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2012 DIGILAW 226 (CHH)

ASHOK CHOUHAN v. STATE OF C. G.

2012-09-04

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J.- 1. This appeal is directed against judgment dated 13-09-2005 passed by Sessions Judge, Raigarh in Sessions Trial No.72/2004. By the impugned judgment, accused persons/appellants Ashok Chouhan and Bhawani Chouhan have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 302 IPC Imprisonment for life and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 10 months Under Section 302/34 IPC Imprisonment for life and to pay fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for 10 months Under Section 323 IPC Rigorous Imprisonment for 1 year and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month Under Section 323 IPC Rigorous Imprisonment for 1 year and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month Under Section 323/34 IPC Rigorous Imprisonment for 6 months and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month Under Section 323/34 IPC Rigorous Imprisonment for 6 months and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month 2. Case of the prosecution, in brief, is as under: Manager @ Maniram (PW-1) was residing along with his wife Chamelibai (PW-7), son Kaneshwar (deceased), Guddu (PW-2) and other family members behind Raigarh Jail. Appellant Ashok Chouhan was neighbourer of Manager @ Maniram (PW-1). There was old enmity between the family members of Manager @ Maniram (PW-1) and appellant Ashok Chouhan and a case was also pending in a Court. On 05-03-2004, Ramdular and appellant Bhawani Chouhan made statements against Manager @ Maniram (PW-1) in the Court. On this account, deceased Kaneshwar had abused the appellants. On 07-032004, at about 1:30 am, the appellants threw stones on the house of Manager @ Maniram (PW-1). Manager @ Maniram (PW-1) and his son Guddu (PW2) came out of the house. As soon as they came out of the house, the appellants assaulted them with Lathi and Tangi (axe). Appellant Ashok Chouhan was armed with Tangi and appellant Bhawani Chouhan was armed with Lathi. They assaulted deceased Kaneshwar with the Tangi and Lathi. Manager @ Maniram (PW-1) and his son Guddu (PW2) came out of the house. As soon as they came out of the house, the appellants assaulted them with Lathi and Tangi (axe). Appellant Ashok Chouhan was armed with Tangi and appellant Bhawani Chouhan was armed with Lathi. They assaulted deceased Kaneshwar with the Tangi and Lathi. The deceased succumbed to the injuries on the spot. Manager @ Maniram (PW-1) and Guddu (PW-2) also sustained injuries. The incident was witnessed by Chamelibai (PW-7), Rambhabai (PW-8) and Sarita (PW-3). Manager @ Maniram (PW-1) lodged First Information Report (Ex.P-1) in Police Station Kotwali, Raigarh where Crime No. 152/2004 for offence under Section 302/34 was registered against the appellants. Merg-intimation (Ex.P-21) was also recorded. Manager @ Maniram (PW-1) and Guddu (PW-2) were sent to Kirodimal Government Hospital, Raigarh for medical examination. Dr. Anil Kumar Kushwaha (PW-10) examined injured Guddu (PW-2) and gave his report (Ex.P-15) in which he found- (i) lacerated wound with bleeding, 8 x 3 x 1 cm on right occipital region of scalp (ii) lacerated wound with bleeding, 2 x 1 x 0.5 cm on lateral to outer angle of left eye (iii) Contusion, 4 x 3 cm on right elbow. He opined that the injures were caused by hard and blunt object. He also examined Manager @ Maniram (PW-1) and gave his report (Ex.P-16) in which he found- (i) lacerated wound with bleeding, 2.5 x 2 x 1 cm on right shoulder (ii) lacerated wound with bleeding, 2.6 x 1 x 0.5 cm on left forearm The Investigating Officer reached the place of occurrence and prepared inquest (Ex.P-22) on the dead body of the deceased. The dead body of the deceased was sent for post mortem examination to Kirodimal Government Hospital, Raigarh. Dr. P.K. Mihsra (PW-9) conducted autopsy on the dead body of the deceased and gave his report (Ex.P-20) in which he found - (i) incised wound, 4 x 2 cm on upper part of left hand, margin clean cut and semicircular (ii) incised wound, 4 x 1 cm on left side of neck (iii) lacerated wound on left fronto-parietal region (iv) contusion was present on left region of the head (v) fracture was present on left frontal bone of the skull He opined that the cause of death was coma due to head injury and the death was homicidal in nature. In further investigation, memorandum statement of appellant Ashok Chouhan was recorded under Section 27 of the Evidence Act vide Ex.P-3 and at his instance Tangi was seized vide Ex.P-7. Memorandum statement of appellant Bhawani Chouhan was also recorded under Section 27 of the Evidence Act vide Ex.P-4 and at his instance Bahinga was seized vide Ex.P-8. Talwar (Sword), pieces of bricks and cement were seized from the place of occurrence vide Ex.P-5, which were stained with blood. Plain soil and blood stained soil were seized from the place of occurrence vide Ex.P-6. Shirt of appellant Ashok Chouhan was seized vide Ex.P-9 and shirt and pant of appellant Bhawani Chouhan were seized vide Ex.P-10. Site map (Ex.P-23) was prepared. The seized articles were sent to Forensic Science Laboratory, Raipur. FSL Report was received therefrom. After completion of the investigation, charge sheet was filed against the appellants in the Court of Chief Judicial Magistrate, Raigarh, who, in turn, committed the case to the Court of Sessions Judge, Raigarh, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Shri. N.K. Mehta, learned counsel for the appellants argued that Manager @ Maniram (PW-1), who lodged the FIR, did not support the case of the prosecution. Guddu (PW-2) also did not support the case of the prosecution. Chamelibai (PW-7) and Rambhabai (PW-8) are interested witnesses. Their evidence is not reliable. There are many material contradictions in their statements. There is no clinching and reliable evidence against the appellants. Thus, conviction of the appellants is not sustainable and the appellants deserve to be acquitted. 4. Smt. Madhunisha Singh, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the leaned Sessions Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No.72/2004. The conviction of the appellants is based on the evidence of Chamelibai (PW-7) and Rambhabai (PW-8). Manager @ Maniram (PW-1) did not support the case of the prosecution and Guddu (PW-2) supported the case of the prosecution to some extent only. 6. In Namdeo Vs. State of Maharashtra (2007) 14 SCC 150 , the Hon'ble Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. 6. In Namdeo Vs. State of Maharashtra (2007) 14 SCC 150 , the Hon'ble Supreme Court held that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. It is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be a particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. 7. In Dharnidhar Vs. State of Uttar Pradesh and other (2010) 7 SCC 759 , the Hon'ble Supreme Court held as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. ..... 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., (2010) 1 SCC 722 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 8. In Brahm Swaroop and another Vs. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 8. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280 , the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. ........." 9. In Waman and others Vs. State of Maharashtra (2011) 7 SCC 295 , the Hon'ble Supreme Court held as follows: "17. In Balraje v. State of Maharashtra, (2010) 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. ...... 19. "29. ..... The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673 .)" 10. It is not disputed that Rambhabai (PW-8) is widow and Chamelibai (PW-7) is mother of the deceased. It is not the law that the evidence of an interested witness should be equated with that of a tainted witness or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the Court is satisfied that the evidence of the interested witness has a ring of truth, such evidence could be relied upon even without corroboration. The fact of being a relative cannot by itself discredit the evidence. When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope-in innocent persons. In the instant case, the prosecution examined Manager @ Maniram (PW-1), Guddu (PW-2), Chamelibai (PW-7) and Rambhabai (PW-8) as eye-witnesses. The prosecution also examined Sarita (PW-3) as an eye-witness, but she turned hostile and did not support its case. 11. Guddu (PW-2) deposed that on the day of Holi festival, he was sleeping in his house after taking meal. At about 2 am, the appellants threw stones on his house. He and his father Manager @ Maniram (PW-1) came out of the house. They saw that the appellants were armed with Talwar (Sword) and Danda. He further deposed that the appellants assaulted him. He sustained injury on his head, right hand and back. 12. At about 2 am, the appellants threw stones on his house. He and his father Manager @ Maniram (PW-1) came out of the house. They saw that the appellants were armed with Talwar (Sword) and Danda. He further deposed that the appellants assaulted him. He sustained injury on his head, right hand and back. 12. Chamelibai (PW-7) and Rambhabai (PW-8) deposed that on the day of Holi festival, at about 2 a.m., the appellants were causing damage to their roof. At that time, the appellants were armed with Tangi and Danda. They further deposed that the appellants assaulted Manager @ Maniram (PW-1) and Guddu (PW-2). Manager @ Maniram (PW-1) and Guddu (PW-2) ran away. Thereafter, the appellants entered the house and assaulted deceased Kaneshwar and the deceased died due to injuries sustained by him. 13. Manager @ Maniram (PW-1) and Deputy Superintendent of Police P.C. Sonkar (PW-13) deposed that Manager @ Maniram (PW-1) lodged FIR (Ex.P-1) and Merg Intimation (Ex.P-21) in Police Station Kotwali, Raigarh. Injured Manager @ Maniram (PW-1) and Guddu (PW-2) were sent to Kirodimal Government Hospital, Raigarh for medical examination. Dr. Anil Kumar Kushwaha (PW-10) examined them and gave his report (Ex.P-16 and P-15, respectively). 14. Dr. P.K. Mishra (PW-9) deposed that he conducted autopsy on the dead body of the deceased and gave his report (Ex.P-20), in which, he found fracture on left frontal bone. He opined that the cause of death of the deceased was coma due to head injury and the death was homicidal in nature. 15. Manager @ Maniram (PW-1) did not support the case of the prosecution. Sarita (PW-3), who was neighbourer of Manager @ Maniram (PW-1) also did not support the case of the prosecution. Guddu (PW-2), who is brother of the deceased supported the case of the prosecution to some extent only, but Rambhabai (PW-8), who is wife of the deceased and Chamelibai (PW-7), who is mother of the deceased deposed in clear words that the appellants entered their house and assaulted the deceased and the deceased died on the spot. Their evidence is corroborated by medical evidence too. 16. We have also perused the medical evidence. The doctor opined that the cause of death of the deceased was coma due to head injury and the death was homicidal in nature. Their evidence is corroborated by medical evidence too. 16. We have also perused the medical evidence. The doctor opined that the cause of death of the deceased was coma due to head injury and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the learned Sessions Judge that the appellants had caused injuries on the body of the deceased with Tangi and Lathi and the deceased died on account of the injuries caused by the appellants and the appellants assaulted Manager @ Maniram (PW-1) and Guddu (PW-2). 17. We shall consider whether there was any common intention on the part of the appellants and in furtherance thereof, they committed murder of the deceased. 18. It is well known that to establish the common intention of several persons so as to attract the mischief of Section 34 IPC, the following two fundamental facts have to be established: (i) common intention to commit an offence and (ii) participation of the accused in commission of the offence. To attract Section 34 IPC, it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared common intention to commit the offence in furtherance thereof and each one played his assigned role by doing separate acts, similar or diverse. Section 34 IPC is applicable even if no injury has been caused by the particular accused himself For applying Section 34 IPC, it is not necessary to show some overt act on the part of the accused. 19. In the instant case, the appellants, armed with Tangi and Lathi, came in front of the house of the deceased and threw stones on roof of the house of Manager @ Maniram (PW-1). When Manager @ Maniram (PW-1) and Guddu (PW-2) came out of the house, the appellants assaulted them, due to which, they ran away. Thereafter, the appellants entered the house and assaulted the deceased and the deceased sustained head injury and succumbed to the injuries. From the above, it is apparent that the role played by the appellants, was with a view to achieve the ultimate objective of killing the deceased. 20. Shri N.K. Mehta, learned counsel for the appellants argued that the appellants were provoked by the deceased. There was a severe exchange of abuse between the appellants and the deceased. From the above, it is apparent that the role played by the appellants, was with a view to achieve the ultimate objective of killing the deceased. 20. Shri N.K. Mehta, learned counsel for the appellants argued that the appellants were provoked by the deceased. There was a severe exchange of abuse between the appellants and the deceased. Therefore, the act of the appellants would not be punishable under Section 302 of the Indian Penal Code and they would be guilty for the offence punishable under Section 304 of the Indian Penal Code. 21. In Gurudev Singh Vs. State of Madhya Pradesh (2011) 5 SCC 721 , the Hon'ble Supreme Court held as follows: "25. With regard to this plea of the accused it seems that Exceptions 1 and 4 to Section 300 IPC are sought to be taken advantage of by the accused in this case. For dealing with such plea raised on behalf of the accused person we may extract the said exceptions to Section 300 IPC, which are as under: "Exception 1. When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." * * * "Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner." 26. With regard to law dealing with Exception 1 to Section 300 we may refer to K.M Nanavati v. State of Maharashtra, AIR 1962 SC 605 (AIR p. 626, para 77) in which this Court held that the following conditions must be complied with for the application of Exception 1 to Section 300 IPC : (1) the deceased must have given provocation to the accused, (2) the provocation must be grave, (3) the provocation must be sudden, (4) the offender, by reason of the said provocation, shall have been deprived of his power of self-control, (5) he should have killed the deceased during the continuance of the deprivation of the power of self-control, and (6) the offender must have caused the death of the person who gavel the provocation or that of any other person by mistake or accident." 27. With regard to Exception 4 to Section 300 we may refer to Kulesh Mondal v. State of W.B., (2007) 8 SCC 578 , in which this Court held: (SCC p. 581, paras 12-13) "12. The residuary plea relates to the applicability of Exception 4 to Section 300 IPC, as it is contended that the incident took place in course of a sudden quarrel. 13. For bringing it in operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner." 28. In Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404 , this Court detailed the law relating to Exceptions 1 and 4 to Section 300 IPC in the following terms: (SCC pp. 410-11, paras 17-19) 17. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first Exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. 18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the, beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan, (1993) 4 SCC 238 , it was• held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage." 22. In Arun Raj Vs. Union of India and other (2010) 6 SCC 457 , the Hon'ble Supreme Court has held thus: "17. The scope of the "doctrine of provocation" was stated by Viscount Simon in Mancini v. Director of Public Prosecutions, 1942 AC 1 : (AC p. 9) "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death. ... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in R. v. Lesbini, (1914) 3 KB 1116 (CCA), so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." 23. The determinative factor in Section 300 of the Indian Penal Code is the intentional injury, which must be sufficient to cause death in the ordinary course of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender's subjective knowledge of the consequence is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury, which in the ordinary course of nature was sufficient to cause death, the divorce factors need to be kept in mind such as the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attended upon the death. 24. In the instant case, the defence of the appellants that this case is covered under one of the above Exceptions to Section 300 of the Indian Penal Code is not supported by the evidence on record. On going through the evidence on record, we find that the provocation did not come from the deceased. The appellants came in front of the house of the deceased, threw stones on the roof of the house, entered the house and assaulted the deceased and gave Tangi and Lathi blows on his head. Fracture on frontal bone of the skull and some incised wounds were found on the body of the deceased. The injuries, which the deceased suffered, clearly shows that the sharp portion of the Tangi was used by one of the appellants with considerable force and injuries were caused on the vital part of the body. 25. Fracture on frontal bone of the skull and some incised wounds were found on the body of the deceased. The injuries, which the deceased suffered, clearly shows that the sharp portion of the Tangi was used by one of the appellants with considerable force and injuries were caused on the vital part of the body. 25. The nature of weapon used by the appellants, the manner in which they assaulted the deceased, severity of the blows they dealt against the deceased and the part of body which they selected for giving such blows would show that they had intention to commit murder of the deceased and also to assault Manager @ Maniram (PW-1) and Guddu (PW-2). 26. We are of the considered opinion that in the above facts and circumstances, the act of the appellants would not be falling under any Exception to Section 300 of the Indian Penal Code. We accordingly hold that the conviction of the appellants for the offence under Section 302 read with Section 34 IPC is fully justified. 27. The learned Sessions Judge has convicted and sentenced the appellants under Sections 302, 302/34, 323, 323, 323/34 and 323/34 IPC. 28. We have discussed above that the appellants shared common intention and in furtherance thereof, they assaulted the deceased and committed his murder and caused injuries to Manager @ Maniram (PW-1) and Guddu (PW-2). Therefore, the appellants are convicted only under Sections 302/34, 323/34 and 323/34 IPC. The learned Sessions Judge sentenced the appellants under Sections 302 and 302/34 IPC which is not correct. The appellants are only liable for punishment under Sections 302/34, 323/34 and 323/34 IPC. 29. In the result, the conviction awarded to the appellants in the above manner is set aside. Instead thereof, they are convicted under Sections 302/34, 323/34 and 323/34 IPC. The sentences awarded to the appellants under Sections 302/34, 323/34 and 323/34 IPC are affirmed. With the above short modification, the appeal is dismissed. Appeal Dismissed.