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2008 DIGILAW 466 (ALL)

KRISHNA KUMAR v. STATE OF UTTAR PRADESH

2008-02-28

A.MATEEN, M.K.MITTAL

body2008
JUDGMENT Hon’ble M.K. Mittal, J.—This appeal has been preferred by Krishna Kumar son of Binda Charan, Bhikam Lal son of Ganga Charan and Sukhdeo son of Ram Swaroop, all residents of village Roshanabad, P.S. Bangarmau, district Unnao, against the judgment and order dated 5.9.1981 passed by Sri V.C. Jain, the then Sessions Judge, Unnao, in Session Trial No. 66 of 1981 whereby he found the appellants guilty and convicted appellant Krishna Kumar under Sections 302, IPC, 324, IPC and 323/34. IPC and the accused appellants Bhikam Lal and Sukhdeo under Sections 302/34, IPC, 324/34, IPC and 323, IPC and sentenced them to undergo life imprisonment, one year’s R.I. and three months R.I. respectively under the said sections. He further directed that all the sentences of each accused shall run concurrently. 2. Brief facts of the case are that Raja Ram son of Dulare, resident of Roshnabad lodged oral report at police station Bangarmau the distance being 10 miles from the place of occurrence on 1.12.1980 at 9.15 a.m. According to the prosecution case, about one year prior to this incident when the wife of his brother Ram Swaroop had gone to take fodder from the field and was returning after taking fodder, Krishna Kumar in order to outrage her modesty had caught her but in order to avoid disrepute, the report was not lodged. However, Ram Swaroop had scolded Krishna Kumar. Krishna Kumar had also abused Ram Swaroop and had threatened him and in that connection a report was lodged at the police station. Later in the month of Jeth, the accused Krishna Kumar and others had also cut the ‘Khinni’ tree of the informant and had taken its wood etc. but because of fear, no report was lodged. Since then Krishna Kumar and others had been nurturing enmity with the informant. He had a boring about one and half furlong towards south of the village and in order to irrigate the field had taken the engine in a bullock cart one day prior to the incident. In order to watch the engine, the informant alongwith his cousin Mansha Ram and Nanhey Lal started sleeping in the field. On the night of incident i.e. 30.11/1.12.1980 the informant, Mansha Ram and Nanhey Lal were sleeping near the bullock cart after spreading ‘Paira’ and a burning lantern was hanging on the bullock cart. In order to watch the engine, the informant alongwith his cousin Mansha Ram and Nanhey Lal started sleeping in the field. On the night of incident i.e. 30.11/1.12.1980 the informant, Mansha Ram and Nanhey Lal were sleeping near the bullock cart after spreading ‘Paira’ and a burning lantern was hanging on the bullock cart. At about 11.00 p.m., the accused Krishna Kumar, Bhikam Lal and Sukhdeo came there. Sukhdeo and Bhikam had lathi and they pressed it on their neck as a result of which they woke up and raised alarm. Krishna Kumar who was having knife gave knife blows to Mansha Ram and when the informant tried to apprehend them, Krishna Kumar gave knife blow to the informant also. On the alarm raised by them, Shiv Lal, Beche Lal and other villagers, flashing their torches, came. They challenged them and then the accused ran away towards south. After some time, Mansha Ram succumbed to the injuries received by him. The informant could not go to lodge the report in the night due to fear. In the morning, he alongwith Nanhey Lal came to the police station and lodged report. 3. Constable Nathoo Singh P.W.-7 was posted as constable clerk at the police station Bangarmau on 1.12.1980. He prepared the chick report on the dictation as given by Raja Ram. He also took the thumb impression of Raja Ram after completing the report. The witness proved report Ex.Ka 1. The case was registered in the G.D. at rapat No. 15 at 9.15 a.m. The witness proved the copy of the G.D. Ex.Ka 6. He sent special report through constable Zaheer Alam to the officers vide G.D. report No. 19 at 12.10 p.m. He proved copy of the G.D. Ex.Ka 7. He also prepared Majroobi Chhithis of injured Raja Ram and Nanhey Lal and sent them for medical examination. 4. S.I. Onkar Nath Shukla P.W.-9 was posted at P.S. Bangarmau on 1.12.1980. The case was registered in his presence. He also signed the chick report Ex.Ka- 1. He started investigation and interrogated Raja Ram and Nanhey Lal at the police station and sent them for medical examination. At about 12.30 p.m., he reached the place of occurrence and after appointing Panchas prepared the inquest report Ex.Ka 10. He also prepared Naksha Lash Ex.Ka 11 Challan Lash Ex.Ka 12 and letter to Chief Medical Officer Ex.Ka 13. He started investigation and interrogated Raja Ram and Nanhey Lal at the police station and sent them for medical examination. At about 12.30 p.m., he reached the place of occurrence and after appointing Panchas prepared the inquest report Ex.Ka 10. He also prepared Naksha Lash Ex.Ka 11 Challan Lash Ex.Ka 12 and letter to Chief Medical Officer Ex.Ka 13. The dead body was sealed and was sent for post-mortem examination. He took blood stained Angochha (material Ext. 1) from under the head of dead body and sealed it and prepared its fard Ex.Ka 14. He also took blood stained earth (material Ex.-2) and plain earth (material Ex.-3) from the place of occurrence and sealed them in separate containers and prepared fard Ex.Ka 15. He also found lathi (material Ex. 4) at the place of occurrence and prepared fard Ex.Ka-16. Lantern was taken in custody and was given in the supurdgi of the informant. It was in working condition. He prepared fard Ex.Ka 17. He also interrogated the witnesses of the inquest report as well as eye-witness Shiv Lal. He inspected the place of occurrence and prepared site plan Ex.Ka 18..He also interrogated the witness Bechy Lal. He examined the torches of Beche Lal and Shiv Kumar which were in working condition. He gave them in their supurdgi and prepared fard Ex.Ka 2. He interrogated Ram Swaroop and Smt. Shanti on 2.12.1980. Thereafter the investigation was taken over by station incharge Ram Raj Singh. 5. Dr. M.R. Ahmad P.W.-5 was posted as Medical Officer at PHC Bangarmau district Unnao on 1.12.1980. He examined Nanhey Lal, who was brought by constable Suresh Pratap Singh, at 1.30 p.m. and found the following injury on his person : 1. Abraison 1 cm. x 1.5 cm. on the posterior aspect of the distal joint of inter phallygial joint of the right thumb. Slight pus was seen at the time of examination. Scar was soft. It was about one day old. The injury was simple and about one day old and was caused by friction against hard object. He proved injury report Ex.Ka-3. 6. He also examined Raja Ram brought by constable Suresh Pratap Singh, at 1.40 p.m. and found the following injuries on his person : 1. Incised wound 1.5 cm. x .5 cm. x .5 cm. on the upper lip left side. Injury was glude by blood clot vertically oblique position. He proved injury report Ex.Ka-3. 6. He also examined Raja Ram brought by constable Suresh Pratap Singh, at 1.40 p.m. and found the following injuries on his person : 1. Incised wound 1.5 cm. x .5 cm. x .5 cm. on the upper lip left side. Injury was glude by blood clot vertically oblique position. Upper end was .5 cm. below and lateral to the left alac of the nose. 2. Contusion 5 cm. x 2 cm on the ramus of the mandible left side, 4 cm. left and lateral to the mentum. Reddish black in colour. Duration was about one day and the injuries were simple in nature. Injury No. 1 was caused by some sharp edged weapon, whereas the injury No. 2 was caused by blunt object. He prepared injury report Ex.Ka-4. According to the medical officer, injury No. 1 of Raja Ram could have been caused by knife and injury No. 2 by pressing of lathi. He also stated that the injuries could have been caused to both the injured on 30.11.1980 at about 11.00 p.m. 7. Dr. J.N. Bajpai P.W.-6 was posted as radiologist in district hospital, Unnao on 2.12.1980. The dead body of Mansha Ram son of Gokul was brought by constable Chandra Ketu in sealed condition and was identified by him. Dr. Bajpai conducted the post-mortem on the dead body at 3.45 p.m. About 1.1/2-2 days had passed since the death. The dead body was of average built and rigour mortis was present in lower extremity. The decomposition had not started. He found the following ante mortem injuries : 1. A stab wound 1" x 1/3" x chest cavity deep on the right side of chest 1" outer to the right sterno clavicular joint. Margins were clean cut and inverted. 2. Incised wound 1/2" x 1/5" x muscle deep on the right aide of back 1" away from the middle of spine. 8. On internal examination he found that pleura was punctured. Chest cavity contained, one litre of fluid and clotted blood. Right lung was punctured. Heart was empty. Stomach contained 200 gms of digested food material. According to doctor death was caused due to shock and haemorrhage as a result of injury. The injuries could have been caused by knife. The injuries were sufficient to cause death in normal course. He prepared the post mortem report Ex.Ka 5. 9. Right lung was punctured. Heart was empty. Stomach contained 200 gms of digested food material. According to doctor death was caused due to shock and haemorrhage as a result of injury. The injuries could have been caused by knife. The injuries were sufficient to cause death in normal course. He prepared the post mortem report Ex.Ka 5. 9. Head constable Anirudha Prasad Pandey was posted as Moharrir Malkhana-Sadar on 20.1.1981. Constable Zaheer Ahmad of police station Bangarmau deposited sealed bundles in Sadar Malkhana at Sl. No. 100/1/81. The same day the sealed bundles were sent for chemical examination to Agra through C.M.O. According to Anirudha Prasad Pandey as long as the sealed bundles remained in the Sadar Malkhana, their seals remained intact and no one was allowed to touch the same. He has deposed these facts on affidavit Ex.Ka 9. 10. Inspector Raj Singh P.W.-8 was posted as in charge Kotwali Bangarmau on 2.12.1980. He took up investigation from Sub Inspector O.N. Shukla on 2.12.1980. He talked to the witnesses and perused the case diary. He interrogated the accused persons in jail on 6.12.1980 and after completing the investigation submitted charge-sheet Ex. Ka-8 against the accused persons on 13.12.1980. 11. The accused were committed to the Court of Sessions by Chief Judicial Magistrate, Unnao by order dated 20.1.1981. The accused Krishna Kumar was charged under Sections 302/34, 323/34 and 324, IPC and the other two accused were charged under Sections 302/34, 324/34 and 323, IPC by Sessions Judge, Unnao on 19.3.1981. Accused pleaded not guilty and claimed to be tried. 12. In support of its case, the prosecution led evidence and in all examined ten witnesses. Besides the above noted formal witnesses, it also examined Raja Ram P.W.-1, Nanhey Lal P.W.-2 and Shiv Lal P.W.-3 as the witnesses of fact and occurrence. They have stated the prosecution case on oath. Ram Swaroop P.W.-4 has been examined to state about the incident which was committed by the appellant Krishna Kumar with his wife Smt. Shanti about one year prior to the present incident. P.W.-10 constable Ram Dev Trivedi has proved the report lodged by Ram Swaroop son of Subedar on 10.9.1979 against Krishna Kumar, at police station Bangarmau which was registered under Sections 504 and 506, IPC as non-cognizable case. The witness has proved the copy of the report Ex.Ka-19. 13. P.W.-10 constable Ram Dev Trivedi has proved the report lodged by Ram Swaroop son of Subedar on 10.9.1979 against Krishna Kumar, at police station Bangarmau which was registered under Sections 504 and 506, IPC as non-cognizable case. The witness has proved the copy of the report Ex.Ka-19. 13. The accused were examined under Section 313, Cr.P.C. They denied the prosecution case and contended that they have been falsely implicated in this case. Krishna Kumar stated that he and Raja Ram had pumping set in one ‘Tal’ (pond) and there was a dispute on that account. Bhikam Lal and Sukhdeo have stated that the witnesses have deposed on account of enmity and party bandi. The accused Krishna Kumar admitted that Bhikam Lal is his real brother and Sukhdeo is Bhikam’s Sadoo. Bhikam Lal has said that he and Krishna Kumar are cousins and Sukhdeo is his Sadoo. Bhikam Lal has also admitted that Raja Ram had a boring and two days prior to the incident Mansha Ram and others had taken the engine for irrigating their fields and were staying in the night for keeping a watch on the engine. A question was also put to the accused persons when they were being examined under Section 313, Cr.P.C. whether they wanted to give any defence evidence and they replied in negative. The accused did not adduce any oral or documentary evidence in their defence. 14. The learned trial Court after considering the evidence came to the conclusion that the prosecution witnesses were reliable and the medical evidence and the first information report also corroborated the prosecution case. He has further held that the prosecution was able to establish that the accused had committed the murder of Mansha Ram while acting in furtherance of the common intention and there was participation of all the three accused. He further held that the prosecution had been able to establish the case against the accused persons beyond reasonable doubt. Consequently he found the accused guilty and convicted and sentenced them as aforesaid. Feeling aggrieved, this appeal has been preferred. 15. We have heard the learned Counsel Sri J.N. Chaudhry for appellant Krishna Kumar, Sri O.P. Srivastava for appellant Bhikam Lal and Sri K.K. Srivastava for appellant Sukhdeo and Sri Umesh Verma, learned Additional Government Advocate and have perused the trial Court record. Feeling aggrieved, this appeal has been preferred. 15. We have heard the learned Counsel Sri J.N. Chaudhry for appellant Krishna Kumar, Sri O.P. Srivastava for appellant Bhikam Lal and Sri K.K. Srivastava for appellant Sukhdeo and Sri Umesh Verma, learned Additional Government Advocate and have perused the trial Court record. Learned Counsel for appellants have contended that the learned trial Court has not properly appreciated the evidence on record and has erred in convicting the appellants. According to them, the prosecution took a motive for the accused for committing this crime but the same could not be proved and it cuts at the root of the prosecution case. According to them, the accused had no motive against the informant or against Mansha Ram, the deceased and they have been falsely roped in. It has further been argued by them that it was a dark night and the assailants could not have been seen by the informant and the other witnesses as alleged by them and that no blood was found under the cart where the deceased and the injured witnesses were sleeping. They also contended that the injuries as alleged could not have been caused in the manner as alleged as there was no injury on the neck of any of the three persons as alleged and that even knife injuries including the injury on the back of the deceased could not have been caused in the manner as alleged. On this basis the learned Counsel for appellants have contended that it appears that the deceased was attacked by some unknown persons at some other place and the body was brought and kept in the field. They also contended that the FIR is ante timed and there is mis-joinder of the charge as against Krishna Kumar and compliance of Section 233, Cr.P.C. was not made and the accused were not given opportunity for leading their evidence in defence and it has prejudiced them and that the accused having been wrongly convicted are entitled to acquittal. 16. As against it, the learned Counsel for State has contended that the accused had animus against the informant as well his cousin Mansha Ram as the accused Krishna Kumar had tried to outrage the modesty of the wife of Ram Swaroop, their cousin and when they made a complaint, Krishna Kumar had abused them and had also threatened them. 16. As against it, the learned Counsel for State has contended that the accused had animus against the informant as well his cousin Mansha Ram as the accused Krishna Kumar had tried to outrage the modesty of the wife of Ram Swaroop, their cousin and when they made a complaint, Krishna Kumar had abused them and had also threatened them. The accused Krishna Kumar had also cut Khinni tree of the informant. He has further contended that the motive as taken by the prosecution has been established and moreover when the occular testimony is available, the motive is not very relevant. The learned Counsel for the State has further contended that although it was a dark night but the witnesses have made positive statements about the burning of lantern as well as the use of torches and there was sufficient light to identify the assailants. According to him the incident took place at the time and place and in the manner as alleged by the prosecution witnesses. He has further contended that the P.W.-1 and P.W.-2 are injured witnesses and there is no reason to disbelieve their presence. The witnesses are reliable and there is nothing in their cross-examination to show that they are not speaking the truth. He has further contended that the blood was found at the place where the dead body was found which was quite close to the bullock cart. He has also contended that there is no mis-joinder of charge and in any case it is not an illegality and is curable in view of Section 464, Cr.P.C. He further contended that necessary compliance of provisions of Sections 232-233, Cr.P.C. has been made and the accused have not been put to any prejudice and the accused have been rightly convicted and the appeal being devoid of merits, is liable to be dismissed. 17. The witnesses Raja Ram, Nanhey Lal and Shiv Lal have stated that Mansha Ram was given knife blows as a result of which he received injuries and died at the spot. According to Raja Ram, the death was caused within 1-1.1/2 minutes of receiving the injuries. Nanhey Lal has also made a similar statement. The medical evidence also shows that Mansha Ram died as a result of ante mortem injuries which were sufficient in ordinary course to cause death and therefore, it shows that it is a case of homicide. 18. According to Raja Ram, the death was caused within 1-1.1/2 minutes of receiving the injuries. Nanhey Lal has also made a similar statement. The medical evidence also shows that Mansha Ram died as a result of ante mortem injuries which were sufficient in ordinary course to cause death and therefore, it shows that it is a case of homicide. 18. The prosecution has attributed a motive to the accused persons. According to prosecution case, the accused Krishna Kumar and Bhikam Lal are cousin brothers and Sukhdev is ‘Sadoo’ of Bhikam Lal. They all live in the same village where the informant and the witnesses live. The prosecution case is that accused Krishna Kumar had tried to molest Smt. Shanti, wife of Ram Swaroop P.W.-4 about one year prior to this incident when she was returning with fodder from the field. In this connection Ram Swaroop, Raja Ram, Nanhey Lal and Mansha Ram had gone to the house of Krishna Kumar to reprimand him but he had abused them and threatened them. According to Ram Swaroop (P.W.-4) a report was lodged in this connection but in that report the fact that the accused Krishna Kumar teased his wife was not mentioned in order to avoid disrepute to the family. In the report (Ex.Ka-19) lodged by Ram Swaroop it has been mentioned that when the wife of Ram Swaroop was bringing the fodder bundle, Krishna Kumar pulled down the bundle and when Ram Swaroop went to reprimand him, he was abused and threatened with life. In cross-examination he has stated that when they went to reprimand, it was about 11.00 a.m. and Krishna Kumar did not beat them but only abused and threatened them. He denied the suggestion that this incident has been narrated only to give colour to this case. He also denied the suggestion that there was any dispute with Krishna Kumar regarding the pond water. However no suggestion has been given to Ram Swaroop that no incident as alleged took place with his wife. 19. Raja Ram P.W.-1 has also stated about the incident that took place with the wife of Ram Swaroop and that Krishna Kumar pulled down the bundle of fodder and also tried to molest her. But this incident was not reported because it involved family repute. 19. Raja Ram P.W.-1 has also stated about the incident that took place with the wife of Ram Swaroop and that Krishna Kumar pulled down the bundle of fodder and also tried to molest her. But this incident was not reported because it involved family repute. P.W.-1 has also stated that he, Ram Swaroop, Mansha Ram and Nanhey Lal went to reprimand Krishna Kumar who abused them and threatened them. This witness has also stated that about 6-7 months prior to the incident Krishna Kumar had cut his Khinni tree forcibly and had taken the wood to his house. At that time Bhikam Lal and Sukhdeo assisted him in cutting the tree. However, he did not lodge any report regarding that tree but had complained to Panchayat which scolded Krishna Kumar. This witness has also stated that from the time the incident took place with his Bhabhi, the accused nurtured enmity with his family. In cross-examination he has stated that he did not mention the fact of teasing his Bhabhi in the report regarding murder of Mansha Ram as he did not think it necessary. At the time of reprimand exchange of words was not only between Ram Swaroop and Krishan Kumar but the exchange of words was also between him, Mansha Ram, Nanhey Lal and Krishan Kumar. He did not mention this fact in the report and also did not inform the I.O. but had told in the Panchayat. Ram Swaroop had lodged a report in this connection. Regarding Khinni tree this witness has stated in his cross-examination that he had told this fact to the I.O. but had not disclosed the names of Bhikam Lal and Sukhdeo as the persons who assisted Krishna Kumar in cutting the tree. A suggestion was given to him that there was dispute with Krishna Kumar regarding pond water but he denied the same. No details regarding the dispute over pond water were suggested to him. Nanhey Lal P.W.-2 has also stated about the incident committed by Krishna Kumar with the wife of Ram Swaroop. He had also gone with others to reprimand when Krishna Kumar had abused them and threatened them. He also stated about cutting of the Khinni tree by the accused persons. However no report regarding that was made. Nanhey Lal P.W.-2 has also stated about the incident committed by Krishna Kumar with the wife of Ram Swaroop. He had also gone with others to reprimand when Krishna Kumar had abused them and threatened them. He also stated about cutting of the Khinni tree by the accused persons. However no report regarding that was made. He has denied the suggestion that he did not go with Mansha Ram and Raja Ram to reprimand Krishna Kumar in that matter. He also denied the suggestion that there was any quarrel between them and Krishna Kumar regarding the irrigation from the pond. The statements of these witnesses coupled with the FIR Ex.Ka 19 show that there was some incident between Krishna Kumar and Ram Swaroop and the informant and others and the accused Krishna Kumar had not only abused but had also threatened informant and others. 20. It is settled position of law that if occular evidence is available, the motive looses importance. [Refer-Santosh alias Santukarao v. State of Maharashtra, JT 2007(7) SC 223]. In the instant case the prosecution has taken a motive for the accused to act and has also given evidence to show that the accused had the motive to act against the informant and others. The accused Bhikam and Sukhdeo are closely related to Krishna Kumar and in the circumstances, it cannot be said that the accused had no motive to act and the contention of the learned Counsel for the appellants that prosecution has failed to establish the motive is not tenable. 21. Regarding the actual incident the witness Raja Ram P.W.-1 has stated that his field was about 1.1/2 furlong towards the south of the village and he and Nanhey Lal had engine in partnership. This engine was used to irrigate their fields. They had taken the engine in the bullock cart one day prior to this incident. The fields were irrigated in the day time and he, Nanhey Lal and Mansha Ram stayed in the night in order to watch the engine. It was about 11 p.m. when they were sleeping on Pual. Mansha Ram was between him and Nanhey Lal. They were under the back portion of the bullock cart on the ground and their heads were outside the bullock cart. A burning lantern was also hanging on the bullock cart. It was about 11 p.m. when they were sleeping on Pual. Mansha Ram was between him and Nanhey Lal. They were under the back portion of the bullock cart on the ground and their heads were outside the bullock cart. A burning lantern was also hanging on the bullock cart. The accused Bhikam Lal, Krishna Kumar and Sukhdeo came and Bhikam Lal and Sukhdeo pressed their necks with the lathi. They woke up. They tried to get up but they could not. At that time Krishna Kumar caused knife blow to Mansha Ram which hit him under his neck. When he tried to apprehend Krishna Kumar, he gave a knife blow to him also and the blow hit him under his nose on the cheek. Krishna Kumar gave one more blow to Mansha Ram which landed on his back. On their alarm, Shiv Lal and Bechey Lal came and challenged the accused who ran away. Besides him, Nanhey Lal also received injuries. In cross examination, he has stated that the bullock cart was standing east west and they were lying on Pual and had covered themselves with one quilt. He was towards north of Mansha Ram. When he woke up a lathi was being pressed on their necks. Sukhdeo and Bhikam Lal were pressing both ends of lathi with hands and they were not standing on lathi. First two knife blows were given to Mansha Ram and the third was given to him. After the first blow, blood came out from the wound of Mansha Ram but he moved. No blood came on Puyal. Mansha Ram was sleeping with face up ward and he was sleeping with a right side (Dahini Karvat). After receiving injuries, Mansha Ram being restless crawled from Pual on the ground slightly towards south and at that time no blood came on Pual. At that time, quilt was not over him. He died at a distance of about one hand from the cart. No blood fell under the bullock cart but there was blood where Mansha Ram died. When he (Raja Ram) was given the knife blow he had stood up. Shiv Lal and Beche Lal came before the accused ran away and they challenged the accused from a distance of 6-7 steps. The accused had left the lathi with which their necks were pressed. When he (Raja Ram) was given the knife blow he had stood up. Shiv Lal and Beche Lal came before the accused ran away and they challenged the accused from a distance of 6-7 steps. The accused had left the lathi with which their necks were pressed. He denied the suggestion that there was no light of lantern or torch at the time of the incident. He also denied the suggestion that they were not attacked by the accused persons and some other Badmash attacked them. The witness has been cross-examined at length and there is nothing in his statement to show that he is not reliable or that he is not speaking the truth. Even his presence has not been denied. 22. Nanhey Lal has corroborated the testimony of Raja Ram and has stated regarding the incident that it was about 11.00 p.m. and he, Raja Ram and Mansha Ram were at the field. They had taken boring engine for irrigation purposes and were sleeping under the bullock cart and a burning lantern was hanging on the cart. At that time, Krishna Kumar, Sukhdeo and Bhikam Lal came there and Bhikam Lal and Sukhdeo pressed a lathi on their necks and they woke up. Krishan Kumar caused knife blow to Mansha Ram and also attacked Raja Ram with knife and then again gave a blow of knife to Mansha Ram. Mansha Ram and Raja Ram received knife injuries. He received lathi injury. On their alarm, Shiv Lal and Bechey Lal came there and when they all challenged them, accused went away. Mansha Ram died on the spot. He had a field near the field in which boring engine was placed and the engine belonged to him and Raja Ram. In cross-examination, this witness has stated that the accused had pressed the lathi with their hands and did not stand on the ends of the lathi. He raised alarm as soon as he woke up and saw that Krishan Kumar gave knife blow to Mansha Ram and at that time Mansha Ram was towards his north. Blood came out after the blow was received by Mansha Ram but no blood fell on Pual. Mansha Ram did not die at the place where he was sleeping but at a distance of about 3-3.1/2 hands from the cart and blood also fell at that place. Blood came out after the blow was received by Mansha Ram but no blood fell on Pual. Mansha Ram did not die at the place where he was sleeping but at a distance of about 3-3.1/2 hands from the cart and blood also fell at that place. His (Nanhey Lal’s) blood did not fall on the ground as he had injury on his fingers. By the time, he came out from under the cart. Mansha Ram was given the second knife blow by the accused. The lantern was hanging in the back portion of the cart. It was burning in a normal way. He denied the suggestion that the incident did not take place in the manner as stated by him and that Mansha Ram and Raja Ram were beaten in some other way. He denied the suggestion that he was not present and fabricated his injury. 23. Shiv Lal P.W.-3 has stated on oath that his field was at a distance of about 150 paces from the field in which there was boring. It was about 11.00 p.m. and he was at the Machan in his field and was keeping watch of his Arhar crop. He heard noise coming from the field of Raja Ram and he came running with lathi and battery and when he reached near the field of Raja Ram, Bechhey Lal also joined him who came from the side of his house. He was also having battery and lathi. A lantern was burning there. He saw that accused Bhikam Lal and Sukhdeo were pressing Raja Ram, Nanhey Lal and Mansha Ram with lathi and Krishna Kumar had knife in his hand who gave knife blows to Mansha Ram and Raja Ram and by the time they reached near them, the accused started running. He saw that Mansha Ram had died. He saw injuries on the person of Raja Ram and Nanhey Lal also. In cross-examination he has stated that after hearing the noise in his field he had not shouted but had started running towards the field of Raja Ram and when he was at a distance of 50-60 paces, he saw the incident for the first time. At that time he saw Raja Ram, Mansha Ram and Nanhey Lal were lying under the bullock cart and Bhikam Lal and Sukhdeo were pressing their necks with lathi. He also saw Krishan Kumar causing knife blows. At that time he saw Raja Ram, Mansha Ram and Nanhey Lal were lying under the bullock cart and Bhikam Lal and Sukhdeo were pressing their necks with lathi. He also saw Krishan Kumar causing knife blows. The accused were chased for a short distance but then they returned. By the time the accused were there, besides him and Bechey Lal, no other person came from the village. He denied the suggestion that he did not see any incident. 24. The statements of these witnesses show that they are consistent in their deposition regarding the actual incident and that nothing has come in their statements to discard their testimony. The presence of Raja Ram at the time of incident has not been disputed, as no suggestion has been given to him in this regard. The other two witnesses have specifically denied the suggestion that they did not see any incident. Although these three witnesses are close relation as they are cousins, a careful scrutiny of their statements shows that they are reliable witnesses. The two witnesses Raja Ram and Nanhey Lal are also injured witnesses and there is no reason to doubt their presence at the place of occurrence. In the circumstances of the case their presence is quite natural. As far as the presence of Raja Ram, Nanhey Lal and Mansha Ram in connection with keeping a watch on the engine in their field is concerned, the same is admitted by the accused Bhikam Lal. In reply to question No. 7 under Section 313, Cr.P.C. Bhikam Lal gave a positive reply that it is correct that Raja Ram had boring in his field at a distance of about 1.1/2 furlongs from the field and had taken engine in the bullock cart and had irrigated the field and they were staying there in the night to keep a watch on the engine. Although the accused Krishna Kumar and Sukhdeo expressed their ignorance regarding this fact but the fact, remains that these persons were in the field as has been stated by them and has also been admitted by one of the accused. 25. Although the accused Krishna Kumar and Sukhdeo expressed their ignorance regarding this fact but the fact, remains that these persons were in the field as has been stated by them and has also been admitted by one of the accused. 25. The contention of the learned Counsel for the appellants is that the incident did not take place in the manner as alleged by the prosecution as no injury was found on the necks of these persons which were pressed by the accused Bhikam Lal and Sukhdeo with lathi. Although no injury was found on the neck of the deceased as well as Raja Ram and Nanhey Lal but on this ground it cannot be said that the incident did not take place in the manner as alleged by the witnesses. The prosecution witnesses have made positive statement that the accused Bhikam Lal and Sukhdeo had pressed the lathi on their necks. These three persons were sleeping on Pual and Mansha Ram was between them. On the northern side of Mansha Ram was Raja Ram and on his southern side was Nanhey Lal. There is injury on the mandible of Raja Ram. There is also abrasion on the distal joint of the right thumb of Nanhey Lal. According to the witnesses, as soon as the accused pressed the lathi, they woke up and raised alarm. It is very natural that these persons must have also tried to get themselves extricated during the incident and in that event the movement of these persons was very natural. It appears that the lathi shifted from the neck of Raja Ram to his mandible position and he received injury because of the pressure applied by the accused on that end. Nanhey Lal also appears to have tried to remove the lathi from his neck and in that process he received injury on his thumb joint. In this connection, it will be relevant to refer the statement of the medical officer P.W. 5 Dr. Ahmad who has stated that if lathi was pressed with force on the mandible portion, injury could have been caused particularly if the injured tried to get up. He also stated that the injury of Nanhey Lal could have been caused with friction of lathi. Ahmad who has stated that if lathi was pressed with force on the mandible portion, injury could have been caused particularly if the injured tried to get up. He also stated that the injury of Nanhey Lal could have been caused with friction of lathi. The injuries of these persons could have been caused on 30.11.1980 at 11.00 p.m. In the circumstance, if the injuries were not received on the necks of these two persons, it is not material. As far as Mansha Ram is concerned, he was in between the two and it appears that his neck was at the lower level and the lathi did not touch/press it. Doctor Ahmad has specifically stated that if Raja Ram was lying and the mandible portion was exposed and two other persons were also lying and if one lathi was put on their necks and was pressed, the injury could have been caused if all the three were on the same level. This is a correct statement. Raja Ram was on his side and the lathi was on his mandible and therefore, it must have been at a higher level than the neck of Mansha Ram and therefore, no pressure was exerted on the neck of Mansha Ram and that is why there was no lathi injury on the neck of Mansha Ram. Therefore, the absence of injury on neck is not material and does not make the prosecution case doubtful. 26. The learned Counsel for appellants have further contended that the knife injuries as alleged could not have been caused to Mansha Ram also. According to learned Counsel it has come in the evidence that Mansha Ram was lying on his back when he was attacked and also when he died. In the circumstance, the learned Counsel contended that the knife injury on the back of Mansha Ram could not have been caused. Sri O.P. Srivastava, learned Counsel for the appellant also contended that even the injury No. 1 as allegedly caused to Mansha Ram could not have been caused. According to the medical evidence, the right lung of Mansha Ram was punctured. The seat of injury has been shown as 1" outer to right sterno clavicular joint. Sri O.P. Srivastava, learned Counsel for the appellant also contended that even the injury No. 1 as allegedly caused to Mansha Ram could not have been caused. According to the medical evidence, the right lung of Mansha Ram was punctured. The seat of injury has been shown as 1" outer to right sterno clavicular joint. The learned Counsel for the appellant further contended that the lung is not at this place and therefore, this injury could not have been caused puncturing the lung and it appears that Mansha Ram was attacked in some other manner. But the contention of the learned Counsel for appellant is un-tenable. The lungs are conical in shape and the apex portion of the lungs extends 4 cm. above the clavicular joint. Practically the lungs start from the shoulder. In the circumstance, the seat of the injury No. 1 shows that, there was lung underneath this injury and that is why when the knife blow was given, it entered chest cavity deep, puncturing the right lung. It is important to note that no suggestion has been given to Dr. Bajpai who performed the post mortem examination that the right lung of Mansha Ram was not punctured and now the contrary plea is not acceptable. It is correct that the injury No. 2 of the deceased was on the right side of back 1" away from the middle of spine and the witnesses have stated that the deceased was lying on his back when he was hit as well as when he died. The witness Raja Ram has also stated that after the first blow was given on neck of Mansha Ram, he became very restless and moved towards south from the place he was sleeping. It appears that after the first attack he tried to get up and at that time the accused gave second blow on his back, but the lung being punctured, Mansha Ram could do nothing except to become restless and crawl a bit (on back), where he died soon after receiving the injury. According to witness Raja Ram, Mansha Ram died after about 1-1.1/2 minutes of the attack. The learned Counsel for the appellants has also contended that injury No. 1 of Mansha Ram which is a stab wound could not “ have been caused by knife as knife has only one sharp edge. According to witness Raja Ram, Mansha Ram died after about 1-1.1/2 minutes of the attack. The learned Counsel for the appellants has also contended that injury No. 1 of Mansha Ram which is a stab wound could not “ have been caused by knife as knife has only one sharp edge. But considering the size of the injury this contention cannot be accepted. Dr. Bajpai P.W.-6 has stated in cross-examination that it is not necessary that for causing this injury both the edges of the weapon should be sharp. Therefore, the injuries as received by Mansha Ram are well explained by the witnesses and there is nothing to show that these injuries could not have been caused in the manner as alleged. 27. The learned Counsel for the appellants have also contended that according to prosecution case a blood stained Angochha was found under the head of the deceased and no witness has stated as to how it came there. According to learned Counsel it appears that the injured Mansha Ram was attacked else where and the dead body was brought at the place where it was found and Angoccha was put by some one under his head. He has also contended that since no blood was found on the pual, it also shows that the incident did not take place at the place as alleged by the prosecution. But this contention of the learned Counsel is not tenable. It is true that no blood was found on pual. But it has come in the statements of the witnesses that three persons including the deceased were sleeping on the pual with their heads away from the bullock cart and feet towards the bullock cart. The pual was spread in small area measuring about three hands x three hands. When the accused pressed the lathi, Raja Ram and Nanhey Lal managed to get up, as according to Raja Ram when he tried to intervene and when the accused Krishan Kumar gave him a knife blow, he was in standing position. The accused Krishan Kumar had given knife blow to Mansha Ram and he could only crawl a bit and in that attempt he came away from the pual. The injury of Raja Ram was on his cheek and was simple and it must not have bleeded profusely. The accused Krishan Kumar had given knife blow to Mansha Ram and he could only crawl a bit and in that attempt he came away from the pual. The injury of Raja Ram was on his cheek and was simple and it must not have bleeded profusely. In the circumstance there was no occasion for blood to fall either from the injury of Raja Ram or Mansha Ram on the pual. The Angoccha that was found under the head, had the blood stains and it must have received the blood from the injury No. 1 of Mansha Ram which was outer to right sterno clavicular joint. The position of this seat of injury shows that the blood must have trickled down on the Angochha that was under the head. No question has been put to any witness regarding this Angochha and it appears that Mansha Ram might have been carrying the Angochha with him and when he moved from pual it slipped and came under his head and the blood came on it. In any case, simply on account that blood stained Angoccha was found under the head of deceased, it cannot be said that the incident did not take place at the place as alleged by the prosecution. Therefore, this plea as raised by the learned Counsel for the appellants does not create any dent in the prosecution case. 28. The learned Counsel for the appellants have contended that it was a dark night as stated by the witnesses and they had no occasion to see and identify the assailants. But it has specifically come in the evidence of the witnesses that burning lantern was hanging on the bullock cart in the rear portion and the witnesses who came had torches with them and they had flashed them. Although a suggestion was put to Raja Ram regarding the lantern but he denied that it was not there. The Investigating Officer has stated that he had examined the lantern as well as the torches which were produced by the witnesses and they were in working condition. This statement of the investigating officer has not been challenged. Moreover the three persons were in the field and the object of stay was to have a watch of their pumping set or engine and in the circumstance it was very natural for them to have a burning lantern. This statement of the investigating officer has not been challenged. Moreover the three persons were in the field and the object of stay was to have a watch of their pumping set or engine and in the circumstance it was very natural for them to have a burning lantern. Since there was open field, the bullock cart was the best place to hang the lantern. The fact that there was bullock cart is not disputed. Again, the accused persons and the witnesses are the residents of the same village and were familiar to each other from prior to the incident. In this eventuality it cannot be said that the witnesses could not see or identify the assailants. 29. The learned Counsel for the appellants have further contended that prosecution did not examine any independent witness although it has come in the evidence that villagers had also reached. It is mentioned in the FIR that the villagers had also come on hearing the alarm raised by the witnesses and they had challenged the accused persons. The witnesses also told the investigating officer that the villagers had come and had challenged the accused persons. Raja Ram has stated that the villagers had not come with Shiv Lal and Beche Lal. They came later on. He did not dictate in the report about the coming of the villagers. But if it is there, he could not explain. He also could not explain as to how the investigating officer noted this fact. Nanhey Lal has stated in cross-examination that he had told the investigating officer that several villagers had come and had challenged the accused and then they ran away and it was his correct statement. He also named that Babu and Chhedi had also come alongwith Shiv Lal and Bechey Lal. But according to Shiv Lal when the incident was taking place, he and Bechey Lal had reached and none from the village had come. But in any case the non-examination of these two persons or any other villager is not material as the witnesses as examined by the prosecution are wholly reliable and there is no reason to discard their testimony. In a criminal trial what is important is the quality of the testimony given by the witnesses and not the quantity of the witnesses. In a criminal trial what is important is the quality of the testimony given by the witnesses and not the quantity of the witnesses. A perusal of the statements of the witnesses shows that there is no material contradiction in their testimony and they are consistent on material details. 30. The learned Counsel for the appellants have contended that the first information report is ante timed and that it was written after due deliberation and consultation and after the investigating officer had visited the place of occurrence. In support of this contention, the learned Counsel has pointed out that the investigating officer did not send the copy of the FIR alongwith the dead body and that the name of the accused Krishan Kumar was not mentioned in the inquest report as one of the assailants, although Shiv Lal who is also a witness of inquest as well as eye-witness had told the police personnel at the time of the inquest that the death was caused by the knife blow given by Krishan Kumar accused. The learned Counsel cited the case of Jagdish Murav v. State of U.P. and others, (2007) 2 SCC (Cri) 234. In this case of Jagdish Murav the Hon’ble Apex Court referred para 12 of the judgment of Mehraj Singh v. State of U.P., (1994) SCC (Cri) 1391. In the judgment of Mehraj Singh it was held in para 12 that, “the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapon, if any, used as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case by the local Magistrate”. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case by the local Magistrate”. It has been further held that “the second external check equally important is the sending of the copy of the FIR alongwith the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174, Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberation and consultation and was then ante-timed to give it the colour of a promptly lodged FIR”. 31. The learned Counsel for the State has cited the case of Radha Mohan Singh alias Lal Saheb and others v. State of U.P., (2006) 2 SCC 450 , wherein Full Bench of the Apex Court has over-ruled paras 11 and 12 of the judgment of Mehraj Singh case (supra). In the case of Radha Mohan Singh the Hon’ble Apex Court while considering the ambit of Section 174, Cr.P.C. held in paras 14 and 15 as under : “The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under Section 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175. The details of the overt acts are not necessary to be recorded in the inquest report. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under Section 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174. Neither in practice nor in law is it necessary for the person holding the inquest to mention all these details.” The case of Pedda Narain v. State of A.P., (1975) 4 SCC 153 and other judgments of the Hon’ble Apex Court as mentioned in para 15 of the judgment of Radha Mohan (supra) were relied upon and it was concluded in the last portion of para 15 as under : “In Mehraj Singh v. State of U.P., the language used by the legislature in Section 174, Cr.P.C. was not taken note of, nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provisions. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby overruled”. 32. Therefore, the judgments of Mehraj Singh (supra) and of Jagdish Murav (supra) based on that case, do not help the appellants. The judgment of Radha Mohan Singh was delivered on 20.1.2006 whereas the judgment of Jagdish Murav was delivered on 24.8.2006 by the Hon’ble Apex Court. It appears that when the case of Jagdish Murav was heard, the judgment of Radha Mohan Singh was not brought to the notice of the Hon’ble Court as the para relied upon in this case had already been overruled by a larger Bench. 33. Moreover in the instant case the special report was sent regarding the incident at 12.10 p.m. as has been stated on oath by constable Nathoo Singh P.W.-7. This statement has not been challenged and it clearly shows that the special report was sent. 34. Again Section 174, Cr.P.C. does not provide that the copy of the FIR is to be sent alongwith the dead body. This statement has not been challenged and it clearly shows that the special report was sent. 34. Again Section 174, Cr.P.C. does not provide that the copy of the FIR is to be sent alongwith the dead body. The U.P. Police Regulations which have statutory effect as has been held in the case of Budh Singh v. State, (2006) 9 SCC 731 , also do not require the investigating officer to send the copy of the FIR alongwith the dead body. Regulation 139 deals with the procedure to be observed when a body is sent for post-mortem examination. Sub-rule (6) of this Regulation provides : "The investigating officer shall prepare in duplicate a descriptive roll of the body, containing particulars of identification distinct from any injuries that may be apparent. He shall give one copy of this roll to the constable accompanying the body, and send the other by post to the police officer in charge of headquarters." Sub-rule (7) of this Regulation provides : "Besides this descriptive roll, there shall be sent with the body a statement in Form No. 13, which must be prepared with the utmost care. From this, if the body is sent to headquarters or to any other place where there is an English police office, a statement in English, also in Form No. 13 will be prepared in that office and will be forwarded to the medical officer, with a requisition for post-mortem examination in Form No. 33 and a detailed translation of the investigating officer’s report on the appearance and situation of the body and on the cause of death as far as the investigating officer has been able to ascertain it. If there is no English police officer at the place to which the body is sent, the only papers delivered to the medical officer will be those sent with the body by the investigating officer." Thus these regulations nowhere prescribe the papers that are to be sent with the dead body and they nowhere provide that the copy of the FIR is also to be sent alongwith the dead body. 35. Regarding lodging of the report, a suggestion was given to the informant Raja Ram that the report was lodged after visit made by the investigating officer and after due deliberation but he denied that suggestion. 35. Regarding lodging of the report, a suggestion was given to the informant Raja Ram that the report was lodged after visit made by the investigating officer and after due deliberation but he denied that suggestion. The G.D. entry shows that the report was lodged at 9.15 a.m. and thereafter the investigating officer interrogated the witnesses and had left for the place of occurrence. There is presumption of correctness of G.D. entries unless the same is rebutted. But the defence even did not give any suggestion to the G.D. writer that it was not written at the time as mentioned by him and was ante timed. The investigating officer has also denied the suggestion that the report was written at his instance Thus, we come to the conclusion that the contention that the FIR is ante timed or has been written with due deliberation is not acceptable. 36. The learned Counsel for the appellants has vehemently argued that there is mis-joinder of charge and that the accused Krishna Kumar has been prejudiced as he has wrongly been convicted under Section 302, IPC whereas the charge was framed under Section 302 read with Section 34, IPC. The learned Counsel for appellants have cited the case of Willie (William) Slanney v. State of Madhya Pradesh (S), AIR 1956 SC 116 (V. 43). In that case it has been held by the Constitution Bench of the Apex Court that, “The Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he is tried by a competent Court, if he is told and clearly understands the nature. If the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then provided there is ‘substantial’ compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based”. 37. In that matter two accused (W&R) were charged under Section 302/34 IPC. There was no statutory alternative charge under Section 302, IPC against the accused persons. The Courts below held that the accused inflicted fatal blow and held him guilty under Section 302, IPC, while the other accused ‘R’ was acquitted for absence of evidence against him. It was held that having regard to the nature of charge framed the omission to frame a separate charge under Section 302 of the Penal Code against W, was only a curable irregularity which in the absence of any prejudice could not affect the legality of conviction under Section 302, IPC. On facts of that case it was held that there was no prejudice to the accused by way of failure of justice. However his conviction was altered from Section 302 to Section 304, I.P.C. 38. In the case of Radha Mohan Singh (supra) also the matter of mis-joinder of charge came up for consideration before the Hon’ble Apex Court. It has been held in para 20 in that case that : “In view of Section 464 Cr.P.C. it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself.” In that case the witnesses had clearly deposed that A-1 was armed with spear and he assaulted the deceased with the said weapon. In his examination under Section 313, Cr.P.C., a specific question in this regard was put to A-1 and it was held that A-1 was made aware of the basic ingredients of the offence and the main facts sought to be established against him were explained to him and could be convicted under Section 302, IPC for having committed the murder in question. 39. 39. Section 464 (1), Cr.P.C. provides that no findings sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. In the instant case witnesses made specific statements that knife blows were given by the accused Krishna Kumar. During examination under Section 313, Cr.P.C., this fact was specifically put to the accused. The evidence on record shows that accused Krishna Kumar was aware that he was being tried for the murder of Mansha Ram. In the circumstance if the learned trial Court convicted the accused under Section 302, IPC instead of Section 302 read with Section 34, IPC under which he was charged, it cannot be said that any prejudice has been caused to the accused. The learned Counsel for the appellants could not show as to what prejudice was caused to the accused by his conviction under Section 302, IPC instead of Section 302 read with Section 34, IPC. In the circumstance the conviction order is not vitiated and the plea as taken by learned Counsel for appellants is devoid of merits and cannot be accepted. 40. The learned Counsel for the appellants has further contended that the learned trial Court has not complied with provision of Section 233, Cr.P.C. and it has caused miscarriage of justice as the accused could not get opportunity to adduce their defence. Learned Counsel for the State has contended that sufficient compliance of the provision of Section 233, Cr.P.C. has been made. It will be relevant to refer Section 232, Cr.P.C. which reads as under : “If after taking evidence for the prosecution, examining the accused and hearing the prosecution and defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. Section 233 (1) Cr.P.C. reads as under : “Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof”. 41. Section 233 (1) Cr.P.C. reads as under : “Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof”. 41. The examination of the accused under Section 232, Cr.P.C. refers to his examination under Section 313, Cr.P.C. The learned Counsel for the appellants has contended that while examining the accused under Section 313, Cr.P.C. the question whether he wants to adduce defence cannot be put as that stage arises after the Court decides that the accused is not to be acquitted. The accused can be put this question as provided under Section 233, Cr.P.C. i.e. after the stage of Section 232, Cr.P.C. is over, but in this case it was not done and it has prejudiced the accused. 42. In old Cr.P.C. there was almost a similar provision under Section 342, Cr.P.C. as is in the present Section 313, Cr.P.C. In the case of Pati Ram v. State of U.P., 1970 (3) SCC 703 , a question cropped up before the Hon’ble Apex Court regarding effect of putting a question to the accused whether he wanted to adduce his defence evidence in his examination under Section 342, Cr.P.C. and it was held in para 10 as under : “It was next urged that Section 289, Cr.P.C. had been contravened and, therefore, the conviction of the appellant cannot be sustained. This contention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial Judge can call upon him to enter into his defence. This is clearly a misreading of the section. What that section requires is that if the trial Judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr.P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr.P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr.P.C., the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr.P.C.” 43. In the instant case also while the accused were examined under Section 313 Cr.P.C., the questions regarding the evidence that had come, were put and in the end it was asked whether they wanted to adduce any defence evidence and the accused replied in negative. The learned Counsel for the State contended that by putting this question at the time of examination under Section 313, Cr.P.C. no prejudice has been caused to the accused and it has not resulted in any miscarriage of justice. As per provision of Section 233, Cr.P.C., as the procedure stands after the stage of Section 232, Cr.P.C., is over and Court is of the opinion that the accused cannot be acquitted on the basis of the evidence that has come, the accused is to be called upon to enter into his defence. It is desirable that this procedure should be followed and the question regarding production of defence evidence should be put at that stage. It is also desirable that the learned trial Court should record findings in the order sheet that accused cannot be acquitted under Section 232, Cr.P.C. and then he should call upon the accused to enter into his defence. But if this procedure has not been followed in the instant case, it does not vitiate the trial and in the circumstance of the case, it cannot be said that any miscarriage of justice has been caused to the accused persons. Had the accused been not asked at all or had they been not allowed to adduce their defence evidence, the position could have been different. Moreover the procedure is only hand maid of justice. Therefore, this hyper-technical plea does not help the defence. 44. Had the accused been not asked at all or had they been not allowed to adduce their defence evidence, the position could have been different. Moreover the procedure is only hand maid of justice. Therefore, this hyper-technical plea does not help the defence. 44. In this case as the evidence has come all the three accused came with a pre concert and were armed with knife and lathi. Although the fatal blows were given by accused Krishna Kumar but as the evidence has come, it shows that other two accused Bhikam Lal and Sukhdeo actively participated in this incident and they were the first person who pressed the necks of the three persons who were sleeping at that time. Pressing of the neck by lathi clearly shows that the accused persons wanted to overpower the three persons so that Krishna Kumar could inflict the knife blows. In the circumstance it cannot be said that the two accused are not vicariously liable for the act of the third accused namely Krishna Kumar. 45. In the case of Rajesh Govind Jagesha v. State of Maharashtra, AIR 2000 SC 160 , it has been held by Hon’ble Apex Court that no premeditation or previous meetings of mind is necessary for applicability of Section 34, I.P.C. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not to be proved in all cases. 46. In the case of Suresh and another v. State of U.P., (2001) 3 SCC 673 , the Full Bench of the Hon’ble Apex Court while considering the scope of Section 34, IPC held, “Section 34 makes accused liable for the ultimate criminal act done by other co-accused persons in furtherance of common intention of all of them. It does not require separate individual acts by all the accused persons for making them liable for the ultimate criminal act. No overt act is needed on the part of an accused to attract Section 34, if he shares the common intention with others in respect of the ultimate criminal act which may be done by any one of the accused sharing such intention”. No overt act is needed on the part of an accused to attract Section 34, if he shares the common intention with others in respect of the ultimate criminal act which may be done by any one of the accused sharing such intention”. In the instant case all the accused came together and they did overt act in furtherance of their common intention and therefore, all of them are equally liable for the murder of Mansha Ram as well as for causing injuries to Raja Ram and Nanhey Lal. 47. In the circumstances, we come to the conclusion that the prosecution has been able to establish that the incident of murder of Mansha Ram took place at the time and place and in the manner as alleged by it. The prosecution witnesses of fact and occurrence are reliable witnesses and their testimony inspires confidence. The testimony of the eye-witnesses has also been fully corroborated by the allegations made in the first information report and the medical evidence. It is also established that all the accused acted in furtherance of their common intention and all the three are equally liable. 48. Thus, we come to the conclusion that the prosecution had established its case beyond reasonable doubt and the learned trial Court has rightly held accused guilty and has rightly convicted them. There is no merit in this appeal and it is liable to be dismissed. 49. The appeal is hereby dismissed the appellants are on bail. Their bail is cancelled. The appellants are directed to surrender forthwith in the Court of Chief Judicial Magistrate, Unnao, who shall ensure that the accused appellants are committed to custody to serve out the sentence awarded to them. The Chief Judicial Magistrate concerned shall send compliance report within one month. 50. The trial Court record be sent back forthwith. ————