Yemula Yellaiah and others vs State of A.P.

K.C. Bhanu, J.—This appeal u/s 374(2) of the Code of Criminal Procedure is directed against the judgment in S.C. 16 of 2001 on the file of II Additional Sessions Judge, Fast Track Court-1, Khammam whereunder A1 to A11 were found guilty u/s 148 IPC and sentenced to undergo three years rigorous imprisonment, A1 to A3 are sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/- in default to undergo simple imprisonment for one month u/s 302 IPC, A4 to A11 are sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/- in default to undergo S.I. for one month under Sec.302 read with 149 IPC and further A1 to A11 are sentenced to undergo RI for three years u/s 324 r/w 149 IPC and that all the sentences are directed to run concurrently.

The case of the prosecution as unfolded by the witnesses examined may be delineated as follows.

All the accused were the coolies under the deceased Vemula Peda Venkaiah. On 11.3.1997 all the accused and some of the relatives of the deceased cut a pig and shared among them. At about 7.30 p.m. in the night A1 picked up a quarrel with Vemula Nadipi Venkaiah. Then the deceased admonished both of them and sometime thereafter all the accused went to the street in which the deceased was residing and A2 called the deceased outside. There upon A1 sprinkled chili powder on his face. A2 hacked the deceased with an axe on his head. Then A1 beat the deceased on his head with stick. Then A3 beat with a pestle on his head. When PWs.1, 4, 7 and 9 intervened, they were also beaten by the accused. Then the deceased Venkaiah fell down. There upon he was shifted to Government hospital, Khammam in an auto. By that time the deceased died. The injured persons were also brought to the Government hospital, Khammam by the police. Basing on the report given by PW1, PW14 registered a case in Cr.No.41/97 under Sections 147,148,302,307,324 r/w 149 IPC on 11.3.1997. After recording the statement from PW1 at 10 p.m. in the Government hospital, Khammam he informed about registration of the case to the C.I. of Police PW18, who took up the investigation. He posted the guard at the scene of offence. He examined PWs 1 to 5 and others at Government Headquarters Hospital, Khammam on 12.3.1997. He observed the scene of occurrence in the presence of PW11 and others and seized MO1 blood stained earth and MO2 control earth and prepared rough sketch Ex.P2. He got the photographs Exs.P6 to P12 taken. He also got the photographs taken on the dead body of the deceased through PW15. He held inquest on the dead body of the deceased in the presence of PW12 and another. After inquest, the dead body was sent to post-mortem examination. PW14 is the doctor who conducted autopsy over the dead body and found 5 lacerated injuries and two contusions and opined that the cause of the death was due to injuries on the vital organs. On 31.3.1997 at about 6 p.m. PW18 arrested A1 to A4 at the house of A2. In pursuance of the confessional statement given by A1 blood stained stick MO5, on confessional statement of A2 blood stained axe MO6 and on the confessional statement of A3 blood stained pestle and on the confessional statements of A4 to A6 three sticks were seized under mediators report. The accused were sent to judicial custody. The material objects were sent to Forensic Science Laboratory. After receipt of F.S.L. report and after completion of investigation, PW18 filed the charge-sheet before the II Additional Judicial First Class Magistrate, Khammam. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions by the learned Magistrate. The case was taken on file by the learned Sessions Judge in S.C. 16 of 2001. After hearing both sides and considering the material on record, charges under Sections 147, 148, 302, 307 and 324 r/w 148 IPC were framed against the accused. When the charges were read over and explained to the accused, the accused pleaded not guilty and claimed to be tried.

To substantiate the case of the prosecution, it has examined PWs. 1 to 18 and marked Exs.P1 to P19 besides marking of case properties MOs. 1 to 9. On behalf of the accused, DW1 examined and Exs.D1 to D10 were marked. The learned Sessions Judge having accepted the prosecution case found the accused guilty and accordingly convicted and sentenced them as aforesaid. Challenging the same, the present appeal is filed.

Learned senior counsel appearing for the appellants Sri C.Padmanabha Reddy contended that there are number of circumstances to indicate that the incident did not take place in the manner spoken to by the prosecution witnesses; that the prosecution suppressed the genesis and origin of the attack and the prosecution did not explain the serious head injuries received by A5, A6 and A10; that the medical evidence is not completely in corroboration with the ocular testimony in view of the fact that it is alleged by the prosecution that A2 hacked the deceased with an axe but there was no cut injury on the head, and further contradiction is that the witnesses stated that they were beaten with stick but the doctor who examined the injured witnesses noticed incised injuries; that there was no enmity of whatsoever existing between the accused and the deceased; that it is not a pre-planned attack or with a common object but in a drunken brawl and in the course of sudden quarrel both the groups attacked each other and therefore convicting the accused 4 to 11 with the aid of Section 149 IPC cannot be sustainable; that no specific overt acts are attributed against A3 in the FIR and therefore he prays to set aside the conviction and sentence recorded by the learned Sessions Judge.

The learned Public Prosecutor appearing for the Sate contended that all the accused and the incident took place near the house of the deceased and after the incident all the accused ran away from the scene of occurrence; that all the accused were armed with sticks and other weapons and under those circumstances the common object of all the accused can be inferred and it is immaterial that A4 to A11 caused any injuries to the deceased once it is found that they were the members of unlawful assembly; that PWs. 1,4,7,8 and 9 were the injured witnesses and unless there are compelling reasons, their testimony cannot be disbelieved. Since there is no enmity for the witnesses against the accused, the false implication does not arise. The eye-witnesses'' account of the incident insofar as A1 to A3 in causing the death of the deceased is concerned it is consistent and hence A4 to All though not caused any injuries to the deceased, they were rightly convicted with the aid of Section 149 IPC as they have shared the common object with accused 1 to 3 and therefore there are no grounds to interfere with the conviction and sentence recorded against the accused. Hence he prays to dismiss the appeal.

Motive in a criminal trial, especially in a murder case, is always relevant. There must be reasons which provoke or motivate a man to commit the serious crime of murder. The motive being the state of mind, there may not be able to know as to what was the motive for a particular offence. Failure of prosecution to prove the motive in a criminal trial is not always fatal, especially when there is eyewitnesses'' account for the occurrence and the evidence of the witnesses inspires confidence and can be placed in the category of wholly reliable evidence.

Even according to the prosecution, there is no enmity between the prosecution witnesses and the accused. PWs. 1, 3 and 9 have categorically stated that they had no disputes with the accused. So also, it is in the evidence that there are no political or property or personal disputes between the witnesses and the accused. Prosecution could not show any motive for the attack. Simply because the prosecution could not adduce any evidence to show the immediate motive for the incident, that does not mean that no incident has taken place and on that ground alone the accused cannot be said to been titled for acquittal.

There is no dispute about the scene of occurrence. The incident that has taken placer is in between H.Nos.2-68 and 2-66 of Vaddera Colony, Ballipalli. It is suggested to the witnesses that the prosecution witnesses and the accused quarreled among themselves over sharing of balance of liquor and no body knows who received injuries at whose hands and both the groups sustained injuries, thereby the accused also admitted the scene of occurrence. According to them there was a free fight between the two groups and it is not possible to conclude as to who received injuries at whose hands.

The incident has taken place at about 8.30 p.m. The prosecution witnesses did not speak about the source of light or as to how they could be in a position to identify the accused. But as seen from the crime details form, there is an electric pole situated at a distance of 20 yards from the occurrence. If that is the case, it must be fitted with a bulb and in the illumination of the light there is every possibility for the witnesses to identify the accused in view of the fact that except A2, A7 and A10 all other accused are residing in the same street in which the prosecution witnesses are residing. Even otherwise, it is not the case of the accused that at the time of the incident there was dark and there was no possibility for the witnesses to identity the accused.

PW12 is one of the inquest mediators who stated that on 12.3.1997 the police conducted inquest on the dead body of the deceased under Ex.P3 on 12.3.1997. MOs 3 and 4 were recovered during the inquest. Except suggesting that he attested the inquest report in the police station, nothing has been elicited to discredit the testimony of PW12. PW18 is the Inspector of Police who conducted inquest. The inquest mediators opined that the deceased died as a result of injuries sustained by him.

PW 14 is the doctor who conducted autopsy on the dead body of the deceased on 12.3.1997 at 12.15 p.m. on the requisition of PW18 and found the following injuries:

Laceration 6x2x1/2cm on left frontal region.

Laceration 2x1x1/2cm on left parietal region.

Laceration 3x1x1cm on right temporal region.

Laceration 2x1cm on right occipital region.

Laceration 2x1x1cm on right occipital region.

Contusion 5x4cm on right scapula.

Contusion 2x1cm on right deltoid.

She further stated that all the injuries were caused by blunt object and all the injuries were ante mortem in nature. There was a fracture on the base of the skill and there was a laceration of the brain on the temporal region. The cause of death according to her was due to the injuries on the vital organ i.e. brain. The time of death was 12 to 24 hours prior to post-mortem examination. Ex.P5 is the post-mortem examination report issued by her. When a suggestion was given that all the lacerated injuries are possible by a blunt object but not like MO6 axe, the same was denied. No doubt, in general the lacerated injuries will be caused with blunt object but at the same time the possibility of causing lacerated injuries with an axe or sharp edged weapon may also be possible when the injuries are caused on bony part of the body. Therefore, the evidence of PW14 doctor is very clear that the deceased died as a result of injuries on the head. Injuries on the head of the deceased are bone deep and grievous in nature. The Medical evidence leaves no doubt to conclude that the death of the deceased is homicidal.

PWs. 1,4,7,8 and 9 are the injured eyewitnesses. PW16 is the doctor who examined PW9 on 11.3.1997 at 10.30 p.m. and found the following injuries.

Incised (laceration) injury 1"x1/4"x1/4" over the upper lip.

Incised (laceration) 2"x1/4"x1/4" over the root of the nose.

Incised (laceration) injury 1"x1/4"x1/4" over the right eyebrow.

Laceration 3-1/2"x1/4"x1/4" over the left parietal region of the scalp.

Two contusions 3"x1/2" each over the left side of the chest.

contusion 3"x2" over the right side of the chest.

Contusion 3"x2" over the right parietal region of scalp.

Loosening of central two canine of premolar one, molar two over the left upper jaw.

According to the doctor, they are simple in nature and injuries 1 to 4 could have been caused by a sharp weapon and injuries 5 to 8 would have been caused by a blunt weapon.

On the same day, he examined PW8 and found the following injuries:

Incised (laceration) 1"x1/4"x 1/4" over the left occipital region of scalp.

Incised (laceration) 1"x1/2"x1/4" over the right parietal region of scalp.

Incised (laceration) 2"x1/4"x1/4" over the lateral to left eye.

Contusion 3"x3" over the left eye.

3 contusions 8"x1",4"x2", 1/2"x1" over the back left side.

Incised (laceration) 1"x1/4"x1/4" over the left arm.

Two contusions 2"x1" each over the left lumbar region of the abdomen.

Laceration (incised) 1"x1/4"x1/4" over the right elbow joint.

Two abrasions 1/2"x1/2" over lateral to right eye.

Abrasion 1/2"x1/4" over the right ear.

Injury Nos. 1,2,3,6 and 8 are caused by sharp weapon and rest of the injuries are caused by blunt weapon. All the injuries are simple in nature.

He also examined PW7 and found the following two injuries:

Incised (laceration) 2"x1/4"x1/4" over the left parietal region of scalp.

Incised (laceration) 4"x1/2"x 1/2" over the right eye brow.

He also examined PW4 and found the following injuries:

Laceration (incised) 3"x1/4"x1/4" over the left parietal region of the scalp.

Laceration (incised) above the left eye brow lateral 1/3rd.

Contusion 6"x1" over the left shoulder.

He opined that injuries 2 and 3 were simple in nature and no opinion could be given insofar as 1st injury is concerned. Injuries 1 and 2 might have been caused with a sharp weapon and 3rd injury by a blunt weapon.

He also examined PW1 and found the following injuries:

Laceration 1/2"x1/4"x1/4" over the left parietal region of the scalp.

Complaining injury over the right arm, but there is no external injury. There is tenderness.

Nothing has been elicited to discredit the testimony of PW16 and Exs.P.13 to P17 are the wound certificates. Some of the injured received injuries on the head which were serious in nature. He admitted that according to Modi Medical Jurisprudence all the lacerated wounds invariably would be caused by blunt object, but at the same time he did not eliminate the possibility of causing incised wound with a blunt object.

Before accepting and relying upon the evidence of an injured witness, it has got to be closely scrutinized by examining it from the following angles:

(1) Whether the alleged injury was received in the course of same transaction/incident only?

(2) Whether the accused was previously known to the injured?

(3) Whether there was sufficient light at the time and place of the incident to identify the accused?

(4) Whether the injury so received on the person of a witness rules out the case of self-inflicted injury?

The evidence of injured witnesses is entitled to weight. An injured witness in any case would not easily substitute a wrong person for his actual assailant, but his evidence should be scrutinized by applying the test of probability. It is relevant to mention here that a decision of the apex Court in State of Madhya Pradesh Vs. Mansingh and Others, wherein it is held "the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly."

Merely because there was no mention of knife used in the commission of offence by the assailants of the injured witnesses in their statements, that does not wash away the evidence tendered by the injured witnesses. According to Modi Medical Jurisprudence, in India most injuries are homicidal and are generally produced by a blunt weapon and occasionally by a cutting instrument such as axe or sword. The injuries are mostly contusions and lacerated wounds as well as incised and punctured wounds. A skull wound by a blunt weapon may presumably be an incised one. Hence the adjacent ends of the wounds must be clearly seen to make out a tom edge from a cut and also to distinguish a crush air bulb from one cut or torn.

The presence of PWs. 1,4,7,8 and 9 who are injured witnesses at the relevant point of time at the incident has not been specifically denied or disputed. It is an admitted fact that they received injuries in the same transaction even according to the accused but the accused say that in the scuffle or a free fight they received the injuries at the hands of unknown persons. PW1 stated that A4 beat on his head with a stick whereas A5 beat PW8 (LW12) on the forehead with a stick whereas A6 beat PW7 (LW11) with a stick on the forehead. The other accused beat PW9 and M.China Lingaiah, whereas PW4 stated that A1 and A6 beat PW7, A4 beat him with a stick on his head, A3 beat him with a pestle on eyebrow and A8 beat him on left shoulder and A9 beat PW9 on the mouth. PW7 is another injured witness who has categorically stated that A7 beat him with a stick on his shoulder, A6 beat him with a stick on his forehead and A8 beat him on the backside of head. PW8 has categorically stated that A4 beat PW1 with a stick on his head, A5 beat him with a stick on his left eye, A6 beat him with a stick on his head and A11 beat him with a stick on the backside of his head. Whereas PW9 stated that A4 beat PW1, A9 beat him with a pestle on his mouth and A10 beat him with stick on right eye. No doubt some of the injured witnesses stated that some of the accused beat them with sticks but none of the witnesses stated about using of sharp edged weapon by the accused. So on this ground the learned senior counsel appearing for the appellants-accused contended that the genesis and origin of the occurrence has been suppressed by the prosecution.

It is pertinent to refer to a decision in Main Pal and Another Vs. State of Haryana and Others, 2004(1) ALT(Cri.) 380(SC): (2004) 10 SCC 692, wherein it is held: "If the eye-witnesses'' version even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses'' evidence. The opinion of the doctor cannot have any binding force and cannot be said to be the last word or what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analyzed and tested in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him."

It is a fact that when a person received head injury there was scope or possibility that the cut injuries or incised injuries could have been caused with a blunt object. Even it is not suggested to PW16 that the incised injuries received by PWs. 8 and 9 could not have been possible by a blunt object. Therefore, the evidence of PWs1,4,7,8 and 9 inspires confidence in view of the fact that they have no enmity or grouse against the accused admittedly even before the incident and therefore the question of false implication does not arise.

Insofar as receiving of injuries by the deceased Vemula Peda Venkaiah is concerned, the evidence of PWs. 1 to 6 and PW8 is very clear that A1 hacked the deceased with an axe on the head, A1 beat the deceased with a stick on the head and A3 beat the deceased with a pestle on the head. There is no discrepancy of whatsoever insofar as causing of injuries to the deceased by A1 to A3 is concerned. No doubt, except PW5 all the other witnesses are closely related to the deceased. In case an eyewitness is related or even interested, it becomes the duty of the court to scrutinize his statement with great care and caution. It is material to mention the judgment of the Supreme Court in Anvaruddin and others Vs. Shakoor and others, wherein it is held:

"Ordinarily close relations of the ceased would not allow the real culprits to escape of them. The possibility of their implicating others with the real offenders need to be kept in mind."

Though all the witnesses except PWs.5 and 9 are closely related to the deceased, but at the same time they have no grouse or enmity against the accused so as to implicate the accused falsely leaving the real assailants. Since the incident has taken place near the house of the deceased, their presence at the relevant point of time of the incident is quite natural and convincing. Since their houses are also located near the scene of occurrence, on hearing the cries there is every possibility or scope for these witnesses to go to the scene of occurrence and witness the incident. Therefore, their evidence is convincing and trustworthy. Hence an implicit reliance can be placed upon their evidence. The defence has not succeeded in surfacing any material discrepancy during the course of cross examination of PWs.1 to 9. Their testimony thus being free from any material infirmity carries an intrinsic ring of truth about it. The presence of PWs.1 to 9 at the time of occurrence is very natural. Nothing substantial has been brought out in the cross-examination of the prosecution witnesses 1 to 9 doubt their testimony.

It is only pointed out by the learned counsel for the appellants-accused that no specific overt act is attributed to A3 in so far as causing injuries to the deceased and therefore it is clearly an improvement. No doubt in the FIR no specific overt act is attributed against A3 insofar as the deceased is concerned but at the same time the presence of A3 has been specifically mentioned as one of the accused who came along with the other accused. That may be an improvement insofar as PW1 is concerned but at the same time PWs.2 to 6 and 8 have categorically stated that A3 beat the deceased on the head of the with a pestle. Their evidence is consistent insofar as A3 causing injury with a pestle on the head of the deceased is concerned and the same is corroborated by the medical evidence. Therefore, the said omission cannot be taken as a circumstance so as to doubt the prosecution case.

It is vehemently contended by the learned senior counsel for the appellants-accused that A4 to A11 did not try to cause any injuries to the deceased and as a matter of fact none of the witnesses stated that A4 to A11 caused any injuries to the deceased and in view of the fact that there was no prior enmity between the accused and the deceased, convicting them u/s 302 IPC with the aid of Section 149 IPC cannot be sustainable.

Section 149 IPC creates a specific and distinct offence. The vicarious liability of the members of the unlawful assembly will extend only to (1) the acts done in pursuance of the common object of the unlawful assembly or (2) such offences as the members of the unlawful assembly knew to be likely to be in prosecution of that object.

Learned senior counsel for the appellants-accused placed strong reliance on a decision of the apex court in Parsuram Pandey v. State of Bihar, 2005 ACJ 341 (S.C.): 2005(1) CCC 688 (S.C.): 2004 Cri. L.J. 4978, wherein it is stated:

"By virtue of Section 149 IPC every member of an unlawful assembly at the time of the commission of the offence is guilty of an offence committed by any member of the unlawful assembly. The Section creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of constructive guilt u/s 149 is mere membership of an unlawful assembly. In a case u/s 149 the accused if is a member of the unlawful assembly, the common object of which is to commit a certain crime and if that crime is committed by one or more members of that assembly every person who happened to be a member of that assembly would be liable for that criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed the act or not. To attract Section 149 of the IPC the prosecution must prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly knew that it was likely to be committed. Unless these three elements are satisfied by the prosecution the accused cannot be convicted with the aid of section."

It is pertinent to refer to a decision in Sunil Kumar v. State of Rajasthan, 2005(2) CCC 164 (S.C.): 2006 ACJ 34 (S.C.): 2005(1) ALT (Cri.) 266: 2005(1) SCJ 487: AIR 2005 SCW 589, wherein it is held:

"Common object" is different from a ''common intention'' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ''common object'' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even from sometime thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante.

From the above decision it is clear that once it is established that all the accused shared common object and they were the members of the unlawful assembly, the question of causing any injuries to the deceased by which of the accused does not arise. Whether all the members shared the common object or not is essentially a question of fact which can be ascertained by the evidence adduced by the prosecution. The common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and on behalf of the assembly at or before the scene of occurrence. Unless A4 to A11 shared the common object with the other accused to commit the murder of the deceased, they are not liable to be convicted u/s 302 r/w 149 IPC. The incident took place in the village and it is not unnatural to hold a stick by the villagers. Mere holding of a stick in the commission of offence by itself does not indicate that they shared the common object especially in view of the fact that there were no political, property or personal disputes between the prosecution witnesses and the accused. The attempt is not a pre-planned attack. A1 came to the house of PW7 and called him to consume liquor. AT that time the deceased admonished A1 and sent him away and one hour thereafter the incident has taken place. Except admonishing A1, the deceased did not provoke A1 though he was the master of the accused and all the other accused were working as coolies under the deceased. Except that stray and trivial incident, there was absolutely no reason for all the accused to attack the deceased and the prosecution witnesses. As seen from the evidence of PWs. 4 and 8, they have categorically stated that along with the accused, 20 to 30 persons were present there. The presence of all the accused except A2, A7 and A10 cannot be said to be unnatural or unusual in view of the fact that their houses are also located in the same street in which the deceased was residing. Therefore the presence of A4 to A6, A8, A9 and A11 cannot be said to be enough to conclude that they have shared the common object with the other accused. So also the presence of A7 and A10 also does not lead to irresistible conclusion that they have shared the common object with the other accused because there is no relationship with A1 to A3 except the fact that all the accused were working as coolies under the deceased. Therefore, under those circumstances it is not possible to arrive at a conclusion that A4 to A11 shared the common object in committing the murder of the deceased with the aid of A1 to A3. There were no factions or disputes of whatsoever and furthermore, the accused and the prosecution witnesses belong to the same caste and as a matter of fact PW2 also admitted that he was having good terms with the accused prior to the incident. In such view of the matter it is not possible to draw any inference with regard to sharing of common object by A4 to A11. Without considering these aspects the learned sessions Judge simply convicted the accused u/s 302 IPC with the aid of Section 149 IPC. No reasons of whatsoever have been stated whether A4 to A11 shared the common object of A1 to A3 and what are the inferences to be drawn from their conduct so as to brand them as the members of the unlawful assembly. Therefore, the conviction of all the accused u/s 148 IPC and the conviction and sentence of A4 to A11 under Sec.302 r/w 149 IPC and also 324 r/w 149 IPC are not sustainable. Therefore, they are liable for punishment under the individual overt acts as stated by the prosecution witnesses.

The prosecution further relied upon the recovery of M.Os.5 to 9 at the instance of some of the accused. M.Os.5 to 7 contained human blood stains though the blood group of the stains could not be determined by the Serologist. Therefore, this is yet another circumstance to conclude that M.O.s 5 to 7 were used by the accused 1 to 3 in the commission of offence in causing the death of the deceased.

It is vehemently contended by the learned senior counsel that the origin and the genesis of the occurrence has been shrouded in mystery in view of the fact that the prosecution is not able to explain the injuries sustained by A5, A6 and A10. It is not disputed that in the same transaction A5, A6 and A10 received injuries. DW1 is the doctor who examined A10 and found the following injuries:

Laceration over the right side of the scalp 3"x1/4"x1/4" and

Contusion over the right scalp region 5"x3".

So also, he examined A5 and found one laceration over the left parietal region of scalp 1-1/2"x1/4"x1/4". He also examined A6 and found the following injuries:

Laceration over the left parietal region of scalp 1"x1/4"x1/4".

Contusion over the left forearm 3"x3".

Contusion over the left shoulder 2"x2".

Abrasion over the upper 1/3rd of right forearm 1/2"x1/2".

He issued Exs.D8, D9 and D10 wound certificates. There was no cross-examination by the Public Prosecution. Therefore, from the evidence of DW1 it is established beyond doubt that A5, A6 and A10 received injuries. When the injuries are found on the accused, it is obligatory on the part of the prosecution to explain the injuries so as to satisfy the Court as to the circumstances under which the occurrence originated. Before that, however, two conditions must be satisfied, (1) that the injuries on the person of the accused must be shown to be very serious and not superficial and (2) that the injuries must be shown to have been caused at the time of occurrence. This has been held so in Dilip Saha Vs. State of West Bengal, . In a recent decision the apex Court in Chacko v. State of Kerala, AIR 2004 SCW 1244, held:

"Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor, which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version."

Even the doctor DW1 who examined the injured accused, did not give any opinion as to the serious nature of the injuries. It is also not elicited by the accused that the injuries are very severe and grievous in nature. No doubt some of the accused received injuries on the heads, but there is no indication that they are serious or grievous in nature. It is not specifically suggested to any of the prosecution witnesses that all the injuries on accused were caused by the prosecution witnesses. Under those circumstances the non-explanation of the injuries by the prosecution witnesses does not lead to an irresistible conclusion that the prosecution suppressed the genesis and origin of the incident.

Therefore, from the evidence on record it is clear that A1 to A3 caused injuries on the head of the deceased. There cannot be any dispute that head is a vulnerable part and there was a fracture to the head. Within few minutes after the receipt of injuries the deceased died. Therefore, the intention of the accused is to cause the death of the deceased. Hence the conviction and sentence recorded by the trial court u/s 302 IPC against A1 to A3 are sustainable. In view of the fact that the prosecution failed to establish the common object of A4 to A11 in causing the death of the deceased, they cannot be convicted u/s 302 r/w 149. So also the conviction and sentence recorded by the trial court u/s 148 IPC is unsustainable. So also, the conviction and sentence recorded against A1 to A11 u/s 324 r/w 149 IPC is unsustainable, but, however, A1 to A11 are liable for punishment u/s 324 in view of the individual overt acts attributed against them by the prosecution witnesses.

Accordingly the appeal is partly allowed confirming the conviction and sentence against A1 to A3 under Sec.302 IPC. The conviction and sentence against A1 to A11 u/s 148 IPC and the conviction and sentence against A4 to A11 u/s 302 r/w 149 IPC and the conviction and sentence against A1 to A11 u/s 302 r/w 149 IPC are set aside. A1 to A11 are found guilty under Sec.324 IPC and they are sentenced to undergo rigorous imprisonment for three years. All the sentences are directed to run concurrently.