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Jharkhand High Court · body

2010 DIGILAW 67 (JHR)

Dhanu Napit v. State of Jharkhand

2010-01-12

J.G.S.RAWAT, JAYA ROY

body2010
JUDGMENT By the Court.-This appeal has been preferred by the appellants against the judgment of conviction and order of sentence passed by the learned 1st Additional Sessions Judge, Chaibasa Camp, at Seraikella. The accused-appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years under Section 148 of the Indian Penal Code. It was further directed that both the sentences would run concurrently. 2. The brief facts of the case is that on 28.8.1985 at Village-Pilit, P.S. Ichagarh, District-Singhbhum, the informant-Laxman Napit alongwith his brother, mother, sister and his father (the deceased Motilal Napit) were in their courtyard. In the meantime, the accused-appellants, alongwith other co-accused, namely, Dinesh Napit, Bhagirathi Napit and Shashi Napit came at the courtyard. The accused-appellants were holding Farsa in their hands whereas the other co-accused were holding Lathis in their hands and immediately after reaching at the place of occurrence, the appellant Dhanu Napit began to abuse Motilal Napit, the father of the informant, (the deceased). Motilal Napit had objected on the action of the appellants as well as the co-accused. Thereupon the accused-appellants started assaulting Motilal Napit, the father of the informant with 'Farsa' on the head which they were holding in their hands. Consequently, his father sustained injuries and fell down on the ground. The informant immediately came at the spot to rescue his father, whereupon the appellants as well as other co-accused also assaulted him with weapons which they were holding in their hands. The said incident was witnessed by Ganshi Munda, Butlu Burhan and the female members of his family who were present at the place of occurrence. After the alleged occurrence, the accused appellants as well as the other co-accused fled away from the place of the occurrence. Subsequently, a compounder was called for the treatment of father of the informant-Motilal Napit. The matter was reported to the police on the next day at about 9.30 A.M and the police started the investigation. After completing the investigation, the charge-sheet was submitted before the learned Sub-Divisional Judicial Magistrate, Seraikella who took cognizance of the offence and committed the case to the court of sessions to stand their trial. The learned Additional Sessions Judge framed the charges against the accused appellants as well as other co-accused persons. After completing the investigation, the charge-sheet was submitted before the learned Sub-Divisional Judicial Magistrate, Seraikella who took cognizance of the offence and committed the case to the court of sessions to stand their trial. The learned Additional Sessions Judge framed the charges against the accused appellants as well as other co-accused persons. The accused appellants had denied the charges and claimed that there was a quarrel between the female members of the two family with regard to the space of 'Gali'. 3. In support of its case, the prosecution has examined seven witnesses viz P.W. 1-Manjulata Devi, the wife of P.W. 5, P.W. 2-Khirod Napit, P.W. 3Dhaneshwar Mahato, P.W. 4-Gaur Singh, P.W. 5-Laxman Napit P.W. 6-Dr. R.K. Sharma who has conducted the Autopsy on the dead body of the deceased, P.w. 7Mohan Lal Mahato has proved the First Information Report lodged by the informant, P.WA is the hostile witness and he had not supported the prosecution. According to the prosecution, P.W. 1, P.W. 2 and P.W. 5 are said to be the eye witness of the incidence. 4. Thereafter, the accused-appellants were examined under Section 313 of the Criminal Procedure Code who denied all the averments made in the prosecution evidence against them. They also denied their participation in the alleged offence at the time of the occurrence. They have stated that they have been falsely implicated in this case. 5. The accused appellants did not adduce any oral or documentary evidence in support of their defence. 6. On perusal of the entire records as well as evidences on record, the learned Addl. Sessions Judge convicted the accused appellants and sentenced them, as indicated above. The rest of the 'accused namely Dinesh Napit, Shashi Napit and Bhagirath Napit had been acquitted by the trial court. 7. It needs to be mentioned here that there is no dispute that the death occurred on the date, time and place indicated in the prosecution story. It has further come on record by the evidence of Dr. R.S. Sharma who is P.W. 6 and who had conducted the autopsy on the dead body of the deceased on 13th August 1985 at about 11.20 A.M, that he found the following ante mortem injuries on the person of the deceased:- (i) Cut laceration on the scalp behind the right ear measuring 3 c.m. x 1 c.m with fracture of occipital bone. (ii) Cut laceration on the middle of scalp 5 c.m. x 2 c.m. x fracture of right paretal bone. (iii) There was intra careueal haemorrhage viz sub-dural and sub-arachoid on right back of cureneal cavity. According to the evidence of the Doctor, the injuries were caused by heavy sharp cutting weapons and the time of the death was approximately 2%" to three days at the time of autopsy and it was also indicated in the report as well as in evidence that the death was caused due to head injuries. It was further opined that the injury nos. 1 & 2 were sufficient in the ordinary course of nature to cause the death of the deceased. P.W. 6, the doctor also opined that these injuries could be caused by 'Farsa' also. The prosecution has also brought on record the evidences of P.W. 1 Manjulata Devi/P.W. 2 Khirod Napit/P.W. 5 Laxman Napit and P.W. 7 Mohanlal Mahato to prove that the incident occurred at the date, time and place as stated by the prosecution and the appellant succumbed to the injury in the night. Thus, it is established that the death of the deceased was at the time and place as indicated by the prosecution. 8. Now, it has to be decided that who assaulted on the person of the deceased, according to the prosecution, as these injuries have been caused by Farsa. The appellants were holding sharp cutting weapons in their hands at the time of incident. According to the defence, they have stated that they had been falsely implicated in this case and they have not assaulted the deceased (Motilal Napit). The prosecution, in support of its case, examined P.W. 1 Manjulata Devi, the wife of P.W. 5-Laxman Napit. She has stated that the accused-appellants came at the spot and they were holding the Farsa in their hands. The accused appellants assaulted her father-in-law with Farsa on his head and consequently, her father-in-law fell down on the ground and the other co-accused also assaulted with Lathi on her father-in-law. She has stated that the accused-appellants came at the spot and they were holding the Farsa in their hands. The accused appellants assaulted her father-in-law with Farsa on his head and consequently, her father-in-law fell down on the ground and the other co-accused also assaulted with Lathi on her father-in-law. The brother of deceased-P.W. 2 has also corroborated these facts in his evidence whereas P.W. 5 the informant (the son of the deceased) has also stated that the accused appellants Dhanu, Muni, Abhi and Usha were holding Farsa in there hands and assaulted his father on his head and as such the deceased fell down on the ground and he sustained the head injury. 9. The learned counsel appearing for the informant contended that as the witnesses are related with each other and they are partisan witnesses, their evidences cannot be taken into account. The learned A.P.P. appearing for the State refuted the contention and contended that even if the witnesses are related and interested, their evidence cannot be brushed aside if otherwise found to be trustworthy. It is settled principle of law that in the trial merely because a witness is interested and related he cannot be discarded if otherwise found to be trustworthy. There is no rule of law which requires that the evidence of close relation must be discarded for the simple reason that they are related with each other if his evidence is otherwise cogent and convincing. It would be the endeavor of the relations that the real culprits must be punished in the case and the real culprits may not escape unpunished. The Apex Court in the case of [Munshi Prasad & Ors. vs. State of Bihar [2002 SCC (Criminal) page 175] [ : 2001 (2) JLJR (SC)897] has dealt observed as under:- 11. Turning attention on to other counts of submission in support of the appeal as regards false implication, the appellants contended that there has beena series of litigation between the parties, in particular, PW-5 and as such the accused persons were meant to suffer the litigation process in a heavy way: unfortunately, however, there is no evidence to the effect as is now being stated before this Court. On the contrary the prosecution alleged a definite motive and a grudge against the accused persons and the same would be evident from the observations of the High Court in that regard. On the contrary the prosecution alleged a definite motive and a grudge against the accused persons and the same would be evident from the observations of the High Court in that regard. The High Court in para 16 of the judgment stated as below:- "16. So far as the motive for occurrence is concerned, several documents have been filed and it has been pointed out that because there was a series of litigation between the two parties and in some of the cases filed on behalf of the informant, some of the accused and their relations were also convicted, they have grudge against the family of the informant It is, therefore, clear that the appellants in this case had strong motive for committing the murder of the brother of the informant in this case. However, it has been submitted on behalf of the appellants that it is strange that when the informant himself was the informant in the cases in which the appellants were either convicted or they were facing trial and when the informant was also surrounded by them, why did they spare the informant and kill his brother? In this connection, it has been submitted on behalf of the State that from the evidence of the informant (PW-5), it becomes clear that when the accused persons were surrounding him alongwith his deceased brother, he fled away, from the ring of the accused persons. PW-5 has also clearly stated that when he ran to some distance he stopped and started looking at the PO and he found that his brother was surrounded and was being assaulted by the accused person. It appears that because of smartness and presence of mind the informant succeeded in extricating himself from the clutches of the assailants and as his brother could not be so prompt in taking care and he was surrounded and attacked. If the accused persons had grievance against the informant and his family, it is not surprising that they chose the brother of the informant to kill him when the informant escaped. Therefore, there is nothing unnatural in it." In the case of [State of Punjab vs. Karnail Singh reported in 2004 SCC (Criminal) page 135] the Hon'ble Apex Court held as under:- 8. We may also observe that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. Therefore, there is nothing unnatural in it." In the case of [State of Punjab vs. Karnail Singh reported in 2004 SCC (Criminal) page 135] the Hon'ble Apex Court held as under:- 8. We may also observe that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh vs. State of Punjab in which surprise was expressed over that impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another bench of this Court endeavoured to dispel in 'Rameshwar vs. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel. Again in Masalti vs. State of U.P., this Court observed (AIR pp. 209-10, para 14):- "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses......... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. " 10. It is settled principle of law that if the entire case falls on the ground of relationship, the evidence cannot be discarded, the evidence of interested related witnesses can only be scrutinized. 11. " 10. It is settled principle of law that if the entire case falls on the ground of relationship, the evidence cannot be discarded, the evidence of interested related witnesses can only be scrutinized. 11. The learned counsel for the appellants further contended that the prosecution has admitted that there were other witnesses, the names of whom have been indicated in the FIR, but they have not been produced before the court. The learned APP refuted the aforesaid contention of the appellants and contended that it is true that if a material witness who can unfold the gap of prosecution story is not examined and his evidence is not brought on record, it will affect the case of the prosecution rather it will be a gap in the prosecution case. It is further submitted that an inference would be drawn against the prosecution if those witnesses would have been examined, they would not have supported the prosecution case. It is the settled position of law that the court has to see the quality of evidence and not the quantity of the witnesses. It is a settled principle of law that examination of all the witnesses always not necessarily to multiply the evidence regarding the incident on the same point. In such case it has to be seen what is the quality of the witnesses. In the case in hand all the witnesses have unfolded the story of the prosecution. In the case of Komal & Ors. vs. State of U.P. reported in [2002 SCC (Cr.) 1600], the Hon'ble Apex Court has held as under:- 11. Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were being assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of P.Ws. 2 and 4, the two injured eye-witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborated by the informant P.W. 5 and supported by medical evidence as well as objective finding of the Investigating Officer. 12. It was further held in the case of Baburam & Anr. 2 and 4, the two injured eye-witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborated by the informant P.W. 5 and supported by medical evidence as well as objective finding of the Investigating Officer. 12. It was further held in the case of Baburam & Anr. vs. State of U.P. & Ors., reported in [2002 SCC (Cr.) 1400] as under:- ''7.lt was submitted by the learned counsel for the appellants that Ram Autar, an independent eye-witness present at the scene of occurrence according to the prosecution case and a Government servant has not been examined, and therefore, an adverse inference should be drawn against the prosecution. It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye-witnesses examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. In the case at hand we additionally find from the testimony of Asharfi Lal that in spite of being a Government servant and not involved in local village disputes he is afraid of deposing against the accused persons and there is substance in the submission of the learned counsel for the State that Ram Autar if tendered in the witness box should have followed the same track as was chosen by Asharfi Lal, PW-3." 13. In this case, the prosecution has examined three eye-witnesses on the same point. It is not necessary that the prosecution is not (sic) bound to produce the other witnesses. It would amount to multiply the evidence on the same point. It is also pertinent to mention here that the witnesses who are independent and are not related, did not like to come before the Court to give the evidence due to the various reasons. It would amount to multiply the evidence on the same point. It is also pertinent to mention here that the witnesses who are independent and are not related, did not like to come before the Court to give the evidence due to the various reasons. They are sometimes threatened and they are sometimes harassed and the Hon'ble Apex Court while dealing this aspect in the case of Krishna Mochi & Ors. vs. State of Bihar reported in [2002 SCC (Cr.) P. 1220] held as follows:- "It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore minor discrepancies have to be ignored. These days it is not difficult to gain over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons in/or close to powers and musclemen or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time." "Thus, in a criminal trial a prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should. not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh vs. State (Delhi Admn.), Krishna Iyer, J. laid down that (See P.162, para 2) "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes". In the case Inder Singh vs. State (Delhi Admn.), Krishna Iyer, J. laid down that (See P.162, para 2) "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes". In the case of State of U.P. vs. Anil Singh it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man d08s not escape. One is as important as the other Both are public duties which the Judge has to perform. In the case of State of W.B. vs. Orilal Jaiswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law. In the case of Mohan Singh vs. State of M.P. it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust' remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. In view of the above, we do not find any force in the contention raised by the learned counsel for the appellant." 14. The learned counsel appearing for the appellant contended that the motive which has been assigned for causing the death of the deceased was not so grave which could provoke the accused-appellant to cause the death of the deceased. The learned A.P.P. refuted the contention and contended that sufficient motive has been proved by the prosecution. The learned counsel appearing for the appellant contended that the motive which has been assigned for causing the death of the deceased was not so grave which could provoke the accused-appellant to cause the death of the deceased. The learned A.P.P. refuted the contention and contended that sufficient motive has been proved by the prosecution. It transpires from the evidence of the prosecution witnesses that there was a 'Gali' in between the houses of both the parties. There was a recurring dispute about the use of the said Gali by both the parties and it is also in the evidence that there was a scuffle about the said 'Gali' and thereafter the said incident occurred. The prosecution has thus sufficiently proved the motive even though assuming that the motive has not been proved if the ocular testimony is found credible and cogent, the motive is of no help to the defence. {See the case of Yunis @ Kariya vs. State of M.P. reported in [2003(1) SCC P. 425} The prosecution proved the motive to commit an offence. Motive to commit an offence is not an act which can be seen by the eyes of the witnesses. It is a mental situation of the things and how a person is persuasive and takes a things to his heart. Sometimes very small thing may retaliate to commit the death of a person and sometimes a grave situation would have not swayed to the person to any consequence. Thus, it is a creature of mental awareness, it cannot be said in which situation a person can cause the death and at what time it would affect his mental imbalance. 15. Learned counsel further contended that there are contradictions in the testimony of the witnesses. The informant has stated in the F.I.R. that the appellants were holding 'Farsa' in their hands whereas in the evidence when he (P.W. 5) appeared before the Court it has been stated that the accused appellants were holding Tabla and sword in their hands. Learned counsel has further contended that there is a major contradiction with regards to weapon which the accused appellants were holding as well as in the manner of the incident. From the perusal of the evidence of P.W. 5 Laxman Napit it appears that the two accused appellants were holding Tabla and two appellants were holding Swords in their hands. Learned counsel has further contended that there is a major contradiction with regards to weapon which the accused appellants were holding as well as in the manner of the incident. From the perusal of the evidence of P.W. 5 Laxman Napit it appears that the two accused appellants were holding Tabla and two appellants were holding Swords in their hands. Whereas in the F.I.R. it is stated that the appellants were holding Farsa in their hands. We have gone through the entire evidence of P.W. 5 with the help of the learned counsel for the parties. Learned counsel could not demonstrate that these contradictions have been put to P.W. 5 Laxman Napit under Section 145 of the Indian Evidence Act. It is provided under Section 145 Evidence Act that if a witness is sought to be contradicted with reference to his previous statement, his attraction must be drawn to the same statement. When there is nothing to show that the previous statement of the witness was placed before him and the witness was not given chance to explain and when his previous statement was not marked as an exhibit, that portion of that statement, cannot go as an evidence. Thus, it was obligatory on the part of the defence to put that contradiction to the witnesses under Section 145 of the Indian Evidence Act so that the benefit of the said contradiction may be taken by him. Apart from it, both sword as well as Tabla are the sharp cutting weapons. The witness is a villager. It has also come in the evidence that the father of P.W.5 informant was struck by the Farsa, due to which, he fell down and naturally the son would be disturbed and therefore, the minor discrepancies are bound to come in the evidence due to the normal errors of observation, normal error of memory, due to lapse of time and due to mental agony at the time of the occurrence. However, honest and truthful witness howsoever he may be, but he cannot accurately spell out and recall the consequences of the incident which took place in a short span of time and reproduce the consequence of evidence before the Court. If the main purport of the evidence is credible and cogent, the evidence cannot be ignored. It would be unfair to expect a person to be a human tape recorder or video camera. If the main purport of the evidence is credible and cogent, the evidence cannot be ignored. It would be unfair to expect a person to be a human tape recorder or video camera. The rustic people or the villagers can explain the things in their own ways and in such a way it cannot be said that these contradictions have any material effect in the present one. The contention of the learned counsel for the appellant has no force. 16. Learned counsel for the appellant further contended that P.W. 1 is not the eye witness of the incidence as stated by P.W. 5 and she was not present at the time of the incidence as indicated in para6 of his cross-examination. Learned A.P.P refuted this contention. From the perusal of her evidence it clearly reveals that the P.W. 5 stated that the appellant as well as P.W. 1 went to their house but it cannot be said by the other witnesses whether they had witnessesed the incident or not. The incident was going on at the spot. The evidence of the witnesses to see the incident is credible and cogent that they were the eye witnesses of the incident, in view of the above fact that evidence of P.W. 1, P.W. 2 and P.W. 5 cannot be discarded. 17. We have gone through the entire evidence on record with the help of the learned counsel for the parties. We do not find any infirmity with findings recorded by the trial court on conspectus of various relevant features' of the case including genesis; the nature of the indent; the nature of weapons carried by the accused-appellants at the time of occurrence, it cannot concluded from the prosecution evidence or from any probability arising from the record that the accused/ appellants had falsely been implicated in this case. After going through the same, we do not find any reason to disbelieve the version of the prosecution witnesses. The learned counsel for the defence had cross- examined in witnesses nothing could be elicited to discredit their testimony. We are convinced that accused-appellants committed the said offence. After our independent appreciation, we are also of the same view that the accused appellants have committed the offence as alleged by the prosecution. 18. The learned counsel for the defence had cross- examined in witnesses nothing could be elicited to discredit their testimony. We are convinced that accused-appellants committed the said offence. After our independent appreciation, we are also of the same view that the accused appellants have committed the offence as alleged by the prosecution. 18. The learned counsel for the appellants further contended that there was no intention of the appellants to cause the death of Moti Lal Napit. As such, he can be convicted under Section 304 Part-II of the I.P.C. Now it has to be seen whether the offence falls within the purview of Section 304 Part-II or not. It is not in dispute that both the parties are the resident of the same village and their houses are in the same vicinity and their houses opens on the same 'gafi' for which there was a dispute. It is also not in dispute that they are related with each other. It is also in the evidence in para 6 of P.W. 5 that a scuffle took place before the incident occurred. Moti Lal Napit also intervened in the matter in between the complainant and the accused parties but they did not succumb to the request of Moti Lal Napit, the deceased. Again they started quarrel with each other. It is also not in dispute that the accused appellants were also present at the spot. The accused appellants scuffled with the prosecution witness P.W. 5. Thereafter, Farsa was used and it hit the head of the deceased. It is not the case of the prosecution that thereafter they remained there and the accused appellant fled away from the spot. It is also in the evidence that the witnesses came later on and the accused appellant had fled away from the spot. It is also in the evidence that Moti Lal Napit had not died at the spot, he died in the night in his house. They were all aware that he is alive. If their intention was to kill him, they could have been killed him at the spot. They would have hit him again and again as there were full opportunities to kill the deceased at the spot. The accused appellants did not kill him or did not cause further injury upon person of Moti Lal Napit, deceased and they ran away from the spot. They would have hit him again and again as there were full opportunities to kill the deceased at the spot. The accused appellants did not kill him or did not cause further injury upon person of Moti Lal Napit, deceased and they ran away from the spot. Thus, there is only injury Nos.1 and 2 which were caused by Farsa and it is not in the evidence that the said injury aimed to cause on the vital parts. 19. In the case of Laxman vs. State of M.P. reported in [2007(1) SCC (Cr.) Page 449], the Hon'ble Apex Court has held:- "18. The above are only broad guidelines and not cast iron imperathies. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 19. The position was highlighted by this Court in State of A.P. vs. Rayavarapu Punnayya and recently in Abdul Waheed Khan vs. State of A.P. and in Thangaiya vs. State of T.N. 20. The fact situation shows that arrows were being shot from a distance, not with any accuracy. One of such arrows hit the deceased. As established by the evidence of the eyewitnesses, the appellant had shot that arrow. There was no sudden quarrel as stated by the appellant. The evidence shows otherwise. 21. Considering the background facts as noted above, the appellant has to be convicted in terms of Section 304 Part-I I.P.C. and not in terms of Section 302 I.P.C. The conviction is accordingly, altered. Custodial sentence of 10 years would meet the ends of justice." 20. Thus, we are of the view that the said injuries by the appellants were not caused with the intention to kill him and the case falls within the ambit of Section 304(11). 21. In the present scenario, the present case also falls within the ambit of Section 304(11) of the Indian Penal Code. 22. As we have pointed out that after causing the Farsa blows on the person of the deceased they fled away from the place of occurrence. 21. In the present scenario, the present case also falls within the ambit of Section 304(11) of the Indian Penal Code. 22. As we have pointed out that after causing the Farsa blows on the person of the deceased they fled away from the place of occurrence. The witness kept at the spot later on it is not in the evidence that due to the intervention of the witnesses they stopped the assaulting the deceased. Thus, it is proved that the appellants had no intention to cause such bodily injury as was likely to cause the death but he had the knowledge that the injury was likely to cause the death. When the appellants struck on the deceased it would be reasonable to infer that they had knowledge that any injury on the body of the deceased would cause the death. So, in the instant case the conviction under Section 304(11) would be just and appropriate. 23. The learned trial court has convicted the accused-appellant under Section 302 read with Section 149. The learned trial court has acquitted the other three accused. As such only four accused remained for the conviction. The learned trial court while acquitting the rest of the four accused, has categorically stated that so far as co-accused Dinesh Napit, Shashi Napit and Bagiral Napit are concerned, according to the prosecution case they were also present but they have not touched the body of the deceased. It is alleged that they assaulted on the persons of Laxman Napit, the informant but there is nothing to show that by that assault, they caused any injuries on the person of the informant or any other persons. The trial court held that they are liable to be acquitted. Thus, the clean acquittal was given to them. The trial court has not held that it was a case of mis-identity. Thus, the presence of four accused would not constitute an unlawful assembly and there must be five or more than five persons to make an unlawful assembly. Thus, the Sections 148 and 149 cannot be invoked in this case. Now, it is a settled position of law that if it is proved that there was common intention, the accused can be convicted under Section 34 instead of Section 149 of the I.P.C. To attract Section 34 I.P.C the following ingredients must exist:- 1. Thus, the Sections 148 and 149 cannot be invoked in this case. Now, it is a settled position of law that if it is proved that there was common intention, the accused can be convicted under Section 34 instead of Section 149 of the I.P.C. To attract Section 34 I.P.C the following ingredients must exist:- 1. Criminal Act (consisting of series of act) should have been done not by one person but by more than one person. 2. Doing of abuse of such individual act accumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of such persons. Section 34 has been enacted on the principle of joint participation in doing the criminal act. The Section creates a vicarious liability and it does not create any substantive offence. A plain look at the Section reveals that to attract under Section 34, there must be simultaneously consensus of the mind of the persons participating in the criminal action to bring about the particular gain. It is appropriate to record here that such consensus can develop at spur of moment at the spot. The common intention is a state of mind of an accused which can be observed objectively from his conduct. In the commission of the crime in the incident, the accused appellants were holding the Farsa and jointly tried to assault the deceased. Thus, they had common intention to cause the injury on the person of the deceased. As such, the accused can be convicted with under Section 304 Part-A I.P.C. with the aid of Section 34 I.P.C. The Apex Court in the case of reported in [Bhagwan Baksh Singh vs. State of U.P., Cr. Appeal No. 13/1957 decided on 18.8.1958] held that "Ten persons were tried convicted by the Sessions Judge under Sections 302/ 149 of the I.P.C. On the appeal, the High Court gave benefit of doubt to seven of them and convicted the remaining three accused persons under Sections 302/34 of the I.P.C. The High Court took the view that according to the prosecution case, there being only ten persons who formed the unlawful assembly, seven of whom had been acquitted, there remained only three accused persons. With the result that Section 149 became inapplicable and that recourse had to be taken to Section 34. With the result that Section 149 became inapplicable and that recourse had to be taken to Section 34. The High Court also found that on the evidence, there was no escape from the conclusion that the assailants could not have been less than 6 or 7 persons, as shown by the number and nature of the injuries on the victim of their assault. Held, the only difficulty which the High Court felt in the application of Section 149 was that according to the prosecution evidences, only ten accused persons were there, though the charge did specific that the ten named accused persons alongwith others, were members of the unlawful assembly. But in view of the specific evidence that the ten accused were the only persons who constituted the unlawful assembly the High Court found it more in consonance with the evidence to apply the provisions of Section 34 instead of Section 149 of the I.P.C. As regards the applicability of Section 34 to the facts of this case, it may be pointed out that the charge itself specifically alleged that the common object of the unlawful assembly was intentionally to cause the death of the deceased. Therefore, the accused had ample notice of the charge of common intention. Therefore, the High Court was right in taking the view that recourse could be had to the provisions of Section 34 of the I.P.C. The Apex Court in the case of [Pyarey & Ors. vs. State of U.P. reported in (2001)10 SCC 487 ] held that the five persons were convicted for the murder of one Tota Ram under Section 302 read with Section 149 of the I.P.C and all of them were sentenced to imprisonment for life. The appeal was preferred before the Allahabad High Court and the Allahabad High Court after hearing the appeal confirmed the conviction and sentence passed on them. During the pendency of the appeal before the High Court, one of the accused died so his appeal was abated. Pyarey wanted deceased Tota Ram not to give evidence against Pyarey in the murder case, in which Pyarey an accused and Tota Ram deceased was the witness but the deceased did not succumb to his request not to appear as a witness. Pyarey wanted deceased Tota Ram not to give evidence against Pyarey in the murder case, in which Pyarey an accused and Tota Ram deceased was the witness but the deceased did not succumb to his request not to appear as a witness. On the date of incident, when one of the witness Shobhi Ram was doing his agricultural operations in the field, his brother the deceased came there alongwith two other persons Manohar and Summeri. Thereafter, all five accused ran towards the field. Seeing them running Manohar and Summeri fled away from the scene. As Tota Ram knew that the target of the assailants was himself he tried to escape from the scene. But he was chased by all the five accused and after some chase they succeeded in stopping the deceased~ Three of the assailants (Pyarey, Dori and Gaindan) were armed with sharp cutting weapons similar to axe and they stood in front of the deceased blocking his further running. The other two persons (Khargi and Shobhi) were armed with sticks, but they could reach only on the back side of the deceased. Witnesses' version is that the five assailants surrounded the deceased and the first three assailants attacked the deceased with the axe. Injuries sustained by the deceased thereby were so devastating that he died at the spot instantaneously. In this appeal, under Article 136 of the Constitution we are not inclined to reopen the appreciation of evidence of the two eye-witnesses. Still we entertain doubt as to whether the accused Khargi and Shobhi would have shared the common object to murder Tota Ram. Evidence of the eye-witnesses has shown only that those two persons ran and remained behind the deceased. In spite of the fact that they were armed with sticks none of them used those weapons to inflict at least one beating on the deceased. None of them said anything at the spot. None of them prevented the deceased from running away nor did they step forward to stand in front of the deceased. In the aforesaid broad situation it is difficult to conclude that the accused Khargi and Shobhi ran only because they also shared the common object with the other assailants. Perhaps, they would have run to rescue the deceased, but if that is too much to imagine at least they would have run to see what was going to happen. In the aforesaid broad situation it is difficult to conclude that the accused Khargi and Shobhi ran only because they also shared the common object with the other assailants. Perhaps, they would have run to rescue the deceased, but if that is too much to imagine at least they would have run to see what was going to happen. To say that their running was only with the common object alongwith the other assailants to murder the deceased we require something more to have been done by them. As the prosecution witnesses did not attribute anything more to those two accused, we find it difficult to confirm the conviction of those two persons with the help of Section 149 of the Indian Penal Code. But conviction and sentence under Sections 302/34 IPC on the other three assailants are confirmed." 24. The conviction under Section 302 read with Sections 148 and 149 of the I.P.C. is liable to be set aside and the accused appellants are liable to be convicted under Section 304 Part-I read with Section 34 of the I.P.C. instead of Section 302 read with Section 149 of the I.P.C. Whereas the punishment is concerned, nine years rigorous imprisonment would serve the purpose and it would be just and proper in the facts and circumstances of the case. 25. Further, the learned counsel pointed out that it is mentioned in the order of this Bench of this Court on 5.4.1994 that the accused is in custody since nine years. It is indicated in the order of this court dated 5.4.1994 that the accused is in custody since last nine years and since there was no chance of hearing the appeal, as such they were granted bail. In view of the above, the accused-appellants had already been served out the sentence. 26. The appellants are convicted under Section 304 Part-II read with Section 34 I.P.C. instead of Section 302/149 I.P.C. and they are convicted to R.I. for nine years. 27. The appeal is partly allowed to the above extent. 28. The accused appellants are on bail and they will surrender before the trial court and the trial court would verify before sending them to jail to serve out the sentence for nine years as awarded by the Court. If the sentence have not been served out by the accused appellants, they would be sent to jail accordingly.