Ram Chandra and Another vs State of C.G.

Dhirendra Mishra, J.—The Appellants have preferred this criminal appeal u/s 3 74(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 12.5.2003 passed in ST. No. 420/01 whereby the learned III Additional Sessions Judge, FTC, Mungeli, District Bilaspur has convicted the Appellants under Sections 302/34 & 323/34 of the I.P.C. and sentenced each of them to undergo life imprisonment, pay a fine or Rs. 1,000/-, in default thereof, to undergo additional RI for six months and to pay a fine of Rs. 500/-, and in default of payment of fine, to undergo R.I. for two months.

Case of the prosecution, in brief, is that father of injured complainant Karan Singh namely Moujiram and accused persons are cultivators of Village Dodapur. On 20th July, 2001 at 18.00 hours, Appellant RamchandraLodhi under the influence of liquor was brandishing lathi and using filthy language in front of house of one Jaguram on the road. One Bhagwandas took him to his home, however, he again returned and started quarrelling with Jaguram alleging that he got him defeated in Sarpanch election, whereupon Jaguram snatched lathi from him, on which he went back to his home and returned with his brother Tarachand. Ramchandra was holding sword whereas Tarachand was holding lathi. Appellant Ramchandra assaulted Moujiram on his head whereas Appellant Tarachand assaulted him with lathi. Moujiram fell on the ground. Witnesses Karan Singh, Vipatram, Jaguram and Ramnath intervened. At that time, Tarachand also assaulted Karan Singh with lathi, as a result, he sustained injuries over his, left elbow, left leg and thighs. Karan Singh went to police station with Kotwar his father Moujiram and Jaguram and lodged the report against the Appellants vide Ex. P/1 on 21.7.2001 at 2 hours, whereupon offence u/s 307/34 of the IPC was registered against the Appellants. Police sent Moujiram and Karan Singh for examination to Community Health Center, Pathariya vide Ex. P/7 and P/9, where Dr. P.K. Singh examined them and gave their medico legal reports of Ex. P/8 and P/10 respectively. Both of them were also referred to District Hospital, Bilaspur for further treatment, where Moujiram died on 21.7.2001 at 10 am. His dead body was sent for autopsy to Dharam Hospital, Bilaspur on 21.7.2001 vide Ex. P/5, where Dr. S. Chhatterjee conducted postmortem and gave the report of Ex. P/6. Copy of the FIR was forwarded to the Judicial Magistrate First Class, Mungeli and receipt thereof is Ex. P/23. The Appellants were arrested on 22.7.2001 vide Ex. P/16 & P/l 7. Sword and lathi were seized on being produced by Karan Singh on 22.7.2001 vide Ex. P/ 2. The aforesaid articles were sent for examination to CHC, Pathariya vide Ex. P/ 11 and report of the doctor is Ex. P/12. Inquest over the dead body was prepared vide Ex. P/4. Site plan was prepared vide Ex. P/5. Wearing apparels of the deceased in a sealed packet received from hospital were taken into possession vide Ex. P/20. Bloodstained Baniyan, Lungi and Gamchha of the deceased were taken into possession on being produced by Sukritdas - Kotwar vide Ex. P/21.

After completing investigation, charge sheet was filed against the accused Appellants in the Court of learned Judicial Magistrate First Class, Mungeli, who in turn committed the case to the Court of Sessions Judge, Bilaspur and the same was received on transfer for trial by the learned Additional Sessions Judge.

Learned trial Court framed charge u/s 302/34 or in the alternative 302 and Section 323/34 of the IPC against the Appellants, who abjured their guilt. The prosecution in order to establish the charge against the accused/Appellants examined 14 witnesses in all. Thereafter, statements of accused/Appellant were recorded u/s 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication.

Learned trial Court after hearing counsel for the respective parties, convicted & sentenced the Appellants as mentioned in para-1 of this judgment.

Homicidal death of Mouj iram is not in dispute. Even otherwise, from the evidence of injured eyewitness Karan Singh (PW-1), eyewitness Jaguram (PW-2), Vipatram (PW-3), Dr. P.K. Singh (PW-10), who examined the deceased and found one incised wound of size 12 x 1 x 1 cm vide injury report of Ex. P/8, and evidence of Dr. S. Chhatterjee (PW-6), who conducted postmortem over the person of the deceased and gave the report of Ex. P/6, in which he found one incised wound of size 13 x 1 cm x bone deep on the left frontal region of Moujiram and also noticed 8 cm long fracture of fronto parietal bone, extra dural haematoma and sub dural haematoma present on the same spot and opined that injury was caused by sharp edged object, cause of death was shock and excessive bleeding, as a result of injury present over the head and death was homicidal in nature, homicidal death of Moujiram is established.

Shri P.K.C. Tiwari, learned Sr. Advocate appearing for the Appellants, argued that the FIR was lodged by Karan Singh, who sustained simple injuries in the same incident, however, there is no allegation against Appellant Ramchandra that he caused simply injury to the complainant. Independent witnesses Jangalram Lodhi, Gangu Yadav, Ramnath Lodhi who intervened and whose names find place in the FIR that they have seen and heard about the incident, have not been examined by the prosecution. There is evidence that number of persons gathered on the spot, however, none of the independent witnesses has been examined, though available. It was further argued that the alleged eyewitness Ramnath, Jaguram (PW-2), Vipatram (PW-3) were prosecuted in connection with S.T. No. 96/02 and were also convicted by the trial Court on the same date. Criminal Appeal No. 612/03 at their instance is pending before this Court for adjudication. The other eyewitnesses are namely Sukritdas (PW-5), T.B. Bai (PW-7) and Bhagwandas (PW-8). Karan Singh is son of the deceased whereas T.B. Bai is widow of the deceased and Jaguram is elder brother of the deceased and Vipatram and Ramnath are uncle and brother of the deceased respectively. Thus, all the eyewitnesses, who have been examined by the prosecution, are highly interested witnesses being close relatives of the deceased.

It is further argued that by the time, the complainant party reached police station, the Appellants had already lodged report on 20.7.2001 at 23.30 hours against Vipatram, Ramnath, Jaguram and deceased Moujiram Lodhi. Both the Appellants had sustained injuries, which is established from their medico legal examination reports of Ex. D-6A and D-8. Both of them sustained injuries over head, which caused bleeding. They were advised for X-ray and only after X-ray, in the absence of bony injury, it was described as simple in nature. There is evidence available on record that Moujiram and Ramchandra both were carrying sticks and quarrel was started by Moujiram. The witnesses examined by the prosecution have not explained the injuries over the person of the Appellants and as such, have suppressed genesis and origin of crime. Considering the evidence available on record and injuries over the persons of the Appellants, the prosecution story becomes suspicious and doubtful, and possibility of exercise of right of private defence by the Appellants cannot be ruled out. Weapons of offence have not been seized from the Appellants and therefore, the same cannot be considered to be an incriminating evidence and the explanation in this regard that the Appellants left the weapon of offence on the spot after the incident and the same were taken by the complainant, is not established by reliable evidence.

Appellant Tarachand has been convicted u/s 302/34 of IPC. However, overt act alleged against him is not clearly established as alleged eyewitnesses Karan Singh, Jaguram and Vipatram have deposed that Tarachand inflicted injuries on the foot without specifying the part of the foot, on which injuries were inflicted, whereas, PW-7 T.B. Bai has alleged that he caused injuries on the back. The above allegations against Tarachand do not find place in the FIR. The doctor performing autopsy has also not noticed any injury on right or left foot of the deceased. In these circumstances, conviction of the Appellant Tarachand u/s 302/34 of IPC is liable to be set aside.

Reliance is placed on the judgments in the matters of Ranbaj Singh v. State of Punjab AIR 2006 SCW 5708 and Sarvesh Narain Shukla v. Daroga Singh and Ors. AIR 2007 SCW 6843.

On the other hand, learned Counsel for the State has supported impugned judgment of the trial Court.

Reliance is placed on the judgments in the matters of Babulal Bhagwan Khandare v. State of Maharashtra 2005 SCC (Cri) 1553 Namdeo v. State of Maharashtra AIR 2007 SCW 1835 and State of U.P. Vs. Satish, .

We have heard learned Counsel for the parties. We have also perused the record of the trial Court as also the impugned judgment.

The trial court relying upon the evidence of Vipatram (P W-3) and Dr. S. Chhatterjee (PW-6), who conducted postmortem on the person of deceased Moujiram and proved his report of Ex. P/6, has held that deceased Moujiram died homicidal death. Further relying upon the evidence of injured eyewitness Karan Singh, eyewitnesses Jaguram, Vipatram, T.B. Bai, has held that there was some marpeet on Hariyali day between the accused persons and the injured persons in relation to Panchayat election and some announcement made by the Kotwar and in the same incident, the Appellants assaulted the deceased with sword and lathi and thereby, caused his death. It has been further held that after committing the offence, the Appellants left the weapons of offence on the place of incident and ran away, which was taken to police station by complainant Karan Singh and the same was seized on being produced by Karan Singh on the date of incident itself. Anomalies present in the prosecution case are not of such a nature that the whole prosecution case may be disbelieved.

PW-1 Karan Singh, injured eyewitness of the incident, went to police station with Kotwar Sukritdas and lodged the report of Ex. P/1. He and his father Moujiram were referred to hospital for medical examination. He was examined by Dr. P.K. Singh (PW-10) and his medico legal examination report is Ex. P/10 dated 21.7.2001, in which one abrasion of size 3 � 0.5 cm on the left elbow, one spindle shaped tenderness swelling on the left elbow joint, joint moment restricted, were found. This witness has deposed that on 20.7.2001 on Hariyali day at about 6 pm he heard abuses being hurled in front of his house in the village Gali. He saw that Ramchandra wielding sword and Tarachand wielding lathi, were orally abusing and threatening Ms father Moujiram. Ramchandra assaulted his father with sword on his head, whereas Tarachand assaulted by lathi on both his thighs. When he intervened, Tarachand assaulted him on his elbow, left leg and thigh. His father sustained injuries over head and both thighs. Jaguram, Chandrashekhar, Rishi Kumar, Ramnath, Motiram, Salika, Sukritdas, Daduram, Leelaram, T.B. Bai, Dwarikabai, Shankaiial, Vijay Kumar came there and intervened. On their arrival, both the accused persons ran away leaving sword and lathi. His father fell on the spot and became unconscious.

He went to Police Station-Pathariya with Kotwar Sukritdas and lodged the report of Ex. P/1. The police took him and his father to Pathariya hospital, where they were medically examined. His father was, thereafter, referred to Bilaspur hospital, who died on the same day. Article'' A''-sword and Article ''B''-lathi, are the same weapons by which Ramchandra and Tarachand assaulted his father. The same were seized vide Ex. P/2. He has also deposed that the accused persons assaulted them on account of Panchayat election related grudge. In the cross-examination, he has admitted that Panchayat elections took place 1 Vi-2 years before the incident. In the said election, mother of Ramchandra was defeated by Premibai and because of the above animosity, his father was assaulted. However, he has denied the suggestion that after the Panchayat election, his father was not on talking terms with the accused persons. He has further expressed ignorance about any announcement made by the Village Kotwar. He has denied that when he came out of his house, he was accompanied by Vipat, Jaguram and Ramnath. He has also denied that the above three persons accompanying his father had atmsed Ramchandra and beat him, whereupon Tarachand came to save Ramchandra. He has also denied that he came out with sword. However, he has admitted that a case is pending against Jaguram, Vipat, Ramnath and his father in connection with the same incident.

He has denied the suggestion that when he was trying to assault the accused persons by sword, Moujiram came in between and was hit by sword on his head. He has accepted the suggestion that the accused persons had already reached the police station when they reached there. He did not see any injury on their person and he is not aware if they were referred for X-ray. Omission in his FIR with regard to leaving sword and lathi on the spot, assault by Tarachand on his father''s thighs, presence of the villagers, whose names do not appear in the FIR, the fact that his father became unconscious and he brought his father on a cot, have been pointed out. He has denied the suggestion that Tarachand did not assault his father by lathi or sword.

PW-2 Jaguram has also deposed that on the date and time of incident, he was sitting in his verandah when Ramchandra came there with lathi. He was filthily abusing for supporting Moujiram in election. At that time, Sukritdas, Patel, Dadura, Vipatram and Moujiram were also sitting. Ramchandra tried to assault him by lathi, which he stopped by his hand. Thereafter, Ramchandra went back to home and returned with his brother Tarachand. At that time, Tarachand was holding lathi and Ramchandra sword. Both came there abusing. Ramchandra assaulted Moujiram with sword on his head, whereas Tarachand assaulted Moujiram on his leg. Moujiram sustained injuries over head and leg and fell there. They tried to intervene and in the process, Tarachand assaulted Karan Singh also by lathi on his hand and leg. Thereafter, the accused persons ran away leaving sword and lathi on the spot. After the incident, 8-10 persons of Mouj iram''s family went to police station with Kotwar Sukritdas. They also took Moujiram on cot. Moujiram was not able to speak; he was referred to Bilaspur hospital. He also accompanied Moujiram to Bilaspur Hospital, where he died.

He has denied the suggestion that after snatching lathi from him, they beat Ramchandra and on hearing his shouts, Tarachand came there and intervened. He has also denied that he had consumed liquor as it was Hariyali day and under the influence of liquor, they had committed marpeet. He has also denied that sword belongs to Karan Singh. He has further stated that they had placed sword and lathi over the cot, on which Moujiram was taken to police station. Some insignificant omissions have been pointed out in his diary statement of Ex. D/1 in the cross-examination.

P W-3 Vipatram has also given similar version in his deposition before the Court.

PW-5 Sukritdas is the Village Kotwar. This witness has deposed that on the Hareli day, on being asked by Ghanaram, father of Appellant Ramchandra. that cattle are freely roaming in the village and causing damage to the crop, he had started making announcement. When he reached near the house of Mahila Sarpanch, he saw in front of house of Moujiram that Ramchandra and Moujiram were engaged in arguments. At that time, Ramchandra tried to assault Jaguram by lathi, Jaguram snatched his lathi and Mouj iram assaulted Ramchandra by a bamboo stick, whereupon Ramchandra went to his home and came back with a sword and Tarachand came with a lathi. Moujiram tried to defend the assault by Gedi (bamboo stick), as a result, sword fell in the mud. Thereafter, Tarachand assaulted Moujiram on his head by lathi and Ramnath assaulted Tarachand. He has further stated that he accompanied Moujiram, Deepak Ram, Jagu and Karan to Police Station-Pathariya. Since Moujiram was not able to walk, he was taken on a cot. Moujiram fainted at Pathrigarh. In the cross-examination by the prosecution, he has admitted that Ramchandra was holding sword. He did not see injury of sword on the head of Moujiram.

PW-7 T.B. Bai has also been examined as an eyewitness. She is wife of deceased Moujiram. She has also deposed that she saw the Appellants armed with sword and lathi and assaulting her husband. Though there is discrepancy in her examination-in-chief with respect to assault by the Appellants on the person of deceased and the injured witness Karan Singh.

P W-8 Bhagwandas has deposed that Ramchandra and Jaguram were engaged in oral arguments, both were holding lathi, Moujiram assaulted Ramchandra on his hand by Gedi, whereupon Tarachand came and intervened. Tarachand was also assaulted by Ramnath by club on his head and Jagu assaulted Tarachand on his hand by lathi. Thereafter, Karan brought sword from his home. When Karan tried to assault Ramchandra by sword, Moujiram stopped his son and the sword struck on the head of Moujiram. This witness has been declared hostile and cross-examined by the prosecution.

PW-4 Bhagirathi and PW-9 Santram, are witnesses of seizure. Bhagirathi has deposed that Article ''A'' - sword and Article ''B'' -lathi were seized from Karan Singh at Police Station - Pathariya. PW-9 Santram has also deposed that he recognizes Karan Singh; sword and bamboo stick were seized vide Ex. P/2.

PW-11 L. Tigga has proved the seizure of sword and lathi from Karan Singh vide Ex. P/2. He has also admitted that in the same incident, he had registered an offence against Vipatram on the basis of report of Ramchandra and after investigation charge sheet of Ex.D/8 was filed against Vipatram, Ramnath Lodhi, Jaguram Lodhi and deceased Moujiram. He has also admitted that the statements of Vipatram and Jaguram were recorded on 26.7.2001 whereas statement of Sukritdas was recorded on 9.8.2001 and sword was seized on 22.7.2001.

Learned Counsel for the Appellants has impugned the judgment on the ground that independent witnesses, whose names have been mentioned in the FIR have not been examined during trial. Conviction is based on the evidence of PW-1 Karan Singh, PW-2 Jaguram, PW-3 Vipatram and PW-7 T.B. Bai, who are near relatives of the deceased and are highly interested witnesses. They had participated in the incident and assaulted the accused persons, as a result, Vipatram, Ramnath and Jaguram were prosecuted and they have also been convicted by the trial Court. They have not offered any explanation with respect to the injuries present over the person of the Appellants and in these circumstances, the trial Court was not justified in convicting the Appellants by placing implicit reliance on the evidence of aforesaid witnesses as they have suppressed the genesis and origin of the offence.

It is true that on the date of incident, on the complaint of Ramchandra, the offence was registered on 21.7.2001 against deceased Moujiram and the prosecution witnesses. After completing investigation, charge sheet was filed against Vipatram, Ramnath and Jaguram u/s 294, 323, 506(B) and 34 of the IPC vide Ex. D/8. It appears that in the same incident, some quarrel took place between the Appellants party and the deceased party, as a result, the Appellants too sustained simple injuries.

In the matter of Ranbaj Singh, the accused in his statement u/s 313 of Code of Criminal Procedure took a definite stand that he along with his son Ranbaj Singh were fixing the branches of thorny bushes in the field to save their crop from strayed cattle of the deceased party. The deceased party came there and objected to fixing of bushes, however, the son did not agree, whereupon deceased party started inflicting sota blows on the head of his son, as a result, he fell on the ground. The deceased continued to gave blows to his son and therefore, in order to save his son, the accused gave Kandhali blow from its blunt side on the head of the deceased. On the basis of evidence available on record, it was held that the defence has substantiated that the son of the accused received injuries in the incident and the accused in order to save his son, gave Kandhali blow from its reverse side and thus, right of private defence of the accused is established from the prosecution evidence. The trial Court had convicted the Appellant u/s 304 Part-II of the IPC, however, the High Court reversed the above finding and convicted him u/s 302 of IPC. In these circumstances, the Hon''ble Supreme Court allowed the appeal and affirmed the view taken by the trial Court and convicted the Appellant u/s 304 Part-II of the IPC.

In the matter of Sarvesh Narain Shukla, the Hon''ble Supreme Court in para-16 of its judgment held that the evidence of hostile witness cannot be rejected out rightly and both the parties are entitled to rely on such part of their evidence, which assists their case.

In Babulal Bhagwan Khandare while considering the effect of non-explanation of injuries on accused by the prosecution, it has been held that mere non-explanation of the injuries by the prosecution may not affect the prosecution in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. While considering whether the right of private defence is available to an accused or not, it has been held that the injuries sustained by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities, are all relevant factors to be considered.

In the case of Namdeo, it has been held that a witness who is relative of the deceased or victim of a crime cannot be characterized as ''interested''. The term ''interested'' postulates that the witness has some direct or indirect ''interest in having the accused somehow or other convicted due to animus or for some other oblique motive''. However, the evidence of relative witness must be scrutinized carefully. If the evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the ''sole'' testimony of such witness. Close relationship of witness with the deceased or the victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. It has been further held that where the assault is made by the accused over head of the deceased, and the injury is found to be sufficient to cause death in ordinary course of nature as per medical evidence, the case is covered by Section 300 and not Section 304, Part-II of the IPC.

In the matter of State of U.P. v. Satish while considering objection with regard to delay in examination of witnesses during investigation, it has been held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses, the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect.

On close scrutiny of the evidence of PW-1 Karan Singh, PW-2 Jaguram and PW-3 Vipatram, we are of the opinion that version of these witnesses with respect to the manner in which the offence was committed, is consistent and trustworthy. They corroborate each other on material particulars. The defence in lengthy cross-examination of these witnesses could not impeach their credibility, their version is also corroborated from the medical evidence as corresponding injuries have been noticed on the head of deceased Moujiram, which have been duly proved by Dr. P.K. Singh, who conducted medico legal examination and referred the deceased to District Hospital for further treatment where he died on the date of incident.

The injuries sustained by injured witness Karan Singh has also been proved by Dr. P.K. Singh. Their above version is further corroborated from the promptly lodged FIR. There is consistent evidence available on record that the weapons of offence were seized on being produced by PW-1 Karan Singh on the date of lodging of FIR. This version has been supported by PW-2 and PW-3. In these circumstances, we are of the opinion that this aspect cannot be discarded only on the ground that the above fact is not mentioned in the FIR, particularly when the seizure of weapons of offence has been made promptly.

So far as non-explanation of the injuries over the accused persons is concerned, it is not in dispute that on the basis of report of accused Ramchandra in connection with the same incident, three of the prosecution witnesses were prosecuted for the offence punishable under Sections 323, 294, 506(B), 34 of the IPC. So, it cannot be said that the investigating agency has deliberately suppressed the fact of injury over the person of the accused. From the evidence available on record, it appears that the incident took place in three parts; initially, Appellant Ramchandra was present alone and was using abusive language in front of house of the deceased, however, he was pacified and he returned home. He again came back with lathi and some quarrel took place. When his lathi was snatched by Jaguram, he being infuriated by this, returned to his home and came back with sword accompanied by his brother Tarachand, who was also holding lathi and gave a sword blow on the head of the deceased. The manner, in which the assault has been made by a deadly weapon - sword on the vital part of the body - head of the deceased, establishes that intention of the Appellants was to cause death of Moujiram. The doctor performing autopsy has opined that the injuries were fatal in nature and the death was homicidal in nature.

Thus, from the evidence available on record, we are of the opinion that Appellant Ramchandra himself was responsible for picking up quarrel with the deceased and other witnesses, which resulted into homicidal death of Moujiram. Version of injured eyewitness Karan Singh, Vipatram, Jaguram cannot be discarded solely on the ground that they happen to be the relatives of the deceased and as such, interested witnesses and they are also prosecuted for causing simple hurt to the Appellants. The Appellants have taken a defence by way of suggestion that Karan Singh came up with a sword and tried to assault Ramchandra, however, the sword accidentally hit the head of Moujiram as he came in between. However, they have not taken such plea in their statements u/s 313 of Code of Criminal Procedure and no defence witness has been examined to substantiate the above defence. Though PW-8 Bhagwandas has supported the above defence, however, considering his police statement of Ex. D/5 and further considering the overall evidence available on record, we are of the opinion that the trial Court has rightly rejected the above defence of the accused persons.

It is trite law that it is not the number of witnesses but the quality of evidence, which is required to be taken note of by the courts for ascertaining the truth of allegations made against the accused. It is not necessary that all those persons who were present at the spot must be examined by the prosecution to prove the guilt of the accused. Section 134 of the Evidence Act provides that no particular number of witnesses is required for proving any fact. We cannot lose sight of the fact that ghastly act when committed in a public place, may very well create a sense of fear and shock in the minds of witnesses and thus, prevent them from coming forward and deposing against the perpetrators of the crime. If the testimony of those witnesses, who have deposed during trial or otherwise found to be reliable, trustworthy and cogent, the said evidence cannot be disbelieved or discarded merely because the prosecution has failed to examine other witnesses allegedly present on the spot. Due or proper weight and consideration must be given to the trial Court''s decisions. This is specially true when credibility of a witness is at issue.

Thus, in our considered opinion, the trial Court was justified in reaching to the conclusion that the injury present over the head of the deceased was caused by Appellant Ramchandra and there is no substantial and compelling reason for holding that the trial Court was wrong.

Appellant Ramchandra has been also convicted under Sections 323/34 of the IPC. However, there is no evidence that the Appellants in furtherance of their common intention to cause simple hurt to PW-1 Karan Singh attacked him and Appellant Ramchandra participated and caused simple hurt to Karan Singh. In the absence of any material regarding formation of common intention by the two Appellants, conviction of Appellant Ramchandra u/s 323/34 of IPC cannot be upheld.

Appellant Tarachand has been convicted u/s 302/34 of IPC for causing homicidal death of Moujiram and u/s 323/34 of IPC for causing simple hurt to Karan Singh. Overt act attributed to this Appellant is that he assaulted the deceased with lathi on Ms foot. PW-1 Karan Singh has deposed that Appellant Tarachand inflicted injuries on both thighs of Moujiram, however, in the FIR it is mentioned that both the accused persons armed with sword and lathi came running in front of house of his father; Ramchandra assaulted his father by sword on his head, whereupon he fell on the ground and thereafter, Tarachand assaulted him with lathi. Tarachand also assaulted him by lathi, as a result, he sustained injuries on his left elbow and left thigh. He has further stated that his father sustained injuries caused by sword. There is no mention that Tarachand assaulted the deceased on both his thighs. PW-2 and PW-3 have also deposed that Tarachand inflicted injury on the foot of the deceased, without specifying right or left or the part, whereas PW-7 has deposed that Appellant Tarachand inflicted injury on the back of the deceased by lathi. However, in the medico legal examination report of Moujiram as also in his postmortem report, no injury has been mentioned on the thighs or back of the deceased. Thus, the overt act attributed to Appellant Tarachand of inflicting injuries on Moujiram is not established.

In the absence of any evidence of formation of common intention of committing murder of Moujiram, conviction of Appellant Tarachand u/s 302 with the aid of Section 34 cannot be sustained. However, from the evidence of complainant Karan Singh and other eyewitnesses and further from the evidence of Dr. P.K. Singh, who has proved the injuries present over the person of Karan Singh, charge against Appellant Tarachand u/s 323 of IPC stands established.

In the resalt, appeal is partly allowed. Conviction of Appellant Ramchandra u/s 302/34 of IPC is altered and he is convicted u/s 302 of the IPC for causing homicidal death of Moujiram and sentenced to undergo life imprisonment, pay a fine or Rs. 1,000/-, in default thereof, to undergo additional RI for six months. However, his conviction u/s 323/34 of IPC and sentence imposed thereon, are set aside.

Similarly, conviction of Appellant Tarachand u/s 302/34 of IPC for causing homicidal death of Moujiram is set aside and he is acquitted of the above charge. However, his conviction u/s 323/34 of IPC is altered and he is convicted u/s 323 of IPC for causing simple hurt to Karan Singh, and sentenced to pay a fine of Rs. 500/-, and in default of payment of fine, to undergo R.I. for two months. Appellant Tarachand is on bail, therefore, his bail bonds stand discharged. If fine amount has already been deposited, he need not surrender.