Rajiv @ Raju v. State

$- * IN THE HIGH COURT OF DELHI AT NEW DELHI DATE OF DECISION i Z4th MAY, 2ol3 cRL. A. N o.487 / 20L 2, CRL. M (B AIL ) 524 2OL2 & CRL .M. A.52n/ 2012 RAIIV ALIAS RAIU "' APPellant Through: Ms. Kamna Vohra, Adv. STATE ..... Respondent Through: Ms.Ritu Gauba, APP I coRAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE V.K. SHALI GITA MITTAL.I For iudgment, see crl.A. No.897/2010 decided on2fithMay, 2013. ?r V\,\A,rrz-A-. ' '(v.K.SHALI) IUDGE MAy 24rh,20Lg aa A MITTAL) t ,. ,$.= , i I IN THE HIGH COURT OF DELHI AT NEW DELHI {. i DATE oF DEcrsroNt/A'MAY' 201'3 I+ CRL'A' No'89/20L0 SANJEEVALIASSONU&BIRENDER@BOYA..'Appellants Through: Ms. Kamna Vohra, Adv' Versus STATE OF NCT OF DELHI ..." RCSPPNdENT Through: Ms' Ritu Gauba, APP' F CRL.A. No'900/2010 YAD RAM & BABLOO ... APPCIIANIS Through: Ms. Kamna Vohra, Ad.v' Versus STATE NCT OF DELHI ..... RCSPONdCNT Through: Ms. Ritu Gauba, APP' +CRL.A.No.487/201.2,CRL.M(BAIL)824201;28T, CRL.M.A.5241'/20L2 RAIIV ALIAS RAJU "' Appellant - rl'l Through: Ms. Kamna Vohra, Adv' , Versus STATE "" ResPondent Through: Ms.Ritu Gauba, APP CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE V.K. SHALI Crl.A, Nos.897/2070, 900/2010 & 487/2012 I cruA vuttet, J , Crl.A.897 '1L0 & 900' r10

¶1These ihr"u appeals have been filed by the appellants assailing the judgment dated 28u. May ,2010arising out of the same incident whereby Yad Ram and" Babloo (Appellants in Cril'App 'g00) /2010) have been found guilty of commission of offences punishable under section 302/34 of the Indian penal Code while they have been acquitted of the charge of -commission.of offences punishable under section 307/34 with which also they had been charged. as well as the order of sentence dated 31.'t,of (lvIay,zl:tlwhereby they have been sentenced to suffer imprisonment for life as well as payment of fine of Rs.5000/- each and in default oft payment of fine, to suffer simple imprisonment for a period of six months each..

2.Sanjeev@sonuandBirend'er@Boya(appellantin 'i ' )n1n\ olen accail the iudemer f May, 2010 drt.epp.BgT/201l0) also assail the judgment dated 28ft o whereby they have been found guilty of commission of offencep punishable und.er section g07/34of the IndianPenal Code as well as the order of sentence dated 31't of May, 20\0 whereby they have been . sentenced to undergo rigorous imprisonment for a period of four yeals , each for commission of the offence punishable under section 307 /34IPC crl.A. Nos.ggT/2070, g0O/2010 & 487/2012 as well as payment of fine of Rs:2000/- each; in default of.which they are required to undergo simple imprisonment for a period of six months each.

¶3Rajiv @ Raju appellant in Crl.Appeal No.487/ 2012 was alsb arraigned for trial along with the other co-accused. FIe was admitted on bail on 24m May ,2005. However, he absconded thereafter when the trial was at the stage of recording his statement under Section 313 of the C1.P.C. He was subsequently declared as a proclaimed offender by the trial cburt by an order dated 22"dDecember, 2008'

¶4The trial was completed against accused Yad Ram, Babloo, Sanjeev @ Sonu, Birender @ Boya and Manju wife of Yad Ram. A-fter considering the evidence and hearing the contentions of the parties, the trial court by order dated 28tr. May , 2010 convicted Yad Ram and Babloo under ,:.Section g02./g4 IPC and acquitted them for commissicin of offences und.er Section 907 / 94 IPC. Virender @ Boya and Sanjeev @ Sonu though convicted under Section 307 /34IPC stand acquitted for offences under Section 302/34IPC. Co-accused Manju (who is the wife of Yad Ram and sister of the other appellants) stood acquitted for all the ' charges for which she was tried. Crt.A. Nos.897/2070, 900/2010 & 487/2012

¶5During tire course of hearing of these appeals, the factum of abscondance of Rajiv @ Raju was brought to the notice of this Court' An order was consequently passed by this court on 12ft lan.uary, 2012' directing sh. Hari chand (who had stood' surety for Rajiv @ Raju) and was present in the court was directed to ascertain the whereabouts of Rajiv @ Raju. The surety was also directed to produce Rajiv @ Raju' Pursuant to the ord.er passed on 12ft January, ,2013, Rajiv @ Raju was rearrested on 25ft Febrvary,20Ig. He was thereafter produced before this court and by an order dated 28ft Febraarlr 2012 directed to be produced before the concerned trial court on 2"d March, 20\2'

¶6After production before the trial court, Rajiv @ Raju'stood trial from the stage of recording of his statement under Section 313 of the CI.P.C. at which stage he had absconded. The charge was also amended .,under section g02/g4 and,307/34 IPC by the trial court on 3'd March' 20\2. The trial court considered the evidence on lecord and heard the arguments of the .learned. counsel appearin g for Rajiv @ Raju' By t . judgment date d, z7nMarch, 2012, the trial court held Rajiv @ Raju not guilty for offences under Section g02/94 and' 307 /34 IPC and acquitted him for the same. Flowever, the trial Crl.A. Nos.8g7/2070, 900/2070 & 487/2072 court held him guiltY for Poge 4 of 66 @ commission of an offence under Section 324/ 34 IPC by the same judgment and Rajiv @ Raju was awarded a sentence for rigorous imprisonment of two years and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of one month by order of sentence dated 29ft Mar ch, 2012. Rajiv @ Raju assailed the judgment dated 27hMarch,,2012 and order of sentence dated 29ft March,2012by way of Crl.A.No.4B7l 2012. T. Inasmuch as the appeals lay a challenge to the judgments which relate to the same incident on the night of 25ft February,2004 and have been rendered. on common evidence, the three appeals are taken together for the purPoses'of consideration.

¶8The proceedings in the case cornmenced upon a wireless message received by the police station Kotla Mubarakpur, Delhi at 11.39 p.m. on ithe 250, of February,2004which was recorded as DD No.21A (Exhibit pW1"6/A) to the effect that there had been a fight in House No.737, Bhagwan Gali, Gurudwara Road, Kotla Mubarakpur. g. The details of the incident stand narrated in a statement (Exhibit PWI/A) athibuted to Rizwan Kharg son of the deceased Mohd Rashid Ahmed Khan recorded by SI Fateh Singh (PW 16). Briefly summed up, Crl.A. Nos.897/2070, 900/2010 & 487/2012 Poge 5 of 66 uP Rizwan Khan had disclosed that his deceased father Mohd Rashid Ahmed Khu+ was having an illicit relationship with Manju, wife of the appellant-Yad Ram - a tenant on the second floor of the building wherein the deceased was residing with his family on the ground floor. Kamrunisa (wife of the deceased) had commiserated with Yad Ram (Manju's husband) as well as her four brothers Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Birender @ Boya about this illicit relationship in this ' regard and asked them to reason with Manju about the same. For this reason, Manju's relatives started nursing a vengeance against the family of Rizwan Khan and were frequently abusing and threatening them. On ' the 25ft of February ,2004at about 11.15 p.ffi., when the deceased and his family were at home, Yad Ram came to the courtyard of the building with an iron rod in his hand and started abusing Kamrunisa and her r,idaughter and levelled unfounded allegations against them. Rizwan, along with his elder brother Imran, younger brother ljaz, sister Kiran and parents went out into the courtyard. Manju also reached there and supported her husband in levelling false allegations against Rizwan s sister. A11 of them tried to reason with Yadram & Manju. At this, Manju called out to her four brothers (Babloo; Sanjeev@Sonu; Birender@Boya Crl.A. Nos.897/2070, 900/20L0 & 487/2012 and Rajiv@Raju) who lived on the first floor of the opposite house and exhorted. them that this was a good occasion to finish these people. Manju grabbed iris (Rizwan s) sister-Kiran's hair and started beating her. Yad Ram beat the deceased Mohd.. Rashid Ahmed Khan giving fist blows, and also beat him with his leg as well as the iron rod. In the meantime, Babloo, Rajiv @ Raju, Sanjeev @ Sonu and Birender @ Boya (four brothers of Manju), came down to the courtyard wielding .and waving knives. With one objec! these persons stated that they would not leave them alive. Yad Ram held Mohd Rashid Ahmed Khan and Babloo attacked him on the neck with a knife. Sonu attacked Rizwan Khan from the front while Rajiv @ Raju and Birender @ Boya atta'cked Rizwan Khan's younger brother Ijaz with their knives. Manju threw his sister Kiran by her hair. Their father starting bleeding from the injury on -:his neck inflicted by Babloo's knife and fell near the cycles in the courtyard. At that time, a lot of people fuom the neighbourhood gathered. On seeing the crowd and taking advantage of the sAme, the assailants ran away from the spot. Rizwan Khan also suffered injury on his hand because of the knife attack and his father on the neck and brother Ijaz who was attacked with knives, suffered tttj*y on his back Crl.A. Nos.8g7/2070, gO0/2010 & 487/2012 and on the back side of his right thigh. Rizwan Khan and his younger brother removed their father Mohd Rashed Ahmed Khan in a three wheeler vehicle to the All India Institute of Medical Sciencies. He was declared brought dead by the doctor in the hospital. frzffC no.L928 was recorded at11,.42 p.m. regarding the same (Exhibit pw11/A).

¶10sI Fateh singh, Pw-16 was posted on emergency duty on the intervening night of 25.fr and. 26ft February, 2004 at pS Kotla Mubarakpur. on receipt of DD-21,A (Exhibit pw-16/ A), SI Fateh Singh accomPanied by Constables Satya Narain and Virender proceeded to the Qpot in Flouse No.737 Bhagwan Gali, Gurudwara Road, Kotla Mubarakpur where they were informed that the injured had been shifted to the hospital. PW-9-CI. Virender was left at the spot. PW 16-5I Fateh singh accompanied by Ct. satya Narayan (pw3), prbceeded to the +Al1 India Institute of Medical Sciences ('AIIMS'). He collected the MLC of Mohd Rashid Khan and found Mohd Rizwan and Mohd Ijaz also injqred at the hospital whose medical had also been conducted. 1'!,: PW-16 moved an application seeking the doctor's opinion with regard to the fitness of the injured brothers. Upon the dqctor declaring them fit for statement, he recorded the statement of Rizwan vide memo crl.A. Nos.B97/2070, 900/201-0 & 487/20L2 Poge 8 of 66 PW-1"/ Agave his endorsement (Exhibit PW-1,6/B) thereon; prepared rukka which was handed over to Constable Satya Narayan registration of the FIR and intimation to the crime branch. Based on this rukka, FIR No.86/2004 (Exhibit Pw2/ A) was registered on 26ft February, 2004 under Sections 302/307/34 of. tlne Indian Penal Code and Secti on 27 of the Arms Act at the police station Kotla Mubarakpur.

¶12PW-16 SI Fateh Singh returned to the spot, where the crime team was already present. At the spot the police tifted blood from four ''d.ifferent places as well as from cycles which were standing near a tree at the spo! vide memo Exhibit PWg / A, a blood stained piece of earth; vide memo Exhibit PW7/B, one blood stained iron rod from the roof .top of the house; vide memo Exhibit PW9 /C, a blood stained curtain; vide c memo Exhibit PW7/D, clothes of Mohd Rizwan; vide memo Ex.PYY9/8, blood stained t-shirf of ]aved; vide memo Exhibit PW9/F; blood stained ,clothes of.Tjazand vide memo Exhibit PMg/G,clothes of Kamrunisha and Kehkhasa. Crl.A. Nos.897/2070, 900/2010 & 487/2012 the for 1p, A post mortem was conducted on the body of deceased Md. Rashid Khan on 26u February , 2004 by Dr.Parthasarthi Pramanik who gave a detailed report dated 26ft Febradrlr 2004. 1,4. At this stage during the investigation, information was received that the accused Yadram was present in the area and was arrested' on 26u'Febr:uarrfr 2004. A disclosure statement given by him was recorded as (exhibit PW-16/C) and his personal search was conducted (Ex.PW g/H).Yadramwas found having injuries over his head and was sent to the hospital for his medical examination in custody with Constable - Ba1bir. The other accused persons could not be traced.

¶15During the course of the investigation, PW-s SI Mahesh Kumar visited the place of occullence, which was the open chowk in the Bhagwan Gali, Bhola Nagar, K.M. Pur on 5m March, 2004 and on the . pointing out of PW-15 Imran, took rough notes and measurements based whereon he prepared the scaled site plan exhibit PW-$/A. The site plan shows the position of the place where the assailants attacked the deceased, Mohd. Rashid Khan; injured Rizwan Khan and his brother as well as the place where blood was found on the site; the position of the Crt.A. Nos.897/2070, 900/20L0 & 487/2012 cycles which had blood stains as well as the place where the blood stained iron rod was recovered.

¶16On completion of the investigation, the police filed a chargesheet on 2L't May, 2004 against Yadram (who had been arrested) while Surinder @ Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Birender @ Boya (accused) *d Manju were shown as absconding. The challan stated that the proceedings under Section S2/8g had been initiated against absconders. A perusal of the impugned judgment of the trial court would show that bn 2gtn ]une , 2004, Surinder @ Babloo and Sanjeev @ Sonu were present in Court. They wele arrested and their personal search was effected vide memo exhibit PW-18/A and exhibit PW-18/8.

¶17Manju (wife of Yadram); Birender @ Boya & Rajiv @ Raju also surrendered on 24th ]une ,2004and were taken into custody. .1S. The learned trial judge framed the following charges on 28ft september, 2004 against appellant Yad Ram for commission of the offence under Section 302/307 /34 of the Indian Penal Code:- "CHARGE That on25/2/04 at about 11.15 pm at courtyard of House No.73Z Bhagwan Gali, Bhola Nagar, Kotla Mubarak Pur, New Delhi, you alongwith your co-accused Babloo, Rajiv, Sanjiv, Virender and Manju (a11Pos) in furtherance of Crt.A. Nos.897/20t0, gOO/20t0 & 487/2012 Page 77 of 6.6 youl common intention and object committed murder of Md. Rashid Khan and thereby committed an offence punishable u/s 302 IPC r/w Section 34 IPC and within my to*'" ;ondly, on the abovesaid date, time and place you alongwith your co-accused in furtherance of common intention of you all voluntarily caused injuries with knife. on the person of Md. Azad with such intention and knowledge under such circumstances that if the death of said Md . Azad. is caused you all will be guilty of murder and thereby committed an offence punishable u/s 307 IPC r/w Section 34IPC."

¶19The charges were amended by an order dated 18tt'May,2010 when the name of the co-accused Rajiv @ Raju was added'

¶20Rajiv @ Raju appeared. in the matter when the prosecution evidence was recorded. But on 20ft of December, 2008, at the stage when his statement under Section 313 Cr.P.C. was to be recorded, he stopped appearing and was declared a proclaimed offender. u2\. Apart from the account given by these witnesses, the prosecution has placed reliance on the medical legal cases of the deceased as well as PW1-Rizwan Khan; PW4-Mohd,Iiaz and the post mortem report of the deceased ZZ. With regard to the same incident, the prosecution has also proved the MLC of PW 1 Rizwan @ Kushu (Exhibit PW7 / A recorded at J-a.m. Crt.A. Nos.BgT/2070, 900/2010 & 487/2012 Poge 72 of 66 @ on the 26h of February,2004 by Dr. Parvez who has noted a lacerated wound on the right ring finger and index finger and opined that the injuries were simple in nature and inflicted with a blunt object. The prosecution has also proved the MLC of Aizaj/Tiaz @ Bholu recorded at

12.45 a.m. (Exhibit PW7 /B) wherein the doctor has noted a punctured sharp wound on the back of the right thigh and on his back and opined that the injuries were simple in nature and inflicted with a sharp weapon. The prosecution has examined Dr.'Patvez as PW 7 to prove the aJorenoticed MLCs.

¶23The prosecution has also examined Dr. Tarun Jain as PW6 who was the radioLogist at the A11 Lrdia Institute of Medical Sciences who examined the X-ray of Mohd Rizwan Khan @ Kushu and gave a report (Exhibit PW6/ A) stating that there were no fractures on his person. ,.24. The report of the post-mortem conducted on the body of deceased Rashid Khan was filed on record. It is noteworthy that this post mortem report was filed by the prosecution but not proved in evidence by the prosecution. The prosecution evidence was closed on 3l't.Janu ary, 2008 and the matter was posted fot recording of the statembnt of 'the accused/defence evidence on22"d February,2008. It appears that at this crl.A. Nos.897/2070, 900/2010 & 487/2012 Poge 73 of 56 stage, the prosecution realised. that the post-mortem report had not been proved on record as is evident from the following proceedings of the trial court "22.02.09 Present : Addl.PP for the state. 'Accused Manju, Virender and Rajia present on bail with Ms. Manjeet Aryo Other accused in lC with counsels Ms, Manjet Arya Ld AddI.PP states that post-mortem report could not be proaed due to inadaertence. Ld counsel for the accused persons Ms Manjeet Aryo has no objection if the post-mortem repport is exhibited without formal proof. 'In aiew of this post-mortem report of the deceased Rashid Altmed is , exhibited as PW PX2 Statement of the accused persons under dictation. Not completed. To come up for statement of accused/defence if any for 11.J.08, . sd/- ASIND" The post mortem report was thus marked Exhibit pXZ.

¶25The relevant extract of Exhibit PX reads as follows :- '1-. A stab wound of size 3.scm x B cm, horizontatty plaiced is present in the middle third of the lateral neck in the Ieft side. lt is 1,60 cm aTt)ay fro* the Ieft heel 7 cm away fro* Ieft mastoid prominence, 4 cm from the midline and 23 cm fro* the top of the head. A traclc is established of length of 10 cm in doznnwnrd and Iateral direction piercing left sternocleido mastoid muscle and left jugular aein and puncturing Ieft pleural caaity (upper part). The Ieft pleural caaity is flled zuithblood and the Ieft lung is collapsed. , The upper and medical margins of the aboue mintionid stab r.uound ts contused. crl.A. Nos.897/2070, 900/20L0 & 487/2012

¶2An abrasion of size 2 cm x 1" cm in lateral side of left knee 30 cmfromheel (Ieft side).

¶3An abrasion of size 3 cm x 1. cm in tlrc outer aspect of middle third of the abdomen. It is 24 cm from Ieft iliac uest 27 cm fro* shoulder top and 10 cm from the midline. Opinion : The cause of death in this case is haemorrlogic shock due to injury no.L causedby sharp edged weapon which is sufficient to cause death in ordinsry course of nature. Injury nos. 2 and 3 are caused by blunt force. AII injuries are ante mortem in nature."

¶26The prosecution produced 18 wibresses out of. 22 witnesses cited by it. The case of the prosecution hinges primarily on the eye-wifiress testimony of six wifiresses, which includes three sons of the deceased being, PW-1 Rizwan Khan; PW-4 Izaj Mohd. Khan; PW-15 Imran; his daughter PW-12 Kiran and widow PW-14 Smt Kamronissa as well as one stranger PW-17 Gaurav Gupta, who was residing in the area, a chance wibress. The statements of the appellants in Crl.Appeal Nos.897 ex 900/20L0 were recorded under the provisions of Section 3L3 of the Code of Criminal Procedure in which they asserted that they have been falsely implicated in the case. These appellants chose to set up a defence Q and examined three witnesses, DW-1 Dinesh Kumar, DW-2 Smt. Suman and DW-3 Gulab in their defence.

¶27After a careful consideration of the matter, the learned Trial Judge has passed the , judgment dated 2Bu' May , 2010 holding Yadram and Crl.A. Nos.897/2070, 900/2010 & 457/2012 eage ts 6f es Babloo guilty of the offences punishable under Section 302/34 of the Indian Penal Code (IPC) and convicted them of the same. Yadram and . Babloo were acquitted for commission of offences punishable under Section g07 / g4 IPC giving them the benefit of doubt. By the same judgment, Sarrjeev @ Sonu and Birender @ Boya have been found guilty for commission of offences punishable under Section 307 / g4 IPC with which they were charged, while acquitting them of the charge for t' commission of offences punishable under Section 302/}4IPC. The court acquitted M*jo of the charges of commission of the offence punishable l, Vlrnder Section 302/307/34IPC for which she was tried. The State has not challenged her acquittal or the acquittal of SaRieev@Sonu and Birender@Boya for commission of offences punishable under Section 302/34 rPC.

¶28The appellants Yad Ram, Babloo, Birender @ Boya and Sanjeev @ Sonu were heard on the point of sentence and by an order dated 3Lrt Yur, 2010, the trial judge imposed the afore-noticed sentences upon them. Confiction of Rajiv @ Raju Crl.A. Nos.897/2Q70, 900/2010 & 487/2012

¶29As noted above, by u separate judgment dated 27tt March, 2012, Rajiv @ Raju has been held guitty for commission of an offence under .' Section 324/34 IPC and by an order of sentence of the same date, awarded rigorous imprisonment of two years.and find of Rs.L,0 00/ -. !h"lt""g" t" t"rtt* statements 30' It is urged by Ms. Kamna Vohra, learned counsel for the. appellants that the prosecution witnesses have contradicted. themselves in atl material particulars. 37' Learned counsel for the appellants has pointed out that the oral ,- testimony of PW1 Mohd Rizwan contradicts the rukka Exhibit pW1,/ A as to the place where it was recorded is concerned. In his deposition in court, he has stated that the police recorded his statement at the spot that is the situs of the incident. However Exhibitpwl/ Ahas recorded that the s.tatement was recorded in the hospital. In his further cross ' examination'he has stated that the statement was recorded outside the .ospital building 32' We are unable to find any major contradiction between the statement given by PW 1 and the statement attributed to him as Exhibit PW7/ A' Human memory with regard to an incident, especially one Crl.A. Nos.897/20t0,900/2010 & 487/2012 pase t7 of 66 which must have been painful to recollect, suffers from such blurring. Flowever, there is no material contrad.iction between the statement Exhibit PW1./ Amade by PW1 to the police and his depbsition in court.

¶33The challenge by Ms.Kamna Vohra, learned counsel for the appellants rests primarily on a close reading and examination of the testimony of the six eye-witnesses. It was urged by learned counsel for the appellants that the deposition of the six eye-wibresses instant case suffered from material contradictions and that they were not credible. It is urged that PW-17 Gaurav Gupta is a stock wifiress and his 'very presence at the spot was doubfful, and therefore his deposition with regard to the occurrence ought not to be relied. Learned counsel for the appellants urges that the testimony of eye-wibresses, PW-L, 4,12, L4 and L5 would be motivated on account of their being close relatives of the deceased.. It is urged that their testimony cannot be relied upon without corroboration in material particulars for this reason.

¶94So far as the sequence of events is concerned, Exhibit PW1/A which records the statement of Mohd Rizwan Khan as to the efforts to reason with Yad Ram, stands corroborated by the statement of PW12 Kiran; PW 14 Smt. Kamrunisha, widow of the deceased. PW15,Imran, crl.A. Nos.897/2070, 900/2010 & 487/2012 Poge 78 of 66 son of deceased also refers to Mohd Rashid Khan trying to calm down accused Yad Ram. PW 12, 1-.4 and 15 all refer to Yad Ram being under the influence of liquor and armed with.a rod on the fateful dAy. PW 12, L4 and L5 referred to the exhortation by Manju while PW1 Mohd Rizwan ' has made a categorical statement that it was Yad Ram who had called out his brothers-in-laws with the exhortation that it was a good occasion to finish the other side.

¶35The learned trial judge has disbelieved the case of the prosecution to the extent of the atkibution of the role to Manju of calling her brothers Q"O exhorting them to kill. It requires to be borne in mind that the occurrence took place in a crowded locatity in the night time. While there were seven or more people from the family of the deceased. and six accused Persons all present in the confined space. In the melee which would have ensued, it is reasonably possible to be mistaken about the exhortation. Ffowever, in the given facts, nothing much would turn on the question of who gave the exhortation.

¶36Ms. Kamna Vohra has also emphasised that the post mortem report of deceased Mohd Rashid Khan contradicts the statement of PW1 to the effect that Yad Ram had given an iron rod blow on the head of the crl.A. Nos.897/2070, 900/201.0 & 487/2012 @ deceased. It is urged that no such injury is reported in the post mortem report.

¶37The prosecution has claimed to have effected a seizure (Exhibit PW}/B) of an ironrod upon the disclosure made by accused Yad Ram. As per PW 9-Ct. Virender, the iron rod was lying inside one rooln occupied by accused Yad Bu*. Be that as it ma!, apart from its recovery, the iron rod has not been connected by the prosecution to the injuries suffered 'by the deceased person. The charge against the appellants is that in furtherance of their conunon intention and object, I - they committed the murder of Mohd Rashid Khan by causing knife injuries. Even otherwise, there is no reference to an iron rod blow by Yad Ram to the deceased. If it had been, it is not implausible that the iron rod blow was not sufficient to cause physical injury to the deceased persoru or for it to have lefta mark on his person.

¶38The appellants have vehement$ challenged the presence of PW4 - Ijaz Khan. We find that it is not disputed thatljaz Khan was a son of the deceased Mohd Rashid Khan. His presence in his residence in the night or the scene of occurrence, given the hour of the night when the incident took place is therefore natural. PW-1 Ijaz was also injured in the Crl.A. Nos.897/20L0, 900/2010 & 487/201.2 @ incident. His MLC and injuries stand proved in the testimony of the doctor. Ffowever, even if the contention of learned counsel for the appellants to the effect that his presence at the spot is doubtful was to be accepted, the appellants have not been able to challenge the testimony of PW L, 12 and 14 who were eye witnesses.

¶39In this regard, the trial judge has carefully noticed that the testimonies of the prosecution witnesses with regard to the violence against them is corroborated by the injuries not only on the person of the deceased but also on PW-1 Rizwan Khary PW-4 Ijaz Mohd. Khan, as Qh"r,tioned in their MLCs exhibit PW-7 / A and,7 /8.

¶40It is noteworthy that with regard to the occurrence of the intervening night of 25d. and 26h February , 200.4, the court commenced recordin g of the deposition of PW-1 Rizwan Khan 'on 2.d May, 2005. ^ '' The recording of his evidence did not end that duy. As per the record, on LLd' August, 2005 a fifty six page depositiot-, 9f PW 1 was recorded. The testimony of PW-4 Ijaz Mohd. Khan was recorded gn ].zk I , September,2006 *'la *"r,t on till 18th JaIy,2007, that is for almost ten months. The statement of PW-12 Kirary daughter of the deceased was recorded on 21.'t Jaly, 2006; PW-1,ASmt. Kamrunisha was recorded on CrLA. Nos.897/2070, 900/2010 & 457/2012

12.9.2006; PW-15 Imran was lecorded on L3ft Septembet, 2006, more thapr two years seven months after the incident.

41.. The ability of the human mind to recollect events which have occurred even a few days prior varies from perso:r to person. Passage of time has a definite and sombre effect on memories, especiallY those The date when the occurrence recollection whereof would be painful. took place is separated from the making of the deposition in the court of law by, not a few d.ays or months, but by over a year. Human mind has a tendency to block out the unpleasant or painful events. It is also to be Qo,.a that the instant case is not concerned with one or two eye-witresses but involves the testimony of six eye-wifiresses to the occurrence, two of whom also'received injuries on their Person in the occurrence as is supported by the evidence of the doctor at AIIMS and .- .their MLCs. Their testimony relates not only to injuries suffbred by 'them but involves deposing father. about the traumatic and fatal*jtry to their

¶42, i\4s.Kamna Vohra, learned counsel for the carefully through the entire deposition Inconsistencies and contradictions pointed out by learned counsel for Crl.A. Nos.897/2070, 900/2010 & 487/2012 appellants has taken us of the eye-wibresses. the appellant in the testimonies of the eye witnesses are natural and would happen if different pelsons ale asked to describe the same incident after passage of irny length of time. The important aspect of the matter is that all the eye witresses were categorical on Yad Ram holdin$ the deceased while Babloo stabbed him. The injured persons also categorically named their assailants. 4g. It is trite that contradictions in matters of detail does not impact the truthfulness of the witnesses. In the instant case, in our view, apart from minor matters of detail, Ms.Kamna Vohra, learned counsel for the Q pelants could not point out any contradictions in material particulars. The evidence of the witresses stand corroborated in material particulars and it is not possible to hold that contradictions go to the very basis of the prosecution case in the instant case' M. On the issue of contradictions in the deposition of witnesses, reference can usefully be made to the decision of the Supreme Court in the AIR Lgg6 SC Luxman iumar vs. State. The court has observed as follows:- "43. xxx It is common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at crl.A, Nos.B97/2070, 900/2010 & 487/2072 variance to a considerable extent. Ordinarily, if-several Personsgivethesameaccountofaneven!evenwith referencecominordetails,theevidenceisbrandedas parrotlikeand.isconsideredtobetheoutcomeof tutoring.Havingreadtheevidenceofthesewitnesses withgreatcare|weareoftheviewthatthesamehasthe touch of intrinsic truth and the variations ale within , reasonable limits and the variations instead of providing the grgund for rejection, add to the quality of being near to hlft." Ithasbeenheldthatidenticaltestimonieswithoutanykindof contradictions may render them suspect sometimes'

¶45In the judgment of the supreme Court reported at AIR 1973 SC 262 Shiaaji Sahabrao Bobade I Ant. Vs. State of Maharashtta' fustice V'R' Krishha lyrrmade the following observations on evaluation of evidence of a witness which may not be found to be completely credible:- ,,Wemustobservethatevenifawibressisnot reliable, he need not be false and even if the Police have trumped up one witress or two or has embroidered the siory to give a credible look to their case that cannot deflat justice if there is clear and unimpeachable evidence making out the g-uilt of the accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'maybe'and'mustbe'islonganddividesvague coniectures from sure conclusions'" Crt.A. Nos.897/2070, 900/2010 & 487/2012

¶46These very observations apply to the present case as well, though no improvements in deposition have been pointed out to us. We hold that the defence has not been able to shake the testimony of these wifiresses in their cross-examination and that the testimonies stand corroborated in all material particulars.

¶47Learned counsel for the appellant has also vehement$ assailed the testimony of the witresses . on the ground that they are all family members of deceased Mohd Rashid Khan. It is urged. that for this reason, their testimony needs to be closely scrutinised and in fact, given Q." nature of contradictions, d.eserves to be discarded.

¶48So far as some of the eye-witnesses being close relatives of the deceased person is concerned, there is no absolute proposition that \ related wifiresses must be disbelieved.

¶49Ms. Ritu Gauba, learned APP has drawn our attention to the pronouncement of the Supreme Court in (20L0) 3 SCC (Cri) 211" Balaraie ^ alias Trimbak as. Staie of Maharashtra and (2009) 3 SCC (Cti) 1254 o Hqri as State of Maharashtra. In paras 29 to 3l-, the court dealt with a similar objection taken by the appellants against the prosecution. In this case, the court found that the evidence of the PWs 1 and 2 - who were Crl.A. Nos.B97/2070, 900/201"0 & 487/2012 @ sons of the deceased and eye-wibresses to the incident as that of PW B (wife of PW 1) was consistenf categorical and unfolded the prosecution version. Their presence at the place of occurrence/ their house, was natural. After exercising due considering the fact that they were related wifiresses their evidence was found. acceptable.

¶50On the issue of witnesses who are related,,reference may ,rrufolly be made to the judicial pronouncement authored by Vivian Bose, J reported at AIR L953 SC 364 Datip Singh as. State of Punjab (at para 26 which was within care and caution, * O, 366) wherein the court had observed as follows :- '26. ...Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty,but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. Ffowever, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Crl.A. Nos.897/2070, 900/2010 & 487/20j"2 @ This pronouncement was reiterated n (1"974) 3 SCC 698 : 1-974 SCC

(Cri) 222 GuIi Chand us. Stqte of Raiasthan.

¶51The Constitution Bench pronouncement of the Supreme Court AIR 1965 SC'202 Masalti vs. State of U.P. aPproved the decision Dalip Singh (supra) observing as follows :- "'1,4. ...But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enougtU where tactions prevail in villages and murders are committed as a result of enmify between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole \ gror:nd that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial . approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as coffect." _ ..52. So far as an incident which has occurred inside a dwelling house is concerned, in (1999) 3 SCC 507 : 1999 SCC (Cri) 436 State'of Rajasthan as. Teja Ram, Thomas, J speaking for the Bench observed that " ouer insistence on witnesses haaing no relation with the aictim will result in the criminal justice system going al,,rry" . In para 20 at Page 5L3, the court observed that " in such an incident , the inost natural witnesses would be the Crl.A. Nos.897/2070, 900/2010 & 487/2012 Poge 27 of 66 in in inmates of,the house and in such a situation "it is unpragmatic to ignore such natural witnesses and insist on outsiders uho rnould not haae er)en seen anything,'. The learned ]udge further clarifiedi "!he prosecution can be expgsL4 to examine only those who haae witnessed the eaents and not those who haue not seen it though the neighborhood may be replete with other residents AIso."

¶53Datip Sing! (supra) was extracted agaLn in the judgment reported at (2007) 1SCC 699 : (2007) 1-SCC (Cri) 425 Salim Sahab vs State of M.P. and in Q008) L5 SCC 65 : AIR 2009 sc 157 Bur Singh as state of Puniab Quru 4. It needs no elaboration therefore, that with regard to an occurrence inside a dwelling house, relatives may be the only witresses.

¶54So'far as the contention that the relatives in the present case would be partisan and biased, because of their antagonism against Manju and her doings, we find that in (201.0) 3 SCC (Cri) 21L Battaie alias Trimbalc. as. State of Maharashtra (supra), on a similar objection the court in para 30 has stated as follows :- 'g0. ..........it would not be ProPer to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidenc'e has to be weighed pragmatically. The Court would be required to analyse the Crl.A. Nos.897/20L0, 900/20L0 & 487/20L2 Poge 28 of 56 . evidence of related wifiresses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the wihresses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence."

¶55This aspect was also considered by the Supreme Court in the judgment reported at (2009) 3 SCC (Cri) 1254 Hari as State "f Maharashtra. The court held that relationship by itself cannot be a ^ ground to discard their evidence. In this case, the evidence of the eye witnesses who were sons and wife of the deceased was found consistent. On the aspect of eye witresses who was alleged to be interested and inimically disposed towards accused. The relevant portion of the judgment is reproduced hereunder:- '24. On the question of appreciating the evidence of wibresses, who are related, this court in Dalip Singh as. State of Punjab, AIR 1953 SC 364 spoke very eloquent$ through Vivian Bose, J. In that case the learned Judge clearly laid down the law relating to appreciation of evidence by relations with such lucidity that it deserves to be quoted:- "26. ... Ordinarily a close relation would be the last to screen the reai culprit and ialsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmiff, that there is a tendency to drag in an innocent person against whom a wifiress has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a crl.A. Nos.897/2070, 900/2010 & 487/2012 the foundation is often a sure guarantee of truth. Ffowever, we are not attempting any sweeping generalisation. Each case must be judged on its own iacts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general' iule. Each case must be limited to and be governed by its own facts." The principle laid down in the aforesaid passage has been subsequently reiterated by this Court rn Gulli Chand as. State -of Rajasthan, (1974) 3 SCC 698. Beg, I', as -His Lordship then was, quoted the said passage in para 11 of the said report.

¶25The said. principle was also followed by u Constitution Bench of this Cburt iiMasalti as. State qf U.P., AIRL965 SC

¶202The Constitution Bench speaking though Gajendragadkar, C.J., approved the decision in Dalip Singh (Supra) and held as under : "'L4. ... But it would, w€ think, be unreasonable to contend that evidence given by witresses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such . factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such i evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." Crt. A. N os.897/20 70, 900/20 10 & 487 /20 12 Poge 30 of 66

¶56The record of the case also shows that the testimoly of the only eye wituress to the incident who is not related to the injured stands corroborated by the statement of PW-1 Rizwan Khan (exhibit PW-t/ A), which was recorded by the police resulting in the registration of the FIR. The learned Tlial Judge also found that there was no material contradiction or deviation in his testimony on oath in court from the contents of the exhibit pw-r/ A. Learned counsel for the appellants was unable to point out any contradiction in his statements even before us' The trial court has also found. that all the witresses were honest and Qrotflfol and their testimonies stand corroborated not only by, the contents of exhibit (pw-1 / lr) batby the unshaken deposition of Pw-17' Gaurav Gupta who was also residing in the area' ST. In the instant case, of the related eye witnesses have suffered injuries as well. The principles laid. d.own in these judicial precedents squarely aPply to the present case. Therefore, the objection to the testimony of the sons, widow and daughter of the deceased is of no lega1 significance given the clear deposition by these witresses as to the manner in which the events r:nfolded themselves and the occurrence 6e which took place. Crt.A. Nos.897/2070, 900/2010 & 487/2012 e9

¶58The objection on behalf of the appellants resting on relationship to the d.eceased thus is untenable and hereby rejected. Failure to exPlain iniuries on accused Person

¶59Ms.Kamna Vohra, learned. counsel for the appellants has urged this court to disbelieve the prosecution also for the reason that Yadram had suffered serious injuries on his head and that the prosecution had withheld the MLC of Yadram deliberately and with mala fide intention.

¶60It is also urged that in the light of the omission of the prosecution to explain the injuries on accused Yad Ram, the case against Yad Ram ' <\\-^,. I-lur failed. The prosecution deserves to be completely disbelieved. This submission is vehemently opposed by Ms. Ritu Gauba, learned APP who has submitted that in the instant case, the failure to explain the injuries on the accused would be inconsequential. , VVe find that no plea of self-defence has been set up by *ry of the appellants. It is also not the case of the appellants that they were beaten by the other party.

61.. On the contrary, the appellants have disputed their very Presence on the spot. An examination of the defence set up by the agcused persons would show that Yadram set up a plea that he was working in Crl.A. Nos.897/2070, 900/2010 & 487/2012 @ the flower shop of DW-1 Dinesh Kumar and DW-3 Gulab on the fateful night and that he had left their shop only in the midnight of 25ft lune, 2004and was therefore not present at the alleged place of incident-

¶62The accused persons denied all allegations made against them in their statements under Section 313 of the CrPC and have stated that they havebeen falsely implicated. This being the position, it would be for the appellants to further suggest to the court and explain the circumstances in which the infuries were received by Yadram and to satisfy it that such injuries had resulted on his person during the occurrence in the Qr"*"ning night of 25u' and,26hFebruarp 2004.

¶63It is also important to note that Yadram was not arrested at the spot immediately after the occurrence but ran away from there. The appellant, Yadram, has been arrested on 26h February, 2004, the day lollowing the occuffence.

¶64We find that this issue was also considered by the Supreme Court -in

(2009) 11L SCC 96 Hari us. State of Maharashtra. Here also the o prosecution had failed to explain the injuries on the accused. The Supreme Court held that there is no general or absolute principle that non-explanation of an injury on an accused person shall in all cases Crl.A. Nos.897/2070, 900/2010 & 487/2012 eagb sz of oo vitiate the prosecution case and that it would depend on the facts and. circumstances of this case. The prior adjudication in Q976) 4 SCC 394 : i' 1"976 scc (cri) 671-Lakshmi singh as' state of Bihar and (1975) 2 scc 7 : 1"975 SCCD (Cri) ebq State of Gujarat as Bai Eatima was reiterated by the Supreme Court inHari as. State of Maharashtta (surpa).

¶65We may usefully reproduce the following principles laid down by Supreme Court on t his aspect in para !7 of. (1975) 2 SCC 7 : 1975 SCC

(Cri) 384 State of Gujarat as BaiFatim&:' '17. In a situation like this when the prosecution fails to explain the injuries on the pelson of an accused, ' depending on the facts of each case, any of the three results may follow:

(1) .That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. \

(2) It makes the prosecution version of the occurrence doubfful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all." ^66. hr the instant case, the appellants had set up a plea of alibi which has been disbelieved. The appellants also led evidence in support of this plea before the trial court but failed to prove the same. Therefore, in case the defence of the appellants was accepted, Yad Ram could not Crl.A. Nos.897/2070, 900/2010 & 487/201-2 .. have been injured in the incident as he has claimed that he was not there. Nothing turns in the instant case on the failure of the prosecution to prove the MLC of Yad Rarn. It would be for Yad Ram to prove when the injuries were received by him as they surface only after his arrest, which was long after the incident.

¶67Given the defence set uP by Yadram, the challenge raised by him .on the failure of the police to prove his MLC on record or explain his ; a .1 f 1---1 injuries is devoid of any legal merit. Effect of acquittal of a co-accused *. Ms. Kamna Vohra has also urged that Manju was a co-accused and facing the same charge. In the face of her acquittal, the conviction against the other persons cannot be sustained. It is submitted that the case of the prosecution against the appellants is based on the same evidence as was placed against Manju, such evidence having been disbelieved qua Manju, it is contended cannot be therefore believed so far as the appellants are concerned.

¶69Irr this regard, in para 29 of Balraje alias Trimbak (supra) the court held as follows :- '29. taw is fairly well settled that even if acquittal is recorded in respect of the.co-accused on the ground crt.A. Nos.BgT/2070, 900/20L0 & 4s7/20L2 that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is foqnd cogenf credible and truthful in respect of another accused."

¶70The trial court has carefully analysed the evidence placed on record so far as the allegations against Manju, who was a co-accused,, is concerned. It was found that PW-4I1az-an injured eye-witness; PW-L2 Kiran (daughter of the deceased) and PW-14 Smt.Kamrunisa, widow of - the deceased as well as PW-15 Imrary son of the deceased have deposed oath that it was the co-accused Manju who had called her four brothers, Surinder @ Babloo, Rajiv @ Raju, Sanjeev @ Sonu, Birender @ o Boya to the spot. As against their deposition, their brother PW-1 Rizwan Khan also an eye witress made a statement (exhibit PW-1,/ A ), which was the first statement in time, that it was the accused Yadram who had called his four brothers-in-law to the spot and exhorted them against the deceased Mohd. Rashid Khan. Other than this, there is nothing in the testimony of PW-L, 4,12 and 14 that Manju had exhorted her brothers to '.i 1J.<ttt the deceased Mohd. Rashid Khan. Only PW-15 Imran has made the allegations in this regiird against the accused M*jo. PW-14 Smt.Kamrunisa has alleged that Manju had got hold of her daughter, on Crl.A. Nos.897/2070, 900/2010 & 487/20L2 @ Kiran (PW-12), by her hair and thrown her on the ground, giving 'beatings to her. 7'1,.' The learned trial judge has thus held that the prosecution had failed to prove the requisite intention on the part of the accused Munjt to cause the death of the deceased Mohd. Rashid Khan as also of inflicting of injuries upon the injured PW-1 and 4. The trial court also held that the prosecution was unable to prove the case against Manjtt beyond reasonable doubt. In view of the above, Manju was acquitted of the charge for Q"-*tssion of 'offences punishable under Section 902/907/34 IPC of which she was charged. However, all the eye wifiresses have categorically named the appellants as present at the spot. specific roles in the incident are also assigned to them. Therefore, the acquittal of Manju would by itself not impact the case against the other appellants. The evidence against them has to be separately considered. Abscondance

¶72The learned trial court has also noticed the conduct of the accused persons in not being found at the normal place of their resicLence immediately after the incide,nt. It was held that in case they were I. . ; crl.A. Nos.8g7/2070, 900/20L0 & 487/20L2 €t innocent, there was no warrant for them to run away from their houses for'a long period of almost four months and having surrendered in the instant case on 20ft and,24h ]une, 2004 respectively or when they have been arrested. whether the prosecution has established common intention (section trr offunt" of -rrrdut (Suttioo 302IPC)

¶79It is now necessary to examine the primary contention of learned - counsel for the appellants. Ms.Vohra has urged that Yad Ram and Babloo have been found guilty of commission of the offence under 4ection g11/g4of the IPC and have been acquitted for offences under section 307/g4 of the IpC whilg sanjeev @ sonu and Birender @ Boya found, guilty of commission of the offence punishable under Section g07 /34 IPC with which they stand charged and acquitted for .commission of offences punishable under Section 302/34 of the IPC'

¶74Ms.Kamna Vohra, learned counsel for the appellants has vehemently contended that even if this Court was to accept the Corru.tness of the evidence in its totality, the prosecution had failed to prove that the accused pelsons had the common intention of murdering 'and causing death of Mohd. Rashid Khan. It is further specifically submitted by Ms.Kamna Vohra, learned counsel that there is no Crt.A. Nos.897/2070, 900/2010 & 487/2012 Poge 38 of 66 evidence at all of any cornmon intention between Yadram and Babloo to commit an offence und.er Section 302 of the IPC. Learned counsel urges that the prosecution has in fact made allegations of cornmon intention against six persons.

¶75On this, we find that this material aspect of the matter has completely escaped attention of the learned Trial ]udge and has not bqen considered in the impugned judgment.

¶76Ms. Kamna Vohra has also relied on the Supreme Court reported at AIR 2000 SC 1876 pronouncement of the Masumsha Hasanasha turotinan rs. State of Maharashtra; (2000) 1'0 SCC 307 Kunhayippu as,' Stqte of Kerala in which it was held that the accused cannot be said to have had the necessary intention of causing murder of the deceased while giving a particular blow though ultimately the blow had become -fatal. Ms. Vohra has also placed reliance on (L998) g SCC 497 Ram Prakash Singh as. State of Bihar and AIR 1994 SC 1-060 Raniitsinh Chanilrasinh Atodaria as. State of Guiarat.

¶77Ms. Vohra, learned counsel points out that even PW 1 - Rizwan Khan states that at about 11.15 P.ffi., a drunken Yad Ram, who was carrying an iron rod., came to the spot shouting abuses to his sister and Crl.A. Nos.897/2070, 900/2070 & 487/2012 making false allegations against her. Hearing these abuses, they came' out and his father Mohd Rashid Khad asked Yad Ram as to why he was abusing at this time of the night. Despite the admonition by his father, Yad Ram continued with the same. Mohd Rashid Khan (who was living on the first floor), came d.own from the first floor with his family. As soon as Mohd Rashid Khan reached down, Yad Ram hit him on the head with the iron rod. He then exhorted his four brothers-in-law that "aaj mauka achchahai, aaj saale ko khatamkar do."'Babloo, Sonu, Rajiv and Boya came carrying knives. while Yad Ram held Md. Rashid Khan om the back and Babloo attacked him on the neck; Sonu allegedly attacked Mohd Rizwan and his hand got injured; Rajiv and Boya attacked lzq while Manju who was standit g there took his sister by her hair and threw her on the ground. Mohd Rashed Khan started bleed'ing from the injury on his neck and he fell over on the cycles which were standing tkrere. At that time, a lot of neighbours gathered, there and I seeing the crowd, the accused pelsons ran away from there'

78.' The pronouncement of the Supreme Court tnRanjitsinh (Supra) is similar on facts to the instant case where three of the accusecl were alleged to have caught hold of the deceased while the fourth accused is Crt.A. Nos.897/2070, 900/2010 A 487/2012 6e ; stated to have inflicted a knife blow on the deceased. It was stated that the whole incident took place because of a quarrel that preceded it. The dispute was regarding a house which has been under the occupation of the brothers sometime or the other. Under the circumstances the court observed that it was difficult to hold that the accused intended to cause that particular *j*y which was found to be sufficient in the ordinary _ course of nature to cause death by the doctor. The court hccordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead, the Qppellant was convicted under Section 304 Part II of the IPC and sentenced to undergo ten years rigorous imprisonment.

¶79Our attention has also been drawn to the Division Bench pronouncement reported at 23 (1983) DLT 338 Paramjit Singh €t Ant, Vs. The State wherein A and B were charged with murder under Section

¶302As per the prosecution case, B was alleged to have orrly exhorted A "to teach lesson" to deceased. The injury was caused by A resulting in , the death of a person. The court considered the issue as to whether there . was any conunon intention and held that" teaching of lesson does not spell out any intention to cause death or to kill Teaching of lesson could be confinecl Crl.A. Nos.897/2070, 900/20L0 & 487/2072 only to causing of simple hurt. It was by chance that the appellants met the deceased. There was, therefore no pre-arrangedplan on their part, The mere fact that one of the appellant caught hold of the deceased would not make him guilty of murder, when he did not know that the other had a lcnife with him. He coulcl only be conaicted of causing simple hurt under 5.323." On the issue as to whether the acts were done with the intention of causing death in paras 18 and 19, the following obrutuations of the court may usefully be adverted to in extenso and read as follows:- "1-8. Flowever, we have to see if there was any common intention on the pffit of the appellants and whether the provisions of section 34 IPC are applicable or not. soe that there should be a common intention there must be meeting of minds to commit a'particular offence. The cornmon intention pre-supposes prior concert. Therd should be some pre-affanged plan, even though the said plan is formed hastily or all of a sudden. In the present case, as it appears from the evidence of prosecution, the intention of the appellants was to teach a lesson to Hardev Singh and Anil on account of the latter having indulged in sharp practice in gambling. Teaching of lesson does not spell out any intention to cause death or kill. Teaching of lesson could be confined only to causing of simple hurt. It was by ' chance that the appellants happened to meet Hardev Singh. There was, therefore, lto prearranged plan on their part. Surinder Singh did catch hold of Hardev - Siogh from behind but it carurot be said that he knew that Paramjit Singh would give knife stabs. Paramjit Singh was not carrying open knife. He took out the knife from his pocket. Therefore, Surinder Singh could Crl.A. Nos.897/2010, 900/2010 & 487/20L2 Poge 42 of 66 @ not imagine that Paramjit Singh would take out the knife. It was only one blow which was given. Had repeated blows by knife been inflicted it could be said that although Surinder Singh did not have any meeting of mind with Paramjit Singh for causing injuries by knife, yet plan or meeting of mind between him and Paramjit Singh was formed at the spot and then there could be existence of conunon intention. But there could be no such formation of plan with single injury only. Under these circumstances Sr:rinder Singh is guilty of causing simple hurt punishable under Section 323 readwith Section 34 IPC.

¶19The definition of 'murder' is given in Section 300 IPC. That definition, inter alta, sSys that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. 'According to the learned Additional Sessions Judge, Dethi there was an intention on the part of the appellants to kill Hardev Singh. We have already held ttrit there is no indication of existence of such an intention. Therefore, it is to be seen if any of the other parts of definition of 'murder' can be applicable. Clause ,3rd1y' of the said definition says that culpable homicide is murder if the act by which the death is caused, is done with the intention of causing bodily *joty to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In Virsa Singh a. The State of Punjab : 1958Cri Ll 8L8 the following was held by the supreme Court while interpreting clause '3rdly' of Section 300 IPC : "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300. "3rdlY" ; First, it must establish, quite objectivelly, that a bodily injury is presenf crl.A. Nos.897/20L0, goo/201,0'& 487/20L2 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 persent, 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 Once these four elements are established by the prosecution (and of course, the burden is on the prosecution throughout) the offence is murder under Section 300, 3rdly. It does not matter that there was on intention to cause death. It does not matter that there was on intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature not that there is any real distinction between the two)." QO. Learned.counsel for the appellants has also placed reliance on the pronouncement of the Supreme Court reported at 2006 (2) ICC 775 ,Rajpal 8 Ors. Vs. State of Haryana w}lretein accused persons did not repeat the blows on Crl.A. Nos.8g7/201O, 900/2010 & 487/2012 it was observed that the the head of the deceased Poge 44 of 66 which showed that there was no intention to commit murder. In this case the Supreme Court changed the conviction of the appellant from the conviction under Section 301"/34 to 304 Part II. The pronouncement deals at length with the distinction between "mulder" artd "culpable homicide not amor:nting to murdet" .

¶81On the same asPect, our attention has been drawn to the pronouncement of the Supreme Court reported at (2006) 2 SCC (Cil,) 394 Sanilhya fadhaa us. State of Maharashtra. In this case the court explained the conditions for applicability of section 300 Exception 4 of Qn" IpC. The court laid dowp the circumstances which are necessary to be satisfied for invocation of the Exception 4 and held as follows :- ,,8. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

¶9The Fourth Exception of section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exceptton4, there is only that heat of passion which clouds men's sober Crt.A. Nos.897/20L0, 900/20L0 & 487/201'2 Poge 45 of 56 redsons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in , Exception 'l'; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow, may have been struck, or some provocation given in the origin of the dispute or in whatevel way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal fociting. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicablb would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help'of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and

(d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the ' verbal altercation in theTbeginning. A fight is a cornbat between two,'and more persons whether with or without weapons. It is not possible to enunciate any Crt.A. Nos.897/2070, 900/20L0 & 487/2012 @ general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved. facts of each cabe. For the application of Exception4;itis not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken und.ue advantage or acted in cruel or unusual manner. The expression ,undue advantage' as used in the provision means'unfair advantage''"

¶82On the same aspect learned counsel has placed the Pronouncement ^ of the Division Bench of this court reported at 123 (2005) DLT 487 " SubhashKumar as. State of NCT of Delhl before this court. .,,Qr3. We may caution that the plea that because only a single blow was (\ . j irr"r, has to lead to only one conclusion that the case falls under the tI I lxception 4 to Section 300, is not an absolutb proposition of law and nust be tested in the facts and circumstances of each case. i l+. On the issue of whether there existed conunon intention to do the {" -'f | illeged acts in the instant case, learned counsel for the appellants has relied on 89 (2001) DLT 237 Raj Kumar as. State wherein the overt act $tuifuted to appellant was that he caught hold of the arms of Tara Chand and Sunil, the deceased. It was alleged that Dharamvir stabbed Sunil and there was nothing to show that the appellant had known that Dharamvir was carrying a knife. The exhortation was orrly to teach him Crt.A. Nos.8g7/201o, 900/2010 &487/2012 a lesson and not to ki}] him. In this background, it was held that the conviction of the appellant under Section 302/34 IPC could npt be sustained

¶85It is pointed out that the occurlence, as portrayed by the prosecution, .was a sudden occurrence on the Spur of the moment without any pre-meditation and without any conunon intention. It is urged that Yadram did not even know whether any of his brothers-in-Iaw would come , or, that any of them would be, armed. He had no knowledge that they were brihging knives with them. It is urged that Qh" brothers-in-law came from a different direction. There is no evidence that other than Yad Ram, the appellants had knowledge of the presence of the deceased at that place. The post mortem report shows that a single blow to the deceased Mohd. Rashid Khan resulted in his d.eath. The prosecution has alleged that the appellant Babloo inflicted this fatal injury. I

¶86Learned counsel contends that the prosecution witrresses have attributed exhortation to Manju; that as per the exhortation attributed to her, she only called out to her brothers and did not say that they should kill the appellant. Learned counsel points out that as against this the Crl.A, Nos,897/2070, 900/2010 & 487/2012 6e star witness of the prosecution PW 1 - Rizwan Khan has deposed that it was Yadram who has given the exhortation to his brothers-in-law to kill Mohd. Rashid Khan, that there was no exhortation to any particular person and that the exhortation did not refer to Babloo in particular to kill the deceased. The four brothers (including Babloo) came from.the other house and did not even know who was the object of the -_ exhortation. In this background, learned counsel has urged that there t. was no evidence at all to show that either Yadram or Babloo or any of the other appellants had intended to inflict a partibular injury which ^esulted in his death or fo kill Mohd. Rashid Khan. It is urged by learned counsel that there is no evidence at all that the appellants have acted in furtherance of a common intention of all of them.

¶87So far as Yad Ram is concerned, Ms. Kamna Vohra, learned counsel for the appellant has submitted that the role ascribed to him was exhortation of the co-accused and holding the deceased. In the --pronounceme4t of the Supreme Court 122 (2005) DLT 399 Laxman as, o State, it is urged that other thal using the exhorting words "maar saale lco" an.td catching the deceased from behind, no other role was ascribed in Crl.A. Nos.897/2070, 900/2010 & 487/2012 @ t', the evidence against Shyam while the fatal blow was alleged to have been given by Laxman.

¶88Learned counsel has drawn our attention to a decision da1sf, t$ilr f anuary, 20L0 of the Division Bench of this court in CrI.App.No.3A4/2005 Chhote LaI us. State anit Crl.App.No.5782005 Bhutey Lal as. State. The court observed that the appellants had a chance to inflict much more than one injury but were satisfied by causing a single injury. Placing reliance on the pronouncement of the Supreme Court reported at 1-984 SC 7Sg Tholan as. State of Tamit N adu and L982 SC 1466 Gurmail Singh Q O6 us. State of Punjab,rtwasobserved that there was only a single injury and the incident happened on the spur of the moment. In this background, the conviction under Section 302 IPC was altered to one under Section 304 Part II of the Indian Penal Code' iig. It iS asserted by Ms. Vohra that even the exhortation attributed to Yad Ram does not exhort to kill but refers only to "maar" which when translated reads "bea('. From the facts on record in the present case as well it could not be said that there was prior meetin g of mind, pre-concert and pre-determination to murder the deceased. Crt.A. Nos.897/2070, 900/20L0 & 487/20L2

¶90In this regard,,reference can also be made to the pronouncement of the Supreme Court relported at (1"998) 7 SCC 2L6 Matadin I Ant VA. I State of Maharashtra"wherein also the allegation that Matadin had exhorted his fellows by saying "maaro saale ko" wheteafter other accused stabbed the deceased resulting in his death. Here conviction of Matadin und.er Section 302/34IPC was varied to a conviction under Section 324/34of the IPC and his sentence was reduced to imprisonment for the period already undergone by him. 91,. In the case reported atL999 SCC (Cril 74, Aiay Sharmaas. State of Rajasthan, tlte expression used by one of the accused was 'maaro'. On the said facts, the Supreme Court held that by saying 'maaro', it cannot be said that comrnon intention to - kill the dieceased and since the appellant only said 'maaro' which did not mean to kilI, therefore he ought not to have been convicted under section 302read with section 34 IPC and was accordingly convicted under section 324 read with Section 34 IPC and sentenced to the period already undergone.

¶92Yad Ram and Babloo have been convicted for offence punishable under Section 302/34 IPC. Before commission of examining the factual matrix which has been established by the prosecution before us, Crl.A. Nos.B97/2070, 900/2010 & 487/2012 Poge 5l of 66 the critical question.which has to be answeled is as to whether the conviction of these appellants under Section '302 of the Indian Pena1 Cod.e is contri.ry to law or whether they could, at the mosg have been held guilty for culpable homicide not amounting to murder' In this regatd.,we may usefully refer to the authoritative pronouncement of the Supreme Court in the iudgment reported' at Q005) I SCC 7L' Shanker Narayan Bhadolkar as. state of Maharashtra wherein the binding principles which would guid,e consideration on this issue have been authoritatively laid down. The discussion and the findings of the Supreme Court deserve to be considered in extenso and reads aS follows:- ,,24. Tlte academic diStinCtiOn between "murder" and r'culpable homicide not amounting to murdet" has always vexed the Courts. The confusion is caused, if Couris losing sight of the true scope and meaning of the terms used-by the legislature in these sections, allow themselves to be drawn into minute abstractions' The safest way of approach to the interpretation and application of thes" pro,tisions seems to be'to keep in fo.o, the keywords used in the various clauses of sections 299 and.300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Crl.A. Nos.897/2070, 900/2010 & 487/20L2 Poge 52 of 66 Section 299 A p etscr cotmits ctilpable homicide if the actby vf,tidr the death is causedis done-INTENTION

(a) with the irferrtion of causing death; or causing death; or G) wift the intenton of causing suctr bodily injuryas is likely to cause death; or

(c) with the knowledge that ttte act is lilcly to cause death. Sectiut300 Subj ecl to certain et<cePtions culpable homicide is nurder if the aclby whidr the deathis causedis d01e-

(1) with $e intendon of

(2) with the interfion of causin g sudr b odily injury as the o ffender latows' to b e ' " lik-dy to car:se the death of theperson to rairom the harm is caused, or

(3) With the ird.ention o f causing bodily inj ury to aly person and the bodily injwy inbnded to be inflicted is sufficientinthe rdinary course ofnature to Buse death: or

(a) with the knowledge that theact is so imminertly dargerous that it nust in all pmbability cause deatJr or zudrbodilyinjuryas is likdy to cause death, ard wifioutarry ecause frr inorrring the ri sk of causing dedh o'sudrinjuryas is mmtioned above

¶25Clause (b) of Sectionzgg corresponds with Clause , (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caltsed to him is likeiy to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to "' gause death" is not an essential requirement of Clause

(2). O^ly the intention of causing the bodily injury coupled with the offenderrs knowledge liketihood of such injury causing the death particular victim, is sufficient to bring the within the ambit of this clause. This aspect of

(2) is borne out by illustration (b) appen Section 300. Crl.A. Nos.B97/2070, 900/2070 & 487/2012 of the of thq killing Clause ded to

¶26Clause (b) of Section299 does not postulate any such knowledge on the part of the offender. Insteinces of cases falling under Clause (2) of Section 300 can be where the as'sailant causes death by a first blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nafure to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death,' occurring in the corresponding Clause (b) of Sectton299, the words "sufficient in the ordinary course of nafure" have been used. Obviously, the' distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of section 299 and Clause (3) of section 300 is one of the degrees of probability of death resulting from the intended bodily irj*y. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest dugt"u. The word 'Iikely;in Clause (b) of , Sectiqn29g conveys the sense of probable as distiri'guished from a mere possibility. rne words "bodily irj"ty.......... sufficient in the ordinary course of natur;e to cause death" mean that death will be the "most probable" result of the injury, having regard to the orclinary course of nature. crl.A. Nos.B97/2070, 9A0/2010 & 487/2012 Poge 54 of 66 t I

27.For cases to fall within Clause (3), it is not necessaly that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Aru. v. State of Kerala, AIR 1966 5C1874 is an apt illustration of this point."

¶93' The Supreme Court thereafter discussed the principles laid down by Vivian Bose, I. in the well known prior pronouncement reported at 1-958 SC 465, Virsa Singh vs. State of Punjab rn para 29 thus:-

¶29The ingredients of clause "Thirdly" of Section300, IPC were brought out by the illustrious Jud.ge in his terse language as follows: "12.To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the irj*y 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, of that some other kind of injury / was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourth1y, it must be proved that the injury of the Wpe 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 ' Crl.A. Nos.B97/2070, 900/20J.0 & 487/2012 poge 55 of 66 6) enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

¶94In para 30, the Supreme Court has also reiterated the explanation of Vivian Bose, J. in para 1.6 of. Virsa Singh (Supra) in the following terms:-

¶95In "30. The learned Judge explained the third.ingredient in the following words (at'page 468): "The question is not whether the prisoner intended to inflict a seriotis 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 inJlicted it, the only possible inference is that he intended to inflict it. Whether h9 knew of its seriousness or intended serious consequences, is neither here or 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. " para 3L, the Supreme Court finally thereafter culled out the following applicable principles :- Crl.A. Nos.897/2070, 900/2010 A 487/201,2 CO "3L. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has ' become part of the rule of law. Ilnder clause {hirdly of Section300 IPC, culpable homicide is murder, tf both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature'to cause death. It must .be proved that there was an intention to inflict that particular bodily injury which, in the ordinary cou-rse of nature, was sufficient to cause deatfu viz' that the injury found to be present was the irj*y that was intended to be inflicted.,,

¶96The above principles have been reiterate dby the Supreme Court in the subsequent pronouncement reported at (2007)gsccL2g,Abbas AIi as. State of Rajasthan.

¶97In the instant case, it is the case of the prosecution that it was yad Sum alone who was abusing the daughter of the deceased. and that the other appellants rvere called.from their residence. There remains an area of doubt even as to who exhorted or whether there was exhortation. While Manju was charged with exhortatiory she has been acquitted of charge. There remains the testimony of PW 1" who attributes the exhortation to Yad Ram. As noted above, the exhortation was made generally and not specificatly to Babloo. The other appellants could. not Crl.A. Nos.897/2070,900/2010 & 4g7/2012 have known as to who was the object of the exhortation. The case of tl're prosecution itself shows that there was no pre-meditation in the incident. Yad Ram and the other appellants did not come together but came from different directions. There is thus no evidence that anybody exhorted any person to kill the deceased. There is no evidence that Babloo was exhorted to kill Mohd. Rashid Khan.

¶98The record placed before this court would show tha.t there is no ( evidence to show that the accused persons harboured intehtioru let alone conunon intention to cause such injury to Mohd. Rashid Khan which would result in his death. There i, utro no evidence that the appellants acted in furtherance of such intention. There is also nothing to show that Yad Ram and Babloo had a cornmon intention to cause the death of the deceased. When Yad Ram caught the deceased he would not have known as to whether anyone would attack Mohd Rashid Khan or where the blow would be given. It is, therefore, not possible to hold that the prosecution has satisfied the requirement of Section 34 of the Indian Penal Code against the appellants. Crl.A. Nos.B97/2070, 900/2010 & 487/2012

¶99It is the case of the prosecution that Yad Ram held the deceased and that Babloo had inflicted the single blow which resulted in the death of Mohd Rashid Khan.

¶100A single blow, not aimed at a particular part of body, has resulted in the death of Mohd Rashid {hu.. There is no evidence that Babloo or any of the appellants were aware that Mohd. Rashid Khan is to be _' finished or killed. It is also in evidence that there were several persons from both sides and there was a squabble in a small place. The prosecution has led no evidence that Babloo intended to inflict the *{ particular injury and that the same was not accidental or unintentional. There is thus no evidence of intention of any person to kill the deceased. 101' In the light of the judicial pronouncements noted. above, we are therefore of the view that in the present case, in order to bring home the guilt for commission of an offence of murder, the prosecution was required to establish beyond reasonable doubt al1 the conditions of section 300 of the IPC. The prosecution has established that the " deceased Mohd. Rizwan Khan had a bodily ,rj,rry (Section 300 of the IPC'firstly'); that the injury was a stab wound caused by a sharp edged weapon ('section 300 of the IpC secondry'). Frowever, the prosecution Crl.A. Nos.B97/20t0, 900/20j.0 & 487/2012 Poge 59 of 66 could not establish that there was an intention to inJlict that palticular ..9 itjtry and that it was not accidental or unintentional, or even that soine other kind of injury was intended (i.e, the requirement of Section 300 of the IPC'thirdly'). It is only if all three elements stood proved that the . injury would proceed to the last clause of Section 300 of the IpC. (Ref. 1'958 CILI 818, Virsa Singh as. State of Punjab). The case therefore falls within Exception 4 to Section 300 of the IpC.

¶102We, therefore, find it is not possible to sustain the conviction of Yad Rarn and Babloo under section 302 of.the Indian penal eode. 103' It remains, however, an established fact that the appellants action resulted in injuries as discussed above. The question is whether these appellants could be punished for an offence with which they were not charged. In paras 2T and 28 Balaraje alias Trimbak as. state of Maharashtra (supra) and (2006) 2 SCC 450 : 2006 e) SCC (Cri) 661 Radha Mohan Singh as-State of lJ.P.,the court had occasion to consider the effect of an omission to frame or error in the charge framed against the accused persons. It has been held that an accused can be convicted for an offence for which no charge was framed unless the Court is of the opinion that the failure of justico would in fact occasion. Crl.A. Nos.B97/2070, 900/20j.0 & 487/2012 ,104. A scrutiny of the examination of Yad Ram and Babloo under section 313 of the CrPC would show that they had been made aware of : the basic ingredients of the offence of culpable homicide not amount to murder and given an opportunity to explain the incriminating evidence which had begn recorded against him. The facts sought to be established by the prosecution against them were also put to them.' L:t this background the appellants could be convicted for commission of such offence under the IPC, ingredients whereof he had been put to notice.

¶105In the present case, there is unimpeachable evidence that Yad Ram and Babloo were responsible for causing the death of ,Mohd. Rizwan Khan. Thuy are, therefore, guilty of commission of the offence of gulpable homicide not amounting to murder. L06. We also finci that in the instant case, the trial court has rightly held that the failure to recover or seize the weapons of offence is of no consequence inasmuch as the case of the prosecution rests on the testimony of eye-witnesses.

¶107So far as the appellant \ajiv@ Raju is concerned, as noted above by the judgment dated 27h March, 2012,.on the samb evidence, he has been Crl.A. Nos.897/2070; 900/2070 & 487/2012 poge 61 of 66 held quilty .for commission of the offence under Section 920 / 94 IPC. He has been acquitted of the charge framed against him Section g02/ 34 e. g07 / glof the IPC. of tl're under

¶108In the light of the above discussion, we'also find that there is no evidence that appellants Sanjeev @ Sonu and Rajiv @ Raju were at all involved in the attack on Yad Ram. Flowever, they are alleged to have _ attacked PW1 Mohd Rizwan. Sanjeev @ Sonu resulting in recording of MLC Exhibit PW7 / A wherein the doctor has opined that his injuries were simple in nature and inflicted by a blunt weapon. Ijaz is alleged to have been injured similarly by Birender @ Boya. These three appellants were armed with knives.

¶109The above narration would show that there is also no evidence at all that sanjeev @ sonu, Birender @ Boya or Rajiv @ Raju acted in furtherance of a common intention. 1L0' We may also examine the prosecution's case so far as Sanjeev @ sonu, Birender @ Boya and Rajiv @ Raju is concerned. As per the 'medical examinatioru the injuries of Ijaz artdMohd. Rizwan have been found to be simple in nature and inflicted by blunt force. Again there is no evidence at a/l'that the injuries were the result of pre-meditation or crl.A. Nos.897/20L0, sod/zoto & 487/20L2 @ plaruring. The prosecution has not led any evidence about any qircumstances on record which would even suggest that the appellants acted with intentions or had knowledge that any act on their part could cause death. In this background the conviction of Sanjeev @ Sonu and Birender @ Boya for commission of offences punishable under Sectio n30T /J4IpC - is not sustainable. 11'l'. We find that all incriminating circumstances in the evidence against them have been put to them and they have be'en given opportunity under Section 313 of the Cr.P.C. to explain the same. Given the settled legal position" thuy can thus be convicted for commission of such offences as are disclosed in the evidence on record.. We are satisfied that the prosecution has established commission of offences ' under Section 324 of the Indian penal Code.

¶112We therefore hold that the conviction of Sanjeev @ Sonu, Birender @ Boya for commission of an offence under Section 307 / g1of the Indian Penal Code are not sustainable and is hereby set aside and quashed. Thuy are held guilty for commission of the offence under Section 324 of , Crt.A. Nos.897/20t0, 900/2070 & 487/2012 Ge the hrdian Penal Code and each of them is held goilry for commission of offences under Section 324 of the IPC. The conviction of nuli rORaju for the commission of offence ",under Section 324 of.the IPC is unassailable.

¶113As discussed above, there is also no evidence of common intention being nursed. by Rajiv @ Raju. His conviction for commission of offence punishable under Section .34 of the Indian Penal Code is therefore unsustainable. Flowever there is sufficient evidence to sppport his conviction for comrnission of offences punishable under Section 324 of the hrdian Penal Code.

¶114As a result of the above, we are required to modify the judgment dated 28m May, 2010 on conviction and the order of sentence dated 3L't Muy, 2010 imposed upon the appellants in.Crl.Appeal Nos.ggz/2010 & 900 / 2010 which shall stand substiruted by the following:-

(i) The appbllants Yad Ram and Babloo in Crt.Appeal No.90 0/2010 . Ne held guilty for commission of .offences under Section 299 read with section ?,|04 of the Indian penal Code and are sentenced to rigorous imprisonment for a term of ten years and fine for a sum of Rs.5,000/ - each. In default of payment of fine, Crl.A. N os.897/20I.0, 900/20J.0 & 487/20j.2 ' t'hesc appcllants shall undcrgo further simplc imprisonment clf six mclnths.

(ii) Thc appellants Sanjeev @ Sonu and Bilender @ 'Boya in Cri.Appeal No.897/2010 are convicted for commission of an offence under Section 324 of the Indian Penal Codc and sentenced to rigorous imprisonment of two ycars.each and fine of Rs.2,000/- cach. ln default of payment of finc, these appcllants shail und.ergo furthcl simple imprisonmcrrt of two inonths.

¶115We are further required to modify the judgment dated t7tt', Mar:clr, 2072 finding Rajiv @ Raju guilty of commission of an offcnce trncler Section 324/L4IPC. :r1'r" uppellant Rajiv @ Raju shall stand cor-wictccl for commission of an offcnce under Section 324 of the Inc{ian Pcnal Codc. 11,6. Ilhc challenge to the ordcr of sentence dated zL)th March, 2012 by Rajiv @ Raju is hereby rejccted.

¶717In vicw of thc disposal of. crl.Appeal No.4Bz/ 201.2, Crl.Misc.(Ilail) No.822/201.2 & Cr1.M.A. No.524l/2012 do not survive Crl.A. Nos.897/20L0, 900/201"0 & 487/2012 Poge 65 of 66 for adjudication. terms. These applications are disposed of in the above I -,t\ lfrtu Tfu'Y-g/rA MITTAL) ,/ JUD GE )H (v.K.SHALI) JUDGE MAYr.+Tzorc Crl.A. Nos.897/2070, 900/20L0 & 487/2012