blood fluid present in left cavity.

Lacerated wound 11/2" ? 1" on right back of skull.

Two contusions 2" ? 1" size each on left hip.

Three contusions 3" ? 1" size each in lower back.

On the internal examination of the body the Doctor found that the stomach and large intestine were empty, but large intestine was full 3rd, 4th, 10th, 11th and 12th ribs were found fractured and both lungs were lacerated. The cause of death was opined that the deceased had died due to shock on account of ante mortem injuries and blood oozing under injuries No. 23 and 24. All the injuries could have been caused by lathis and in ordinary course of nature they were sufficient to cause death. Injuries Nos. 21, 26 and 27 could have been caused by giving more than one blow by lathi. The time of death of the deceased could be between 7.30 p.m. to 8.00 p.m. on 15.6.1976. In the cross-examination he has also stated that the duration of death could vary six hours either side.

The Investigating Officer after recording the evidence of the witnesses and after completing the formalities of investigation submitted a chart-sheet Ex. Ka-14 against the Appellants and one Ram Baran accused on 9.8.1976.

The accused in their statements u/s 313, Cr. P.C. denied the incriminating evidence appearing against them. They pleaded that they have been implicated in a false case and they claimed to be innocent. To be precise accused Manna pleaded that his family consisting of four brothers out of which he was the eldest and manager (Karta) of the family, had inherited certain property from grand-father (Nana) and after the death of their father the property was partitioned and all the brothers separated and lived separately. He further pleaded that in the propinquity of his house was the house owned by one Jagannath which house was purchased by Sukhlal. Thereafter litigation erupted between him and deceased. The litigation aforesaid travelled upto High Court. He however pleaded that the erstwhile Zamindar had processed papers in regard to ownership of that house in his favour. The litigation aforesaid was being slugged out in the civil court. On account of the aforesaid litigation, deceased and other witnesses were hostile and nurtured vengeance and they have falsely nominated him in the case on account of enmity.

Accused Kanta and Ranjit sons of accused Manna pleaded in their statement u/s 313, Cr. P.C. that accused Sripal, Binni alias Vijay Bahadur and Phool Chandra, were not on friendly terms with them. They also stated that Ram Baran and Jagannath were also not on intimate terms with them and they have been falsely named in the case out of animosity.

Accused Binni alias Vijai Bahadur, Phool Chandra and Sripal also pleaded in their statement u/s 313, Cr. P.C. that they have been enmeshed in a false case out of enmity. They denied to be on intimate terms with the other accused persons.

Accused Jagannath and Ram Baran pleaded that they were neither related nor were on intimate terms with other accused persons. They also claimed to have been falsely implicated in the case out of enmity.

The defence brought on record certain documents Exts. Ka-1 to Ka-7 in extenuation of the guilt.

The prosecution to substantiate its case, examined P.W. 1 Chhatrapal, P.W. 2 Jageshwar, P.W. 3 Dr. D. N. Sharma, P.W. 4 Dr. Avinash Chandra Srivastava, P.W. 5 Murlidhar Tripathi S.I. Investigating Officer and P.W. 6 Jagdish Prasad Head Constable.

The trial court, on appraisal of the entire evidence on record held the accused guilty of the charges and convicted them under Sections 147, 148, 149, 307 and 302, I.P.C.

Being aggrieved, the accused persons have filed the appeal against the judgment and order passed by learned Sessions Judge as aforesaid.

We have heard Sri Brijesh Sahai, learned Counsel for the Appellants, Sri K. N. Bajpai learned Addl. Government Advocate and Sri Prashant Kumar Singh, learned Counsel for the complainant.

The learned Counsel for the Appellants canvassed that the evidence produced in the case is not sufficient and convincing to warrant the conviction of the Appellants. He also canvassed that the evidence of the witnesses could not be accepted as they are both interested witnesses related to the deceased. It is further canvassed that the witnesses in their deposition have given a concocted version which casts severe doubts about truthfulness of the prosecution case. It was lastly contended that there is no reliable evidence brought on record on the basis of which the Appellants could be convicted for offence punishable u/s 302, I.P.C. Per contra, learned A.G.A. appearing for the State canvassed for the correctness of the view taken by the trial Judge.

In order to appreciate the aforesaid rival contentions of the learned Counsel for the parties, we propose to scrutinise independently the oral and documentary evidence appearing on record.

P.W. 1 Chhatrapal injured, in his statement in the Court, is full blooded brother of accused Manna as well as deceased Sukhpal. He deposed that on the day of occurrence, he alongwith deceased Sukhlal and nephew Harii Babu were on way to tube-well on a bullock-cart loaded with manure at about 3.30 p.m. and when they were quite near to the tube well, all the Appellants namely Manna Lal, his son Kamta, Ranjeet, Mannalal''s brother-in-law Sripal, Sripal'' son-in-law Swayamber, Binny and Phool Chandra, sons of Mannalal''s "sahru" Jagannath Teli and Ram Baran blocked the way. The accused persons namely Binni and Ram Baran were armed with "barchi", while rest of the Appellants/accused had lathis. Appellant Sri Pal exhorted the other accused persons upon which Appellants/accused pounced upon them and started assaulting P.W. 1 Chhatrapal. In the meantime, his brother Sukhlal came to the rescue of his brother Chhatrapal who was also assaulted by Appellants/ accused. He further deposed that assault was unabated and therefore, they ran for their lives towards east. He further deposed that in front of the door of Deshraj Kurmi, all the Appellants/accused overtook them and surrounded him and deceased Sukhlal and showered repeated blows. He further deposed that in the assault, his both the hands were fractured and as a result, he slumped down on the ground. He further deposed that his brother Sukhlal was pinned down on the ground, and was showered blows mercilessly. P.W. 1 Chhatrapal''s nephew Hari Babu raised alarm and ran towards the village. Jageshwar and Lala Behana resident of village Sairpur were also attracted to the place and witnessed the occurrence. The Appellants/ accused after assaulting them, ran towards their houses. Both the injured were brought to their house on bullock cart and from there they were taken to Police Station accompanied by Hari Babu, wife of Sukhlal and labourers Vijai and Babu Lal. On the way near village Faridpur, Sukhlal succumbed to his injuries. The bullock cart was standing out side the Police Station. He got prepared a written report scribed by his nephew Hari Babu. After listening to the contents of the written report, he placed his thumb impressions on it as his both hands were fractured.

P.W. 2 Jageshwar also supported the version of the P.W. 1 in all material details. He deposed that on the day of occurrence, he was on way to village Sairpur and when he was near the tube well belonging to Chhatrapal, he saw Appellants/ accused near the tube well. He was accompanied by Lala Behana who was of his village. The complainant Chhatrapal and deceased Sukhlal and Sukhlal''s son were present there. Appellants/accused Binny and Ram Baran were armed with ''Selha'' and the rest of the Appellants/accused were having lathis. Appellants/ accused Shripal exhorted the accused persons and all the accused pounced upon and started assaulting Chhatrapal P.W. 1. Sukhlal deceased ran to rescue his brother upon which the accused persons directed their ire on Sukhlal. In the meanwhile Chhatrapal ran towards east. Sukhlal deceased also ran towards east in the same direction, to which Chhatrapal had gone. Both of them were hotly chased and they fell down in front of the house of Deshraj Kurmi. The Appellants/accused kept on assaulting both of them and then they fled away towards the village Banauli. Sukhlal''s younger son was shrieking and yelling for help from village people. He alongwith the other went near Chhatrapal and Sukhlal. Both had sustained injuries and were alive. He further deposed that Chhatrapal and Sukhlal were taken to their house and he and Lal Behana then resumed journey towards their village Sairpur.

Upon reappraisal and scrutiny of the statement of P.W. 1, it is very clear that firstly Appellants/accused started beating him and when Sukhlal intervened to save him and the accused persons directed their ire and showered blows upon him. In his statement, it has clearly stated that both ran towards the east and when they reached in front of the house of Deshraj Kurmi, they fell down and were beaten again by the Appellants/accused. Though Sukhlal was mercilessly beaten and had received as many as 27 injuries spread all over the body, and most of the injuries have landed on the non-vital part except three injuries, i.e., injuries Nos. 23, 24 and 25. Injuries No. 23 and 24 were contusions and injury No. 25 was lacerated wound. There was internal bleeding on account of injuries Nos. 23 and 24. Thus, an inference can be drawn that Appellants/accused inflicted bodily injury with intention to cause death ; or with intention to cause such bodily injury as is likely to cause death. It has come in the evidence that injured Chhatrapal and deceased Sukhlal were conscious at the time when the Appellants/accused left them. P.W. 2 Jageshwar also categorically stated that after beating P.W. 1 Chhatrapal and deceased Sukhlal, Appellants/ accused had gone towards their village. He alognwith his brother went near P.W. 1 Chhatrapal and deceased Sukhlal, who were injured and were conscious.

The evidence of P.W. 3 Dr. D. N. Sharma, who examined the injuries of complainant Chhatrapal, has stated in Court that all the injuries were fresh and were caused by blunt object, i.e., lathi. Injuries Nos. 1, 2, 3, 9 and 10 were opined to be simple and the injuries Nos. 4, 5, 6, 7, 8 and 11 were stated to be kept under observation and advised for X-ray. As regards the date and time of the injuries received by the complainant Chhatrapal, he said that it is likely to be caused on 15.6.1976 at about 3.30 p.m. As regards the injuries Nos. 7 and 8, it might be the result of several blows. In his cross-examination the doctor said that all the injuries received by the injured could also be caused by hitting stone.

P.W. 4 Dr. Avinash Chandra Srivastava, who conducted the post mortem of the deceased Sukhlal opined that the cause of death was shock and haemorrhage due to injuries and also as a result of bleeding under injuries Nos. 23 and 24. According to him, the date and time of death was 15.6.1976 in between 7.30 - 8.00 p.m. and all the injuries could be cause by lathi and in ordinary course the injuries were sufficient to cause death. There was likelihood that on receiving such injuries, the deceased had become unconscious.

It would transpire from a perusal of the impugned judgment recorded by the trial court that the finding of guilt is founded on the direct evidence of P.W. 1 Chhatrapal injured and P.W. 2 Jageshwar whose statement, we have no hesitation to say, do not appear to be tainted with any infirmity and the same receive reinforcement from the medical evidence of P.W. 3 Dr. D. N. Sharma and P.W. 4 Dr. Avinash Chandra Srivastava and prompt F.I.R. Ex. Ka-15. Thus, the contention of the learned Counsel for the Appellants that the witnesses in their deposition have given a concocted version, which casts severe doubts about truthfulness of prosecution case has no force.

The argument advanced by learned Counsel for Appellants regarding witnesses being related and interested is also of no value as P.W. 1 Chhatrapal is himself an injured witness and his presence cannot be doubted in any way as in so far as the date, time and place of the occurrence are concerned, there appears to be no room for any criticism. Learned Counsel for the Appellants submitted that looking to the nature of the injuries received by deceased Sukhlal, who intervened to save injured Chatrapal, under assault of accused persons with lathis, the case would fall u/s 304, Part II, I.P.C. read with Section 149, I.P.C. Learned Counsel for the Appellants further argued that the deceased received as many as 27 injuries and most of them were on non-vital parts except for three injuries mentioned at serial Nos. 23, 24 and 25. There was internal damage under injuries Nos. 23 and 24 as on internal examination bleeding was present under these injuries, however, there was no internal damage under injury No. 25. Learned Counsel for the Appellants further contended that there was no visible serious injuries mentioned at serial Nos. 23 and 24. Learned Counsel for the Appellants emphatically argued that since it is not known as to who was the author of injuries Nos. 23 and 24 and the internal bleeding was not visible as such there was no intention of causing death or causing bodily injuries likely to cause death. Learned Counsel categorically emphasised that Part II comes into play when death is caused by doing an act with knowledge that is likely to cause death, but there is no intention on the part of the Appellants/accused either to cause death or to cause such bodily injury as is likely to cause death, as it stands in the present case.

Learned Counsel for the Appellants also argued that there was no motive to assault the deceased Sukhlal. He was only assaulted when he intervened to save the complainant Chhatrapal, who was being belaboured by the accused persons. P.W. 1 Chhatrapal in Paras 3, 4, 5 and 6 in his examination-in-chief recorded in Court has disclosed the reasons of accused/Appellants being on inimical terms with injured Chhatrapal and deceased Sukhlal and by this reckoning, it does not commend to us for acceptance that there was no motive for assaulting Chhatrapal and Sukhlal who succumbed to his injuries.

The Hon''ble Apex Court in the case of Yunis @ Kariya etc. Vs. State of Madhya Pradesh, has gone to the extent of observing:

"It is settled law that establishment of motive is not a sine qua non for proving the prosecution case."

Learned Counsel for the Appellants has not alleged any motive for false implication. The accused, the deceased and the complainant are blood relations and in this light, it is quite baffling why P.W. 1 Chhatrapal and P.W. 2 Jageshwar would falsely implicate the Appellants and would depose against them if some one else were perpetrator of the crime. In this view of the matter, we do not find any reason to believe that the complainant were imbued with any animus to falsely implicate the Appellants.

Thus, no sum up, submissions made by learned Counsel for the Appellants, no case u/s 302, I.P.C. or 304, Part I, I.P.C. is made out and at the most the offence committed by accused/ Appellants would fall under the purview of Section 304, Part II, I.P.C.

Sri K. N. Bajpai, learned Addl. Government Advocate, repudiated the submissions and relied upon the case of Virsa Singh Vs. The State of Punjab, wherein in para 12, following observations have been made:

12.... To put in shortly, the prosecution must prove the following facts before it can bring a case u/s 300 "thirdly", First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury 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.

The Hon''ble Apex Court explained the third ingredient in the following words: Virsa Singh Vs. The State of Punjab,

16.... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the Appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question ; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

Thus, according to law laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder.

We have perused the evidence on record including the statement of P.W. 1 Chhatrapal and P.W. 2, Jageshwar.

The finding recorded by the learned Addl. Sessions Judge, Fatehpur is that on perusal of the medical evidence as given by Dr. Avinash Chandra P.W. 4, the opinion as expressed by the Doctor in his report is crystal clear that cause of death was shock and due to ante-mortem injuries and oozing of blood from injuries Nos. 23 and 24. According to him injury No. 23 was contusion so also injury No. 24 was another contusion. Seat of such injuries were on the right side of the front of chest and left lateral side of the chest of the deceased. At the same time according to the post mortem report injuries Nos. 1, 2, 15 and 25 were lacerated wounds on different parts of the body. In view of the above, it was concluded that in the evidence of P.W. 4 as referred to above injury Nos. 23 and 24 probably meant lacerated injuries caused to the deceased as from contusions, blood would not have in the ordinary course come out in a manner as to stain clothes or earth. Accordingly on all such considerations, he concluded that the prosecution have been in a position to bring home guilt punishable under Sections 147/149/ 302 and 325, I.P.C.

He further recorded that it would not be out of place to mention that the occurrence as it is said, had taken place on 15.6.1976 at 3.30 p.m. The Police Station is at a distance of 9 miles from the place of occurrence. F.I.R. was lodged in this case at 20.45 hours on the same day, i.e., after 5-1/4 hours after the occurrence. It has also come in evidence that two persons had after the assailants had left the place of offence, taken the injured on bullock cart to their house and then, they were taken to the police station and F.I.R. was lodged as such the circumstance of the case indicate that there had been apparently no delay which could lead to the inference that the F.I.R. was lodged after due consultation etc. Upon a careful consideration of all such material on record, it appears to him in view of the number and nature of injuries caused to the deceased and the complainant that the F.I.R. in regard to the number of assailants except Ram Baran may not have been an exaggeration. Accordingly, he held the accused persons Manna Lal, Ranjit, Kamta, Jagannath, Phool Chandra, Swayamber and Sripal are guilty of the offence punishable under Sections 147 and 302/149, I.P.C. and on account of grievous hurt and simple hurt of complainant, they are guilty of the offence punishable u/s 325 read with Section 149, I.P.C. and not u/s 307, I.P.C. because the barchhis which were said to have been used in the occurrence of this case were used from the blunt side. Thus, accused Binny alias Vijai Bahadur is guilty of the offence punishable u/s 148, I.P.C. and Sections 325, I.P.C. read with Sections 149, I.P.C. and 302/149, I.P.C. Against the accused Ram Baran, there is only evidence that he had participated in the occurrence, but nothing has been said as to the circumstances under which he could reasonably join other assailants in the offence of this case. Accordingly, he is entitled to a benefit of reasonable doubt.

The question now arises as to whether the offence committed by the Appellants in causing death of Sukhlal would be one covered u/s 302, I.P.C. or Section 304, Part I, I.P.C. No doubt, the deceased Sukhlal received as many as 27 injuries on his body, spreading all over the body, out of which only three injuries were on vital parts at serial Nos. 23, 24 and 25. Injury No. 25 having no internal damage while injuries Nos. 23 and 24 had caused internal damage, i.e., profuse bleeding was present. It is also stated that it was not known as to who was author of injuries Nos. 23 and 24. Moreover Sukhlal was intervener and there being 7 accused persons, out of nine, armed with lathis and other two armed with "barchi". There was no typical "barchi" injury on the person of injured Chhatrapal, nor on the body of the deceased Sukhlal. P.W. 2 Jageshwar in his statement stated that "barchi"was used as lathi.

We have given ample consideration to the rival submissions in the light of the materials on record and we do not feel persuaded to agree with the submissions made by learned Counsel for the Appellants Sri Brijesh Sahai, learned Addl. Government Advocate Sri K. N. Bajpai and learned Counsel for the complainant Sri Prashant Kumar Singh. We also do not agree with the finding arrived by the learned v. Ith Addl. Sessions Judge, Fatehpur.

In order to find a person guilty of an offence u/s 302 r/w Section 149, I.P.C. it was necessary for the prosecution to establish that the common object of the unlawful assembly was to commit an offence u/s 302 or that the members of the assembly knew it to be likely that an offence u/s 302 would be committed in prosecution of the common object. The cumulative effect of the injuries was no doubt found to have been sufficient in the ordinary course of nature to cause death. If such injuries were traced to a particular accused, he would be guilty of an offence u/s 302 without the aid of Section 149. Here in the present case, the author of injuries No. 23 and 24 under which there was an internal bleeding, was not known. When the injuries caused were cumulatively sufficient to cause death, it was necessary before holding each of the accused guilty u/s 302 r/w Section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence u/s 302, I.P.C. would be committed in prosecution of the common object. In order to determine that question, it was necessary to refer to the injuries caused. On an analysis of the injuries it could not be said, that any of the persons that inflicted injuries intended to cause death or such injury as was sufficient in the ordinary course of nature to cause death. But it could be said that common object of the assembly was to cause bodily injury as was likely to cause death. It was difficult to hold that the injuries, cumulatively, were sufficient in the ordinary course of nature to cause death, though Dr. Avinash Chandra Srivastava P.W. 4 had stated so.

Thus we are of the view that acts of the accused/Appellants in the circumstances of the case, are punishable u/s 304, Part I, I.P.C. read with Section 149 and not u/s 302, I.P.C. or 304, Part II, I.P.C. read with Section 149, I.P.C.

So far as the conviction and sentence of the Appellants u/s 325, I.P.C. read with Section 149, I.P.C. as well as u/s 147, I.P.C. are concerned, we have no reason to differ from the finding and therefore, their convictions under the aforesaid sections are affirmed. Likewise, the conviction and sentence of the Appellant Binny alias Vijai Bahadur u/s 148, I.P.C. is also affirmed.

In the net conclusion, we partly allow this appeal. The conviction and sentence u/s 302, I.P.C. read with Section 149, I.P.C. is set aside and substituted by a conviction u/s 304, Part I read with Section 149, I.P.C. and sentence of ten years R.I. would meet the ends of justice. Similarly conviction and sentence u/s 325, I.P.C. read with Section 149, I.P.C. and further u/s 147, I.P.C. against the Appellants are affirmed. All the sentences shall run concurrently.

The appeal against Appellants No. 1 Manna Lal, Appellant No. 4 Binny alias Vijay Bahadur, Appellant No. 7 Jagannath and Appellant No. 8 Shri Pal stood abated as per the report of the C.J.M. on account of their deaths.

Now, this appeal survives only against the Appellants Kamta, Ranjeet, Phool Chandra and Swayambar, who are on bail, are required to surrender their bail bonds and the sureties forthwith and the Chief Judicial Magistrate, Fatehpur is directed to take necessary steps for their arrest and after they are arrested or surrendered, they shall be sent to jail to serve out the sentences so imposed by this Court. After surrender or arrest of the Appellants, their bail bonds and sureties shall stand discharged.

Let the record received from the trial court be sent back together with the copy of this judgment, for necessary compliance. A revised conviction warrant shall be sent to the Jail concerned.

We are happy to note that Sri Brijesh Sahai, learned Counsel for the Appellants, Sri K. N. Bajpai, learned Addl. Government Advocate for the State and Sri Prashant Kumar Singh, learned Counsel for the complainant rendered valuable assistance to us.