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2011 DIGILAW 330 (CHH)

Ghanshyam Verma v. State of C. G

2011-10-11

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT Hon'ble Shri Radhe Shyam Sharma, J. 1. These appeals have been directed against judgment and order dated 11th April, 2008 passed by the Session Judge, Durg in Session Trial No. 266/2006, whereby the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently : Conviction Sentence Under Section 147 of IPC R.I. for 1 year Under Section 148 IPC R.I. for 1 years Under Section 302/149 IPC Imprisonment for life with fine of Rs. 1,000/-, in default, to further undergo R.I. for 1 month Under Section 323/149 IPC regarding injured Sunil Kumar Verma R.I. for 1 year with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Under Section 324 IPC regarding injured Devendra Kumar Sapaha R.I. for 2 years with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Under Section 323 IPC regarding injured Devendra Verma R.I. for 1 year with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Under Section 324 IPC regarding Kuleep Nirmal R.I. for 2 years with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Under Section 307 IPC regarding injured Lukesh Kumar Verma R.I. for 4 years with fine of Rs. 2,000/-, in default, to further undergo R.I. for 1 month. Conviction Sentence Appellants Ishwari Banvasi and Shankarlal Chhedaiya under Section 25 of the Arms Act R.I. for 1 year with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Appellants Ishwari Banvasi and Shankerlal Chhedaiya under Section 27 of the Arms Act R.I. for 3 years with fine of Rs. 500/-, in default, to further undergo R.I. for 15 days. Case of the prosecution, in brief, is as under : On the fateful day, i.e., 15-8-2006, at about 8.00 p.m., the accused persons/appellants were standing in front of Shourya Restaurant situated at Bharar Chowk, Patan. They were abusing and using filthy language and saying that Panderwale had quarreled, they all be assaulted, whosoever is found, be killed. Case of the prosecution, in brief, is as under : On the fateful day, i.e., 15-8-2006, at about 8.00 p.m., the accused persons/appellants were standing in front of Shourya Restaurant situated at Bharar Chowk, Patan. They were abusing and using filthy language and saying that Panderwale had quarreled, they all be assaulted, whosoever is found, be killed. Lukesh Kumar Verma (PW-13), Narendra Verma alias Pappu (the deceased), Sunil Kumar Verma (PW-22), Devendra Verma (PW-3), Kuldeep Nirmal (PW-2) and Devendra Kumar Sapaha (PW-19), who were sitting inside the restaurant, came out of it and asked the appellants as to why they were abusing, on which, the appellants said unanimously in filthy language that all Panderwale should be killed. Saying this, appellants Ishwari Banwasi and Shankarlal Chhedaiya with knife, appellant Durgesh Tiwari with rod and rest of the appellants with Danda, started assaulting them. Lukesh Kumar Verma (PW-13) sustained injury on his left rib, deceased Narendra Verma below the left rib in the back, Sunil Kumar Verma (PW-22) on the palm of his left hand, Devendra Verma (PW-3) in finger of his left hand, Kuldeep Nirmal (PW-2) on his head and back and Devendra Kumar Sapaha (PW-19) on the elbow of his right hand. Blood oozed out of their injuries. Rajesh Verma (PW-14), Sunil Kumar Sen (PW-12), Santosh Verma (PW-23) and Radheshyam Yadav (PW-25) took the injured persons to the hospital. Upendra Verma (PW-1) lodged First Information Report (Ex.P-1). Deceased Narendra Verma succumbed to the injuries in Sector-9 Hospital, Bhilai, R.K. Shrivastava (PW-24) sent information regarding death of Narendra Verma vide Ex.P-40. Merg Intimation (Ex.P-41) was recorded in Police Station Bhilai Nagar on 0/2006. Regular Merg Intimation (Ex.P-29) was recorded in Police Station Patan. The Investigation Officer reached Sector-9 Hospital, Bhilai, gave notice (Ex.P-35) to Panchas and prepared inquest (Ex.P-36). Dead body of the deceased was sent for post mortem examination to District Hospital, Durg vide Ex.P-37. The post mortem was conducted by Dr. Regular Merg Intimation (Ex.P-29) was recorded in Police Station Patan. The Investigation Officer reached Sector-9 Hospital, Bhilai, gave notice (Ex.P-35) to Panchas and prepared inquest (Ex.P-36). Dead body of the deceased was sent for post mortem examination to District Hospital, Durg vide Ex.P-37. The post mortem was conducted by Dr. A.K. Soni (PW-28), who gave his report Ex.P-44 and found (i) stab wound, 2cms x 1cm x 3cms on the left side of the chest, 3cms lateral from the left nipple, (ii) penetrating wound, 21/2 cms x 1cm x deep in abdominal cavity on left side of the chest between 9th and 10th ribs, (iii) stab wound, 1cm x 1/2cm x 2cms, on left side of the back, (iv) incised wound, 1cm x 1/2cm x bone deep, below the left eye. He opined that the cause of death was shock due to excessive haemorrhage as a result of penetrating injury of the spleen. Injury No.(ii) was grievous in nature and sufficient to cause death. Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8) recorded dying declaration of Kuldeep Nirmal (PW-2) vide Ex.P-4 and another dying declaration of Lukesh Kumar Verma (PW-13) vide Ex.P-28. Head Constable Ram Sunder Tripathi (PW-30) prepared site-plan vide Ex.P-2 and Patwari Lalaram Sinha (PW-6), after inspection of the place of occurrence, also prepared site-plan vide Ex.P-3. In further investigation, disclosure statement (Ex.P-6) of appellant Ishwari Banwasi was recorded under Section 27 of the Evidence Act and at his instance, a Knife was seized vide Ex.P-7. Disclosure statement (Ex.P-8) of Shankarlal Chhedaiya was also recorded and at his instance, a Katari was seized vide Ex.P-9. An iron rod was seized from appellant Durgesh Tiwari vide Ex.P-10. Another iron rod was seized from appellant Raju alias Ramesh Kumar vide Ex.P-11. A Lathi (a piece of Bamboo) was seized from appellant Parmeshwar vide Ex.P-12 and another Lathi (a piece of Bamboo) was seized from appellant Amit Kumar vide Ex.P-13. Deceased Narendra Verma and injured Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13), Devendra Sapaha (PW-19) and Sunil Kumar Verma (PW-22) were sent for medical examination. The deceased and the injured persons were examined by Dr. S.K. Sahu (PW-7). He gave his report Ex.P-14 to P-19 and he also gave his query report vide Ex.P-22 to P-26A. Seized articles were sent for chemical examination to Director, State Forensic Science Laboratory, Raipur. He gave his report vide Ex.P-45. The deceased and the injured persons were examined by Dr. S.K. Sahu (PW-7). He gave his report Ex.P-14 to P-19 and he also gave his query report vide Ex.P-22 to P-26A. Seized articles were sent for chemical examination to Director, State Forensic Science Laboratory, Raipur. He gave his report vide Ex.P-45. Report of Serological is also received vide Ex.P-58. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session Judge, Durg, who conducted the trial and convicted and sentenced the appellants as mentioned above. 2. The learned Session Judge framed charges under Section 147, 148, 294, 323 read with Section 149 IPC, Section 324 read with Section 149 IPC, 307 read with Section 149 IPC and 302 read with Section 149 IPC against the appellants. In addition, charges under Sections 25 and 27 of the Arms Act were also framed against appellants Ishwari Banwasi and Shankarlal Chhedaiya. The appellants abjured the guilt. 3. In its support, the prosecution examined Upendra Verma (PW-1), who lodged the FIR (Ex.P-1), Kuldeep Nirmal (PW-2) (injured eye-witness), Devendra Verma (PW-3) (injured eye-witness), Domendra Verma (PW-4) (witness of memorandum and seizure), Pankaj Patel (PW-5) (witness of memorandum and seizure), Patwari Lala Ram Sinha (PW-6), Dr. S.K. Sahu (PW-7), who examined injured witnesses, Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8), who recorded dying declaration of Kuldeep Nirmal (PW-2) vide Ex.P-4 and another dying declaration of Lukesh Kumar Verma (PW-13) vide Ex.P-28, Head Constable Someshwar Nath Yogi (PW-9), Constable Uttam Soni (PW-10), Dr. Praveen Kumar (PW-11), Sunil Kumar Sen (PW-12) (eye-witness), Lukesh Kumar Verma (PW-13) (injured witness), Rajesh Verma (PW-14), Constable Hemlal (PW-15), Sanju Verma (PW-16) (eyewitness), Dr. R.P. Singh (PW-17), who examined Kuldeep Nirmal (PW-2), Dr. Rajeev Pal (PW-18), who also examined Kuldeep Nirmal (PW-2), Devendra Kumar Sapaha (PW-19) (injured witness), Ramesh Verma (PW-20) (eyewitness), Constable Biharilal (PW-21), Sunil Kumar Verma (PW-22) (eyewitness), Santosh Verma (PW-23) (eyewitness), R.K. Shrivastava (PW-24), Radheshyam Yadav (PW-25), Smt. Nilima Tirkey (PW-26), Inspector Prakash Soni (PW-27), Dr. A.K. Soni (PW-28), who conducted post mortem examination of the deceased, Assistant Sub-Inspector K.C. Das (PW-29), who prepared inquest, Assistant Sub-Inspector Ram Sunder Tripathi (PW-30) (Investigating Officer). In their defence, the appellants examined Ishwar Kumar Sinha (DW-1) and Sarju Markam (DW-2). 4. A.K. Soni (PW-28), who conducted post mortem examination of the deceased, Assistant Sub-Inspector K.C. Das (PW-29), who prepared inquest, Assistant Sub-Inspector Ram Sunder Tripathi (PW-30) (Investigating Officer). In their defence, the appellants examined Ishwar Kumar Sinha (DW-1) and Sarju Markam (DW-2). 4. After appreciation of evidence, the learned Session Judge, relying the evidence of eye-witnesses and injured witnesses, convicted and sentenced the appellants as mentioned above. 5. Shri Yashwant Tiwari, learned counsel for appellants Shankarlal Chhedaiya and Shatrughan Lal Dhimar argued that the formation of an unlawful assembly and the appellants being the members of the unlawful assembly were not established. It was also not established as to what was the common object of unlawful assembly. He further argued that the prosecution witnesses did not state anything against appellant Shatrughan Lal Dhimar. So far as appellant Shankarlal Chhedaiya is concerned, deceased Narendra Verma sustained one stab, one penetrating injury and two incised injuries. According to Dr. A.K. Soni (PW-28), injuries No.(i), (iii) and (iv) were simple injuries. He argued that the common object of the unlawful assembly was not to commit murder of deceased Narendra Verma or to assault the injured persons and someone on his own committed the above act; that would be an act committed on the part of the individual. Therefore, the learned Session Judge erred in law in convicting the appellants under the aforementioned sections of the IPC. He further argued that the prosecution utterly failed to prove the case beyond reasonable doubt against appellant Shatrughan Lal Dhimar. So far as appellant Shankarlal Chhedaiya is concerned, he would not be punishable under Section 302 IPC and even after admitting the entire case, he would be liable for punishment under Section 304 IPC. 6. Shri H.S. Ahluwalia, learned counsel for appellant Ishwari Banwasi adopted the arguments advanced by Shri Yashwant Tiwari, learned counsel for appellants Shankarlal Chhedaiya and Shatrughanlal Dhimar. 7. Smt. Fouzia Mirza, learned counsel for appellants Durgesh Tiwari, Raju alias Ramesh Kumar, Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam argued that the prosecution witnesses did not state anything against appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam. Requisition (Ex.P-37) for post mortem of the deceased does not contain names of appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam. She further argued that the deceased sustained stab, penetrating and incised wounds. Requisition (Ex.P-37) for post mortem of the deceased does not contain names of appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam. She further argued that the deceased sustained stab, penetrating and incised wounds. According to the prosecution witnesses, appellants Durgesh Tiwari and Raju alias Ramesh Kumar assaulted the deceased with iron rods. No contusion or lacerated wound was found on the body of the deceased. There was absolutely no evidence to show that who caused the murder of the deceased. Therefore, the learned Session Judge erred in law in convicting appellants Durgesh Tiwari, Raju alias Ramesh Kumar, Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam under Sections 147, 148, 323, 324, 307 and 302 with the help of Section 149 IPC. 8. Smt. Kiran Jain, learned counsel for appellant Ghanshyam Verma argued that the prosecution utterly failed to prove the guilt against appellant Ghanshyam Verma beyond reasonable doubt. 9. Learned counsel for the appellants also argued that all the eyewitnesses referred to above are wholly unreliable and the conviction based on the testimonies of these witnesses cannot be sustained. 10. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent opposed the arguments and supported the impugned judgment. He placed reliance on Dharnidhar Vs. State of Uttar Pradesh and others (2010) 7 SCC 759. 11. We have heard learned counsel for the parties at length and have perused the record of the session case. 12. Firstly, we shall consider whether there was an unlawful assembly and the appellants were members of the said assembly? If so, what was the common object of that assembly? 13. Section 149 IPC contemplates common object and Section 141 IPC defines an unlawful assembly. Section 141 IPC provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in Section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in Section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of Section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in Sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of Section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in Section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of Section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the acts provided in Section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of Section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in Section 149 IPC. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of Section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in Section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. It if is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of Section 149 IPC. 14. Upendra Verma (PW-1), Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Sunil Kumar Sen (PW-12), Lukesh Kumar Verma (PW-13) and Devendra Kumar Sapaha (PW-19) deposed that on 15th August, 2006, at about 8 P.M., the appellants were standing in front of Shourya Restaurant and abusing in filthy language. On hearing this, Narendra Verma (the deceased), Lukesh Kumar Verma (PW-13), Sunil Verma (PW-16), Devendra Verma (PW-3), Kuldip Nirmal (PW-2) and Devenera Sapha (PW-19), who were sitting inside the restaurant, came out of it and asked the accused persons as to why they were abusing, on which, appellant Ishwari, who was armed with a Knife, appellant Shankarlal Chhedaiya, who was armed with a Katari, appellants Durgesh Tiwari and Raju alias Ramesh Kumar, who were armed with iron rods, started assaulting the deceased. When Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13), Devendra Verma (PW-3) and Devendra Sapaha (PW-19) tried to intervene, the appellants started assaulting these witnesses. When Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13), Devendra Verma (PW-3) and Devendra Sapaha (PW-19) tried to intervene, the appellants started assaulting these witnesses. Appellant Shankarlal Chhedaiya assaulted the deceased with the Katari and appellant Ishwari Banwasi assaulted the deceased with the Knife. Appellant Ishwari Banwasi assaulted Lukesh Kumar Verma (PW-13) with the Knife, due to which, his intestines had come out of the abdomen. Appellants Durgesh Tiwari, Raju alias Ramesh Kumar also assaulted Kuldeep Nirmal (PW-2), Devendra Verma (PW-3) and Devendra Sapaha (PW-19). Other appellants also assaulted the deceased and injured witnesses with Lathi. 15. Sunil Kumar Sen (PW-12), Rajesh Verma (PW-14), Sanju Verma (PW-16), Ramesh Verma (PW-20), Sunil Kumar Verma (PW-22), Santosh Verma (PW-23) and Radheshyam Yadav (PW-25) also deposed that appellants Shankarlal Chhedaiya and Ishwari Banwasi assaulted the deceased with sharp edged weapons and they also assaulted Lukesh Kumar Verma (PW-13) with the same weapons. Appellants Raju alias Ramesh Kumar and Durgesh Tiwari assaulted the deceased and the injured witnesses with iron rods and the other appellants assaulted the deceased and the injured witness with the Lathi. 16. The above eye-witnesses and injured witnesses specifically deposed that deceased Narendra Verma alias Pappu sustained injury in left side of the chest and Lukesh Kumar Verma (PW-13) sustained injury on his ribs and his intestines had come out of the abdomen. They further stated that the deceased, Kuldeep Nirmal (PW-2) and Lukesh Kumar Verma (PW-13) were sent to Sector-9 Hospital, Bhilai for treatment, where deceased Narendra Verma alias Pappu was declared to be dead. 17. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280, the Hon'ble Supreme Court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes within a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. 18. In the instant case, Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13), Devendra Sapaha (PW-19) and Sunil Kumar Verma (PW-22) were injured in same incident, therefore, their presence at the place of occurrence cannot be doubted. Convincing evidence is required to discredit an injured witness. 18. In the instant case, Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13), Devendra Sapaha (PW-19) and Sunil Kumar Verma (PW-22) were injured in same incident, therefore, their presence at the place of occurrence cannot be doubted. Therefore, their testimonies cannot be doubted and due to some exaggerations and contradictions, their testimonies cannot be discarded in toto. 19. Dr. S.K. Sahu (PW-7) examined Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13) and Devendra Sapaha (PW-19) and gave his report Ex.P-14 to P-19. The evidence of above injured witnesses are duly corroborated by medical evidence. 20. Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8) deposed that he recorded statements of Kuldeep Nirmal (PW-2) vide Ex.P-4 and Lukesh Kumar Verma (PW-13) vide Ex.P-28 as dying declaration. However, since they survived, their statements cannot be treated as dying declaration, but have to be treated as superior quality/high degree statements than that of statements recorded under Section 161 Cr.P.C. and at best are to be treated only as statements recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. 21. Now, we shall see whether on the basis of the evidence of the above witnesses, it can be established that the appellants formed an unlawful assembly or they were members of the said assembly. 22. The FIR (Ex.P-1) was lodged by Upendra Verma (PW-1). He deposed that when he lodged the FIR (Ex.P-1), at that time, police had brought four persons to the police station. Those four persons disclosed the names of other persons. He deposed that he had witnessed six persons at the place of occurrence. He had not stated about accused Kishan having a Danda in his hand. He was not aware of name of accused Kishan. Kuldeep Nirmal (PW-2) deposed that accused Ishwari Banwasi was having a Knife, accused Shankarlal Chhedaiya was having a sharp edged weapon and accused Raju alias Ramesh Kumar was having an iron rod. Kuldeep Nirmal (PW-2) did not state anything about other accused/appellants. 23. Devendra Verma (PW-3) deposed that all the appellants were having Lathi, rod and knife, but he did not state specifically that which appellant had which weapon. He further deposed that he did not know the assailants by their names. He also deposed that the police had got the assailants identified in police station. 23. Devendra Verma (PW-3) deposed that all the appellants were having Lathi, rod and knife, but he did not state specifically that which appellant had which weapon. He further deposed that he did not know the assailants by their names. He also deposed that the police had got the assailants identified in police station. Sunil Kumar Sen (PW-12) deposed that he did not see that which appellant assaulted to which person and he also did not see the manner of assault. He further deposed that he was not aware of the assailants by their names even on the date of deposition before the Court. 24. Rajesh Verma (PW-14) deposed that appellants Ishwari Banwasi and Shankarlal Chhedaiya assaulted the deceased with sharp edged weapons. He further deposed that appellant Ishwari Banwasi assaulted Lukesh Kumar Verma (PW-13) with a sharp edged weapon and appellants Raju Kadra and Durgesh Tiwari assaulted Lukesh Kumar Verma (PW-13) with rod. This witness did not state specifically that which appellant assaulted which person. 25. Tahsildar/Executive Magistrate Pulalk Bhattacharya (PW-8) deposed that he recorded the statement of Kuldeep Nirmal (PW-2) vide Ex.P-4 and that of Lukesh Kumar Verma (PW-13) vide Ex.P-28 as their dying declarations. He further deposed that Kuldeep Nirmal (PW-2) and Lukesh Kumar Verma (PW-13) did not state names of assailants. Kuldeep Nirmal (PW-2) denied in his deposition about recording of his statement vide Ex.P-4. Lukesh Kumar Verma (PW-13) deposed that his dying declaration was recorded by Tahsildar and he also admitted his signatures on Ex.P-28. He deposed that he had disclosed the names of only three assailants. Ex.P-4 does not contain name of any assailant. 26. Dr. S.K. Sahu (PW-7) deposed that Ex.P-14 to P-19 does not contain names of appellants Kishan Markam and Ghanshyam Verma. He deposed that injured Devendra Sapaha (PW-19), Sunil Kumar Verma (PW-22), deceased Narendra Verma, Devendra Verma (PW-3), Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13) did not disclose him names of the persons assaulted them. 27. Head Constable Someshwar Nath Yogi (PW-9), who had recorded the FIR (Ex.P-1) and had sent the injured witnesses to the hospital for their medical examination, deposed that injured Devendra Sapaha (PW-19), Sunil Kumar Verma (PW-22), deceased Narendra Verma, Devendra Verma (PW-3), Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13) did not disclose him name of appellants Hemant Kumar and Shatrughan. 28. In Dharnidhar Vs. State of Uttar Pradesh and others (2010) 7 SCC 759. 28. In Dharnidhar Vs. State of Uttar Pradesh and others (2010) 7 SCC 759. (supra), the Hon'ble Supreme Court held that the principles controlling the application of provisions of Section 149 IPC have been quite well settled by now. Years back, the Bench of this Court in Masalti Vs. U.P. AIR 1965 SC 202, declared the dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by Section 141 IPC. The crucial question to be determined in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot eo instanti. (Maranadu Vs. State (2008) 16 SCC 529 29. In Muthu Naicker and others, etc. Vs. State of Tamil Nadu AIR 1978 SC 1647, while dealing the matter in relation to unlawful assembly, the Hon'ble Supreme Court held that where there is melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. The Hon'ble Supreme Court held that in a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one's eyes to the realities of the rural life in our country. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Reference was also made to decision of Masalti Vs. U.P.3. 30. In the instant case, the learned Session Judge, in paragraph 28 of the impugned judgment, has held that the appellants were members of the unlawful assembly, they participated in the riot and assaulted the injured persons and the deceased. 31. We are unable to sustain the above findings recorded by the learned Session Judge. The evidence would show that the incident took place in front of Shourya Restaurant, where a mob was present. Upendra Verma (PW-1) admitted in his deposition that the day of incident was a market day and there was a crowd in the market in which the incident took place. Presence of the appellants at the place of occurrence, being residents of same village, was natural. Mere presence at a public place or even near an unlawful assembly cannot render a person liable for common object unless there is a positive evidence that he was member of the unlawful assembly. The prosecution has not been able to prove overt act of unarmed appellants. Therefore, it is not proved that all the appellants were members of unlawful assembly having a common object to commit murder of the deceased. 32. The injured witnesses have mentioned names of only four assailants, i.e., Shankarlal Chhedaiya, Ishwari Banwasi, Raju Kadra alias Ramesh Kumar and Durgesh Tiwari. What act was done by other appellants and in which manner, those are not deposed by any of the prosecution witnesses. According to prosecution witnesses, appellants Parmeshwar Kumar, Amit Kumar, Ghanshyam Verma, Kishan Markam and Shatrughanlal Dhimar were unarmed, appellants Ishwari Banwasi and Shankarlal Chhedaiya were armed with sharp edged weapons and appellants Raju alias Ramesh Kumar and Durgesh Tiwari were armed with iron rods. 33. According to prosecution witnesses, appellants Parmeshwar Kumar, Amit Kumar, Ghanshyam Verma, Kishan Markam and Shatrughanlal Dhimar were unarmed, appellants Ishwari Banwasi and Shankarlal Chhedaiya were armed with sharp edged weapons and appellants Raju alias Ramesh Kumar and Durgesh Tiwari were armed with iron rods. 33. Ram Sunder Tripathi (PW-30) deposed that he recorded disclosure statement (Ex.P-6) of appellant Ishwari Banwasi and at his instance, a Chakoo was seized vide Ex.P-7. He further stated that disclosure statement (Ex.P-8) of appellant Shankarlal Chhedaiya was also recorded and at his instance, a Katari was seized vide Ex.P-9. His evidence is duly corroborated by the evidence of Domendra Verma (PW-4). From their evidence, it is established that Chakoo was seized from appellant Ishwari Banwasi and Katari was seized from appellant Shankarlal Chhedaiya. From the evidence of the eye-witnesses and the injured witnesses, it is proved that the two appellants, namely, Ishwari Banwasi and Shankarlal Chhedaiya caused injuries to the deceased and the deceased succumbed to the injuries caused by them. There is no evidence available on record which could show that other appellants caused any injury to the deceased. It is also manifest that appellant Ishwari Banwasi assaulted Lukesh Kumar Verma (PW-13) with a sharp edged weapon and caused grievous injury on his person, which was fatal to his life. Appellants Dugesh Tiwari and Raju alias Ramesh Kumar caused injuries to the other injured witnesses. There is no cogent evidence available on record regarding causing injuries by other appellants to the deceased or the injured witnesses with any weapon. 34. So far as offences under Sections 25 and 27 of the Arms Act are concerned, the prosecution has failed to establish the same against appellants Ishwari Banwasi and Shankarlal Chhedaiya. 35. On due appreciation of entire material, we find that there is no positive evidence to show that the appellants formed any unlawful assembly and also that they participated in the riot. The evidence of Upendra Verma (PW-1), Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Sunil Kumar Sen (PW-12), Lukesh Kumar Verma (PW-13), Rajesh Verma (PW-14), Sunil Kumar Verma (PW-22) are shaky on the part of common object. Hence, the finding in relation to formation of an unlawful assembly and participation in the riot is unsustainable. 36. After appreciation of the evidence of Upendra Verma (PW-1), other injured witnesses, Someshwar Nath Yogi (PW-9) and Dr. Hence, the finding in relation to formation of an unlawful assembly and participation in the riot is unsustainable. 36. After appreciation of the evidence of Upendra Verma (PW-1), other injured witnesses, Someshwar Nath Yogi (PW-9) and Dr. S.K. Sahu (PW-7), it appears that only appellants Shankarlal Chhedaiya, Ishwari Banwasi, Raju alias Ramesh Kumar and Durgesh Tiwari were armed with weapons. Upendra Verma (PW-1), Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13), Rajesh Verma (PW-14), Devendra Kumar Sapaha (PW-19) and Sunil Kumar Verma (PW-22) deposed that only appellants Shankarlal Chhedaiya and Ishwari Banwasi had assaulted the deceased with sharp edged weapons. Dr. A.K. Soni (PW-28) also found injuries of only sharp edged weapons. No lacerated wound or contusion was found on the dead body of the deceased. No injury of any hard and blunt object was found. In this situation, it is evident that only appellants Shankarlal Chhediaya and Ishwari Banwasi caused injuries to the deceased and the deceased succumbed to the injuries caused by them. There is no clinching and dependable evidence on record which may show that appellants Raju alias Ramesh Kumar and Durgesh Tiwari assaulted the deceased. From the above evidence, it is also not proved that appellants Raju alias Ramesh Kumar and Durgesh Tiwari intended to commit murder of the deceased. They assaulted only Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13), Devendra Kumar Sapaha (PW-19). 37. On medical examination, Dr. S.K. Sahu (PW-7) found injuries present on the persons of Devendra Verma (PW-3), Sunil Kumar Verma (PW-22), Devendra Kumar Sapaha (PW-19) to be simple. He had referred Kuldeep Nirmal (PW-2) and Lukesh Kumar Verma (PW-13) to Sector-9 Hospital, Bhilai for further treatment of their injuries. Alt these witnesses had sustained single injury on their person except Kuldeep Nirmal (PW-2), who sustained two injuries simple in nature. 38. From the above discussion, we find that the prosecution has not been able to establish that the appellants were members of unlawful assembly and has also not been able to prove their participation in the riot Therefore, conviction of the appellants under Sections 147 and 148 IPC is unsustainable. Hence, we set aside the above finding of the learned Session Judge. 39. Hence, we set aside the above finding of the learned Session Judge. 39. We further find that the prosecution has not been able to prove that appellants Ghanshyam Verma, Parmeshwar Kumar, Amit Kumar Markam, Kishan Markam, Hemant Kumar and Shatrughan Lal Dhimar formed any unlawful assembly and in furtherance of any common object of unlawful assembly, they assaulted the injured persons and committed murder of the deceased. Therefore, their conviction and sentence awarded by the learned Session Judge are unsustainable and they deserve acquittal from the charges framed against them. 40. From the above evidence, it is crystal clear that appellants Shankarlal Chhedaiya and Ishwari Banwasi assaulted the deceased and the deceased succumbed to the injuries caused by them. Now, we shall examine the matter regarding appellants Shankarlal Chhedaiya and Ishwari Banwasi in light of the provisions of Section 302 vis-a-vis Section 304 of the Indian Penal Code. 41. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. 42. In the instant case, appellants Shankarlal Chhedaiya and Ishwari Banwasi assaulted the deceased with sharp edged weapons. The deceased sustained (i) stab wound, 2cms x 1cm x 3cms on the left side of the chest, 3cms lateral from the left nipple, (ii) penetrating wound, 21/2cms x 1cm x deep in abdominal cavity on left side of the chest between 9th and 10th ribs, (iii) stab wound, 1cm x 1/2cm x 2cms, left side of the back, (iv) incised wound, 1cm x 1/2cm x bone deep, below the left eye. Cause of the death was shock due to excessive haemorrhage as a result of penetrating injury of the spleen. Injury No.(ii) was grievous in nature and sufficient to cause death. It is evident that the death was homicidal in nature. The injuries which deceased Narendra Verma suffered clearly show that sharp edged weapons were used by appellants Shankarlal Chhedaiya and Ishwari Banwasi with a considerable force and injuries were caused on the vital parts of the body. 43. The nature of weapons used by appellants Shankarlal Chhedaiya and Ishwari Banwasi, the manner in which they assaulted the deceased, severity of the blow they dealt against the deceased and the part of the body which they selected for giving such blows would show that they had an intention to commit murder of the deceased. We are of the considered opinion that in the above facts and circumstances, the act of appellants Shankarlal Chhedaiya and Ishwari Banwasi would not be falling under any exception to Section 300 IPC and the present cannot be said to be culpable homicide not amounting to murder. 44. Therefore, appellants Shankarlal Chhedaiya and Ishwari Banwasi are liable for punishment under Section 302 read with Section 34 IPC. 44. Therefore, appellants Shankarlal Chhedaiya and Ishwari Banwasi are liable for punishment under Section 302 read with Section 34 IPC. Since the prosecution has not been able to prove charges against appellants Shankarlal Chhedaiya and Ishwari Banwasi under Sections 25 and 27 of the Arms Act, therefore, their conviction and sentence thereunder are set aside. Criminal Appeal No. 475/2008 : 45. For the foregoing reasons, Criminal Appeal No. 475/2008 in respect of appellant Ghanshyam Verma is allowed. His conviction and sentence under Sections 147, 148, 302/149, 323/149, 324, 323, 324, 307 IPC are set aside. He is acquitted of the charges framed against him. At present, he is on bail. His bail bond is cancelled and surety stands discharged. Criminal Appeal No. 476/2008 : 46. Criminal Appeal No. 476/2008 in respect of appellant Ishwari Banwasi is partly allowed. His conviction and sentence under Sections 147 and 148 IPC and under Sections 25 and 27 of the Arms Act are set aside. Instead of Sections 302/149 IPC, he is convicted under Section 302 read with Section 34 IPC and his conviction under Sections 323, 324, 323, 324, 307 IPC is affirmed. He is sentenced to undergo imprisonment for life with a fine of Rs. 1,000/-, in default, to undergo R.I. for one month under Section 302 read with Section 34 IPC. Rest of the sentences awarded to him by the impugned judgment is maintained. It is directed that the sentences awarded to him shall run concurrently. Criminal Appeal No. 479/2008 : 47. Criminal Appeal No. 479/2008 in respect of appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam is allowed. Their conviction and sentence under Sections 147, 148, 302/149, 323/149, 324, 323, 324, 307 IPC are set aside. They are acquitted of the charges framed against them. At present, they are on bail. Their bail bonds are cancelled and sureties stand discharged. So far as appellant Raju alias Ramesh Kumar is concerned, his appeal is partly allowed. His conviction and sentence under Sections 147, 148, 302/149 and 307 IPC are set aside. He is acquitted of the above charges framed against him, but his conviction and sentence under Sections 323, 324, 323, 324 IPC are maintained. It is directed that the sentences awarded to him shall run concurrently. It is stated that he is in jail since 16-8-2006 till date, i.e., he has suffered jail sentence for more than five years. He is acquitted of the above charges framed against him, but his conviction and sentence under Sections 323, 324, 323, 324 IPC are maintained. It is directed that the sentences awarded to him shall run concurrently. It is stated that he is in jail since 16-8-2006 till date, i.e., he has suffered jail sentence for more than five years. Criminal Appeal No. 547/2008 : 48. Criminal Appeal No. 547/2008 in respect of appellant Hemant Kumar is allowed. His conviction and sentence under Sections 147, 148, 302/149, 323/149, 324, 323, 324, 307 IPC are set aside. He is acquitted of the charges framed against him. At present, he is on bait. His bail bond is cancelled and surety stands discharged. Criminal Appeal No. 578/2008 : 49. Criminal Appeal No. 578/2008 in respect of appellant Shatrughan Lal Dhimar is allowed. His conviction and sentence under Sections 147, 148, 302/149, 323/149, 324, 323, 324, 307 IPC are set aside. He is acquitted of the charges framed against him. At present, he is on bail. His bail bond is cancelled and surety stands discharged. The appeal on behalf of appellant Shankarlal Chhedaiya is partly allowed. His conviction and sentence under Sections 147, 148 and 307 IPC and under Sections 25 and 27 of the Arms Act are set aside. Instead of Sections 302/149 IPC, he is convicted under Section 302 read with Section 34 IPC and his conviction under Sections 323, 324, 323, 324 IPC is affirmed. He is sentenced to undergo imprisonment for life with a fine of Rs. 1,000/-, in default, to undergo R.I. for one month under Section 302 read with Section 34 IPC. Sentences awarded to him under Sections 323, 324, 323, 324 IPC are maintained. It is directed that the sentences awarded to him shall run concurrently. Criminal Appeal No. 709/2008 : Criminal Appeal No. 709/2008 in respect of appellant Durgesh Tiwari is partly allowed. His conviction and sentence under Sections 147, 148, 302/149 and 307 IPC are set aside. He is acquitted of the above charges framed against him, but his conviction and sentence under Sections 323, 324, 323, 324 IPC are maintained. It is directed that the sentences awarded to him shall run concurrently. It is stated that he is in jail since 16-8-2006 till date, i.e., he has suffered jail sentence for more than five years.