Rajeev Kumar Shrivastava, J
The present appeal under Section 374 (2) of CrPC has been filed challenging the judgment of conviction and sentence dated 29-11-2011 passed by
Second Additional Sessions Judge (Fast Track Court) Vidisha (MP) in Sessions Trial No.02 of 2010, by which appellants have been convicted under
Section 302/149 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000/- each; for commission of murder of deceased Ganeshram
and under Section 307/149 of IPC, sentenced to undergo life imprisonment with fine of Rs.1,000/- each; for commission of murder of deceased
Babloo and further, under Section 307/149 of IPC, sentenced to undergo seven years RI with fine of Rs.500/- each for attempting to commit murder
of complainant Ramu with default stipulations. Accused Hukum Singh and Pooran Singh have been convicted under Section 148 of IPC and
sentenced to undergo RI of two years with fine of Rs.500/- each; with default stipulation while rest of accused have been convicted under Section 147
of IPC and sentenced to undergo two years RI with fine of Rs.500/- each; with default stipulation.
(2) In brief, the prosecution case is that an information was given by Vinod (brother of complainant Ramu) on telephone that on 18-10-2009 that at
around 07:00-08:00 pm his mother Rambai was set on ablaze by pouring kerosene on her by accused Omkar, Pooran and Pratap and thereafter, he
along with maternal uncle Ganeshram and cousin Babloo went on the motorcycle from Ganjbasoda to see his mother Rambai and when they reached
village at around 12:30 O'clock, they saw that all accused persons armed with ballam, sword, luhangi and lathi are attacking with intention to kill the
complainant and his maternal uncle Ganeshram and brother Babloo. When they tried to save themselves, all the accused persons assaulted them and
killed deceased Ganeshram and Babloo. At around 05:15 am, in the morning of next day, SHO of Police Station Kurwai, Ramkishore Gautam (PW13)
reached the spot and recorded a Dehati Nalishi and on the basis of Dehati Nalish FIR vide Crime No.248 of 2009 for offences under Sections 147,
148, 341, 307, 324, 323, 302 of IPC was registered against appellants-accused Ex.P6 and a merg was recorded under Section 174 of CrPC vide Ex.P7
on getting merg intimation. During investigation, SHO of Police Station Kurwai, namely, Ramkishore Gautam (PW13) recorded the spot map and
Naksha Panchnama of dead body of deceased Ganeshram vide Ex.P9 and ExP11 as well as safina forms was prepared vide Ex.P10. Dr. PK Jain
(PW1) examined the complainant injured Ramu and the postmortem of deceased Ganeshram and Babloo was conducted vide Ex.P3 and Ex.P5. From
the spot, bloods-stained and plain soil were collected and incriminating articles viz. sword, Ballam, Plastic shoes, Belt and knife were seized vide
seizure memo Ex.P13. From the road, three motorcycles were seized vide Ex.P13 and Ex.P.14 On 26-11-2009 in PHC Kurwai clothes of deceased
Ganeshram and Babloo were seized vide Ex.P43 and Ex.P44 pand thereafter, the same were sent to FSL for examination. FSL report is Ex.P46.
Thereafter, the police arrested accused persons and seized the weapons, recorded the statements of witnesses and after completion of investigation
and other formalities, filed charge sheet before Court of JMFC Kurwai for offences under Sections 147, 148, 149, 302, 307, 341, 323, 324 of IPC from
where, the case was committed to the Sessions Court for its trial. The trial Court framed charges against appellants under Sections 148, 307/149,
302/149 of IPC. Statements of accused were recorded under Section 313 of CrPC who denied the charges. Appellants in their defence pleaded that
they have been falsely implicated. In support of defence, the appellants examined Sarswati Bai as DW1. Similarly, the prosecution in support of its
case has examined as many as 13 witnesses.
(3) The learned Trial Judge, after appreciating the entire evidence led by the prosecution and relying on the same, found charges against appellants as
proved and accordingly, convicted and sentenced them for the offences as mentioned above in paragraph 1 of this judgment.
(4) At this juncture, it is out of place to mention here that as per order-sheet dated 22/06/2022, in the light of judgment passed by Supreme Court in the
case of Surya Baksh Singh vs. State of Uttar Pradesh (2014) 14 SCC 222, it is mentioned that the case of appellant No.6 Pratap shall be considered
by this Court after going through the record and hearing the appellants' counsel.
(5) It contended by Shri Rathore, learned counsel for the appellants that the trial Court has committed an error in convicting and sentencing the
appellants as there are some material contradictions and omissions in the evidence of prosecution witnesses. It is contended that there are five eye-
witnesses of incident namely, Roopa Bai (PW3), Sakun Bai (PW4), Vinod (PW5), Dilip (PW6) and Ramu (PW10), however, conviction of appellants
is only based on the solitary witness or nterested witness and no other evidence is available on record to prove prosecution evidence. It is further
contended that Dilip (PW6) in his evidence deposed that when he was coming on motorcycle along with deceased Ganeshram and others, a quarrel
took place and he immediately ran away to save his life and thereafter, he did not come to see about the incident. Similarly, PW10 Ramu also did not
fully support prosecution case and turned hostile who in his evidence deposed against accused Pooran, Pratap and Omkar that all of them had
assaulted deceased Ganeshram and thereafter, the deceased Babloo and the name of accused Hukum Singh and Narayan Singh were not mentioned
by this witness specifically in his statement though he had earlier mentioned the name of all accused persons in the FIR Ex.P6. It is further submitted
that the ocular evidence of sole eye witness does not support medical evidence and prosecution has utterly failed to prove its case beyond reasonable
doubt. The genesis of prosecution case creates a serious doubt because the complainant Ramu (PW10) who sustained injuries in the incident, has
been declared hostile by prosecution as there are some discrepancies and inconsistencies in his evidence. It is further contended that prosecution has
not produced any independent witness. It is further contended that there is some contradiction and omission in Dehati Nalishi Ex.P42 and the police
diary statement of Ramu (PW10). It is further contended that FSL report did not support prosecution evidence in regard to recovery and there is a
serious doubt regarding seizure of motorcycles from the place of occurrence by Investigating Officer concerned. It is further contended that evidence
of complainant Ramu (PW10) and Dilip (PW6) is self-contradictory to each other. Rakesh is alleged to be the bother of Dilip (PW6) as well as the
injured witness was either produced by prosecution before the Court or was medically examined. It is further contended that the evidence of
prosecution witnesses namely Roopa Bai (PW3), Sakun Bai (PW4) and Vinod (PW5) are hearsay witnesses as well as the the related witnesses,
therefore, their evidence is not reliable and admissible. Hence, it is prayed that the appellants deserve acquittal and the impugned judgment of
conviction and sentence deserves to be set aside.
(6) Per contra, learned counsel for the State supported the impugned judgment and submitted that there is no infirmity in the impugned judgment and
learned trial Court has not committed any error in convicting and sentencing appellants for aforesaid offences. It is further contended that there are
specific allegations against appellants accused that they have brutally assaulted deceased Ganeshram and Babloo causing their death. According to
the opinion of Dr. PK Jain (PW1), deceased Ganeshram had sustained eight injuries and died due to head injury and the postmortem report Ex.P5 of
deceased Babloo also specifically proves that eight injuries were also found on the body of deceased Babloo and he died due to cumulative effect of
injuries sustained by him. Injured witness Ramu (PW10) in his evidence has specifically deposed that accused Hukum Singh was also present on the
spot at the time of incident and he had participated in the crime and he gave a blow of sword causing injuries on his lower lip and Dr.Jain (PW1) has
also proved MLC Ex.P1. In para 7, injured witness Ramu (PW10) has specifically deposed that accused Hukum Singh, Narayan Singh and Chintu had
participated in crime and when the alleged crime was committed, both the deceased were died due to cumulative effect of multiple injuries sustained
by them and, therefore, the appellants are responsible for causing death of both deceased. Hence, it is prayed that the appeal deserves dismissal.
(7) It would be necessary to dilate on the questions mentioned hereunder for determination of present appeal are:-
(A) As to whether death of both deceased was in homicidal nature or not?
(B) As to whether appellants were unlawfully assembled on the spot with common object causing death of both deceased as well as causing injuries
to complainant Ramu or not ?
(8) It would be appropriate to throw light on the relevant provisions of Sections 299 and 300 of Indian Penal Code.
The Law Commission of United Kingdom in its 11th Report proposed the following test :
The standard test of 'knowledge' is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt
of their existence?
[See Text Book of Criminal Law by Glanville Wiliams (p.125)]
“Therefore, having regard to the meaning assigned in criminal law the word ""knowledge"" occurring in clause Secondly of Section 300 IPC imports
some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing
such bodily injury as the appellant knew to be likely to cause the death of Shivprasad. So, clause Secondly of Section 300 IPC will also not apply.â€
The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of
Section 300 IPC reads as under:-
''Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
(9) The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as
the words ""intention of causing death"" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though
the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death of
the deceased in the ordinary course of nature. This is also borne out from illustration (c) to Section 300 IPC which is being reproduced below:-
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence.
Here A is guilty of murder, although he may not have intended to cause Z's death.
(10) Therefore, the contentions advanced in the present case and which are frequently advanced that the accused had no intention of causing death of
deceased is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
(11) The scope and ambit of clause Thirdly of Section 300 IPC was considered by the Supreme Court in the decision in Virsa Singh Vs. State of
Punjab AIR 1958 SC 465 and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have
given a single spear blow and the injury sustained by the deceased was ""a punctured wound 2""x ="" transverse in direction on the left side of the
abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound."" After
analysis of the clause Thirdly, it was held: -
The prosecution must prove the following facts before it can bring a case under S. 300 ""Thirdly""; First, it must establish, quite objectively, that a bodily
injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was
an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was
intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just
described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely
objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of
course, the burden is on the prosecution throughout), the offence is murder under S. 300 ""Thirdly"". It does not matter that there was no intention to
cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is
no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to
cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of
purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.
(12) In the case of Arun Nivalaji More vs. State of Maharashtra (Case No.Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :-
“11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further
enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one
of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of
the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the
offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will
show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause
the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person
commits culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death.
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of
Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is
such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the
expression ""if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause
death"" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be
liable to be convicted under Section 304 Part II IPC because of the use of the expression ""if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death"" where knowledge is the dominant
factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The
expression ""the offender knows to be likely to cause death"" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The
dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being
acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under -
An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact.
It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together,
for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be
intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge
without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance
rather than desire, and therefore not intended.
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One
knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so.
Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally
be regarded as knowing it.
(13) Section 299 of Indian Penal Code runs as under :-
“299. Culpable homicide.--
Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.â€
(14) Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing
of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable
homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the
special mens rea necessary for the offence.The knowledge of third condition contemplates knowledge of the likelihood of the death of the person.
Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the
scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally
speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the
expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
(15) Section 300 of Indian Penal Code runs as under :-
“300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom
the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or--
Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as
is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.â€
(16) ''Culpable Homicide'' is the first kind of unlawful homicide. It is the causing of death by doing ;(i) an act with the intention to cause death; (ii) an
act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
(17) Indian Penal Code recognizes two kinds of homicide :
(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two
kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not
amounting to murder (Section 304 of IPC).
(18) A bare perusal of the Section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the
knowledge and the third clause refers to knowledge alone and not the intention. Both the expression “intent†and “knowledge†postulate the
existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the
consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable
homicide is said to have been committed.
(19) There are three species of mens rea in culpable homicide(1) An intention to cause death; (2) An intention to cause a dangerous injury; (3)
Knowledge that death is likely to happen.
(20) The fact that the death of a human being is caused is not enough unless one of the mental state mentioned in ingredient of the Section is present.
An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and
reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be
gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved
fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid,
ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
(21) In the scheme of Indian Penal Code, “Culpable homicide†is genus and “murder†is its specie. All “Murder†is “culpable
homicide†but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to
murder.
(22) In the case of Anda vs. State of Rajasthan reported in 1966 CrLJ 171, while considering “third†clause of Section 300 of IPC, it has been
observed as under:-
 “It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on
sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and
when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used,
sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which
must be sufficient to cause death in the ordinary course of nature.â€
(23) In the case of Mahesh Balmiki vs. State of M.P. reported in (2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of
the deceased would attract Section 302 of IPC, it has been held thus :-
“There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under
Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of
offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of
the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors
which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased
was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the
description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed
knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to
cause death.â€
(24) In the case of Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat reported in (2003) 9 SCC 322, it has been observed as under :-
“The 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 Exception 4, there is only that heat
of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in
Exception 1; 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 whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of guilt upon equal footing. 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 applicable 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 the beginning. A fight is a combat
between two and more persons whether with or without weapons. It is not possible to enunciate any 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 case. For the
application of Exception 4, it is 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 undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means
'unfair advantage'.''
(25) In the case of Pulicherla Nagaraju @ Nagaraja vs. State of AP reported in (2006) 11 SCC 444, while deciding whether a case falls under Section
302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
“Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance
of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting
to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are
not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder
punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among
other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of
sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether
there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in
a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not
exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.
Be that as it may.â€
(26) In the case of Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the
skull of the deceased with a crowbar would attract Section 302 IPC, held thus:-
“16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body
chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further
chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with
which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant
intended to cause death of the deceased.â€
(27) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639, this it has been held as follows:-
“7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule
that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature
of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the
deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck
or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death
was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the
deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held
by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the
accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that
any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon,
would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the
issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the
judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section
300 IPC and observed in para 21 as under: (SCC para 21)
“21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was
committed without premeditation;
(ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue
advantage or acted in a cruel or unusual manner.â€
(28) In the case of Bavisetti Kameswara Rao v. State of A.P. reported in (2008) 15 SCC 725, it is observed in paragraphs 13 and 14 as under:-
“13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence
would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the
basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances
which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they
being (i) whether the act was premeditated;
(ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily
depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of
the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely
because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not
being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the
version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused
for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the
nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly
of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465], the Court set aside the acquittal under
Section 302 IPC and convicted the accused for that offence.
The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh
case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16)
“16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is
not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap.â€
The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17)
“16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is
proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the
section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the
intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict
the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances
warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise,
and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the
injury in question.…
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of
the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the
sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended
to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be
to inflict a totally different injury. The difference is not one of law but one of fact.â€
(29) Section 149 of Indian Penal Code runs as under :-
“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- If an offence is committed by any
member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to
be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is
guilty of that offence.â€
(30) There are two essential elements covering the act under Section 149 of Indian Penal Code, which are as under:- (i) The assembly should consist
of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.
(31) For recording a conclusion that a person is guilty of any offence under Section 149 of IPC, it must be proved that such person is a member of an
“unlawful assembly†consisting of not less than five persons irrespective of the fact whether the identity of each one of the five persons is proved
or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the five enumerated objects
specified under Section 141 of IPC.
(32) The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of
the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the
gathering. Assessing the common object of an assembly only on the basis of overt acts committed by such individual members of the assembly is not
permissible.
(33) In the matter of Dani Singh v. State of Bihar [(2004) 13 SCC 203], the Hon'ble Apex Court has observed as under :-
“The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a
person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141.
Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial
question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common
objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is
alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have
understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object'
means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons,
who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement
after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other
members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The
expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common
object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the
object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point
beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their
common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of
object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.â€
(34) In the case of Mahadev Sharma v. State of Bihar [(1966) 1 SCR 18], the Hon'ble Apex Court has discussed about applicability of Section 149 of
IPC and observed as under :-
“The fallacy in the cases which hold that a charge under Section 147 is compulsory arises because they overlook that the ingredients of Section
143 are implied in Section 147 and the ingredients of Section 147 are implied when a charge under Section 149 is included. An examination of Section
141 shows that the common object which renders an assembly unlawful may involve the use of criminal force or show of criminal force, the
commission of mischief or criminal trespass or other offence, or resistance to the execution of any law or of any legal process. Offenses under
Sections 143 and 147 must always he present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges
need not be framed -separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under
Section 147 or Section 148, and Section 147 is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is
under Section 149 read with an offence under the Indian Penal Code.â€
(35) It is relevant to mention here that if all the necessary ingredients are present in a case when charges were framed under Section 149 of IPC,
each member of unlawful assembly shall be held liable. The condition precedent is that the prosecution proves the existence of unlawful assembly with
a common object, which is the offence.
(36) In Kuldip Yadav vs. State of Bihar [(2011) 5 SCC 324], it is held that a clear finding regarding nature of the common object of the assembly must
be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under
Section 149 of IPC. Foremost, essential ingredient of Section 141 of IPC must be established.
(37) Dr. PK Jain (PW1) in his evidence deposed that on 19-10-2009 he was posted as Medical Officer in PHC Kurwai and on the said date, he
medically examined injured Ramu (PW10) and found following injuries on the body of injured Ramu (PW10):-
Injury No.1:- One Incised wound size 1x ½ x1/4 '' on the right of lower lip.
Injury No.2:- Multiple abrasions size ¼ x ¼'' on the right knee.
Injury No.3:- One Abrasion size 2x 2'' on the right leg.
Injury No.4:- Swelling of size 2x2'' on the right arm
Injury No.5:- One abrasion size 2x2'' on the right palm
Injury No. 6 :- Swelling size 3x3''on the left knee.
According to the opinion of doctor, injury no.1 was caused by hard and sharp object while the rest of injuries were caused by blunt object and the
injuries were within 24 hours of examination. The injured Ramu was advised for X-ray of injury nos.2, 3 & 5. Injury no.1 is simple in nature. MLC
report is Ex.P1.
(38) Dr. PK Jain (PW1) in his evidence also deposed that on the same date, on receiving the requisition form Ex.P2 regarding conduction of
postmortem of deceased Ganeshram, he conducted the postmortem of deceased and found following injuries on the body of deceased Ganeshram:-
''Injury No.1. One lacerated wound 1x ¼ '' on occipital region with fracture of bone size 1''x 1/8 ''.
Injury No2. Depression 1x1'' on left parietal bone with blood with subcutaneous with sufficient quantity.
Injury No.3:- Swelling on both maxillary region.
Injury No.4:- Compound fracture of humorous lower end with two wounds size 1x1''x bone deep x ¼ x ¼ ''
Injury No.5:- Lacerated wound 1x1'' on the left leg upper end.
Injury No.6:- Lacerated wound 1x1''x ½ ''on the left leg upper end.
Injury No.7:- Swelling with contusion on left thigh lower part hole.
Injury No.8:- Multiple abrasions on back lower part.''
According to doctor, all the injury were ante-mortem in nature and these may be caused by hard and blunt object.
Cause of death of deceased was due to shock and multiple injuries and pains and the duration of death of deceased was within 24 hours of
postmortem.
Dr.Jain had also conducted the postmortem of deceased Babloo and found following injuries on the body of deceased Babloo:-
''Injury No.1: - Deformity with fracture with fracture of tibia and fibula with punctured wound of size ½ x ½ x 1''
Injury No.2:- Two lacerated wounds of size 1x1x '' size anterior of right leg at 2'' interval.
Injury No.3:- Two contusions of size 3x1'' on anterior of left thigh which swelling.
Injury No.4:- Multiple abrasions on the right of abdomen.
Injury No.5:-Two abrasions 1x ¼ ''on the left of neck.
Injury No.6:- Two lacerated wound of size 2x 1''x bone deep on left end parietal region of scalp.
Injury No.7:- Incised wound 3x½ ''x bone deep on the left parietal area anterior to Injury No.6.
Injury No.8:- Abrasion size 1''x1'' on left of forehead of decomposition .
According to doctor, injury no.7 was caused by hard and sharp edged weapon and the rest of injuries by hard and object. The death of deceased was
within 24 hours of postmortem.
(39) In the light of above postmortem report of deceased as well as medical evidence available on record, the cause of death of both deceased was
homicidal in nature and was due to shock and multiple injuries.
(40) We have heard the learned counsel for both sides and perused materials available on record and also gone through evidence of following material
prosecution witnesses:-
(41) PW3 Smt. Roopa Bai in her evidence deposed that when she came outside, then she saw that accused persons were set her mother-in-law on
fire. At that time, her brother-in-law Vinod was present and her father-in-law Harisingh was coming by doing labour works and her younger brother-
in-law Chhotu also arrived. Her brother-in-law Vinod made a call to police station on a telephone that a quarrel has taken place and mother-in-law set
on fire. In para 5 of her cross- examination she admitted that police did not conduct any inquiry regarding incident and she deposed that her mother-in-
law was in semi-conscious in the hospital and she was not able to speak. In para 6 she deposed that on the date of incident her father-in-law had not
come to village and he came after 8-10 days. This witness in para 10 of her cross-examination admitted that she had made statement to the police and
that statement was not noted by the police getting her signature.
(41) PW4 Sakun Bai in her evidence deposed that she was in her house on the date of incident and accused persons Pooran, Omkar, Pratap and
Chintu were hurling abuses. Her mother-in-law Rambai forbidden accused not to abuse her but on her objection, accused Omkar brought a cane of
kerosene and set her on fire. The accused persons assaulted her family members, Babloo, Ganeshram (both deceased persons) and injured witness
Ramu. This witness in his evidence further stated that her mother-in law Rambai died in Bhopal Hospital after three-four days of the incident. In para
4 of her cross-examination, this witness stated that she was at house at the time of incident and at that time, her father-in-law Harisingh was also
present in the house. This witness in para 8 of her cross-examination admitted that there was an enmity between the accused persons and her family.
This witness in para 14 of her cross-examination also admitted that she had seen deadbolt/corpses of Babloo and Ganeshram.
(42) PW5 Vinod in his evidence deposed that at the time incident, his wife Sakunbai, daughter-in-law Roopabai and younger brother Chhotu were
present at home. Accused Omkar, Pooran and Pratap were hurling abuses him in filthy languages. Accused Omkar and Pooran set her mother on fire
by pouring kerosene. This witness further deposed that he had made a call to police station Kurwai regarding the incident. This witness in his
examination-in-chief admitted that the accused persons had committed murder of his maternal uncle Ganeshram and cousin Babloo.\
(43) PW7 Pahalwan, PW8 Daulat Singh and PW9 Ramesh Gupta did not support prosecution version and turned hostile-. Although PW10 Ramu is
also an injured witness but he did not fully support prosecution case. PW11 Lararam, one of labourers of village and PW12 Mangal Singh, both
witnesses did not support the prosecution version.
(44) PW13 Ramkishore Guatam in his evidence deposed on 19-10-2009, he was posted as SHO in Police Station Kurwai and on the said date, he
reached the spot and recorded Dehati Nalishi and thereafter, on the basis of Dehati Nalishi, he also recorded a merg no.0/2009. He recorded
thereafter the statements of Panch witnesses vide safirna forms Ex.P8 and Et.P10 and prepared spot maps Ex.P9 & Ex.P11. Thereafter, he sent a
requisition form regarding conduction of postmortem of both deceased Ex.P2 and Ex.P4. After completion of all formalities i.e. Naksha Panchnama,
Lash Panchnama of deceased, preparation of seizure memo of all incriminating articles of deadly weapons on 19-10-2009, he recorded the statements
of witnesses. This witness also arrested the accused persons vide arrest memo Ex.P15, Ex.P18, Ex.P20, Ex.P23, Ex.P26, Ex.P29, Ex.32, Ex. P35,
Ex.P36 and Ex.P37. On 25-10-2009 and he recorded statements of witnesses Sakun Bai, Dilip, Vinod and Roopa Bai whose evidence is corroborated
to each other as well as the prosecution evidence. This witness admitted that he prepared Dehati Nalishi on the the basis of information furnished by
Ramu (PW10) and this witness denied that he has falsely prepared a case against the accused persons in collusion with the complainant party.
(45) On behalf of the accused Chintu, Sarswatibai has been examined as DW1. This witness in her deposition stated that her in-laws, her daughter,
sister-in-law and she were beaten by the complainant party on the date of indident. There was a tanker standing on the road and their vehicles was
collided with each other & tanker as well. This witness herself stated that the police had brought the said tanker. This witness admitted that before
incident, Rambai was burnt as a result of which she died. The evidence of witness is not reliable as well as admissible as she is the wife of accused
Chintu who had tried to save his husband by giving false evidence before the Court.
(46) So far as the contention of counsel for appellants that no independent witness as well as Rakesh who is alleged to be brother of Dilip (PW6) and
also an injured witness had sustained injury in the incident, has not been examined by prosecution is concerned, the said contention of the counsel for
the appellants has no force as the Hon'ble Apex Court in the matter of Guru Dutt Pathak vs. State of Uttar Pradesh reported in (2021) 6 SCC116, has
already held that mere non-examination of independent witness and/or in absence of examination of any independent witness, would not be fatal to the
prosecution case. Therefore, the failure to examine any available independent witness is inconsequential. It is the quality of evidence and not the
number of witnesses, that is relevant. In the case at hand, although PW7 Prahlad, PW8 Daulat Singh, PW9 Ramesh Gupta have been turned hostile
before the Court but the material witnesses, namely, PW4-Roopa Bai, PW4-Sakun Bai, PW4 Vinod and PW4 Dilip have specifically supported the
prosecution version and their statements remained unchanged in their cross-examination. As per the medical evidence, the cause of death of both
deceased was homicidal in nature and injuries have been caused by deadly weapons which resulted into multiple injuries over their body. The defence
evidence has not rightly been established in order to support the accused.
(47) So far as the next contention of counsel for the appellants that there is evidence regarding the recovery of seized weapon is concerned, there is
no substance in the said argument advanced by Counsel for accused. As discovery of weapon was made on the basis of memorandum at the behest
of accused at the place where the accused persons had kept. Further, bloodstained and other incriminating articles were collected by police from spot.
Also, the ocular evidence of witnesses is supported by medical evidence. Therefore, it cannot be said that the accused persons have not used any
weapon causing injuries to both the deceased as well as to the injured witness Ramu (PW10). The aforesaid act was done by accused persons in
furtherance of their common object as well as unlawful assembly. The trial Court has rightly convicted accused on the ground of common object,
therefore, no adverse inference can be drawn in this regard.
(48) In view of above discussion, we find that there is no error committed by trial Court in convicting the appellants accused for the aforesaid alleged
offences. Since persecution has rightly established appellants guilty of aforesaid offences, therefore, Second Additional Sessions Judge (Fast Track
Court) Vidisha (MP) in Sessions Trial No.02 of 2010 in Sessions Trial No.02 of 2010 is hereby affirmed. The appeal being devoid of merits, is hereby
dismissed.
(49) Appellants No.3 to 5 are on bail, therefore, they be directed to surrender before the Trial Court immediately and the rest of the appellants are in
jail, therefore, they be directed to serve out the remaining part of jail sentence awarded by trial Court.
Let a copy of this judgment be sent to the concerning jail authorities and also a copy of this judgment along with record be sent to concerning trial
Court for information and compliance.
