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2012 DIGILAW 230 (CHH)

RAMYADAV v. STATE OF C. G.

2012-09-06

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 3-3-2008 passed by 9th Additional Sessions Judge (F.T.C.). Raipur in Sessions Trial No.304/2006. By the impugned judgment accused/appellant Ram Yadav has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 148 IPC Rigorous Imprisonment for 1 year Under Section 302/149 IPC Imprisonment for life and to pay fine of Rs.200/-, in default of payment of fine, to further undergo imprisonment for 10 days 2. Co-accused Govind Nihal was also convicted and sentenced by the impugned judgment in the same manner as mentioned above, but no appeal has been preferred by him. 3. Case of the prosecution, in brief, is as under: Deceased Ashok Kumar Pandey, Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) were engaged in Hora Complex, Shyam Nagar, Raipur as Security Guards. On 22-12-2005, they were discharging their duties in the complex since 8 P.M. At that time, the deceased was possessing a gun of 12 bore and Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) were possessing Lathi. They were sitting around the fire. At about 1 A.M., the appellant, the co-accused and 4 other persons armed with knives, came there. They threatened the deceased and snatched his gun. When the deceased tried to extricate his gun from them, one of them assaulted the deceased on the thigh with a knife. Rest of them committed Marpeet with Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4). The deceased succumbed to the injuries on the spot. Amar Bahadur Singh (PW-2) informed about the incident to the Security Officer Ganga Prasad Sharma (PW-3). Ganga Prasad Sharma (PW3) reached the place of occurrence. Amar Bahadur Singh (PW-2) lodged First Information Report (Ex.P-8) in Police Station Telib:mdha, Raipur. The Investigating Ofticer reached the place of occurrence, gave notice (Ex.P-3) to Panchas and prepared inquest (Ex.P-4) on the dead body of the deceased. The dead body of the deceased was sent to Medical College Hospital, Raipur for post mortem examination vide Ex.P-15A. Dr. Vikas Kumar Dhruw (PW-8) conducted post mortem on the dead body of the deceased and gave his report (Ex.P-16). He also gave his short-report (Ex.P-I9). In Ex.P-16, he found- (i) Stab wound on left thigh, lateral aspect situated 24cms. below anterior superior iliac spine, 2.8cms.x 1cm. Dr. Vikas Kumar Dhruw (PW-8) conducted post mortem on the dead body of the deceased and gave his report (Ex.P-16). He also gave his short-report (Ex.P-I9). In Ex.P-16, he found- (i) Stab wound on left thigh, lateral aspect situated 24cms. below anterior superior iliac spine, 2.8cms.x 1cm. oblique, vertical, upper end broad and lower and narrow, margins clean cut and red and red clotted blood was present at margins and its surroundings track is 12cms. deep posterior to femur bone, femoral vein and femoral artery having sharp cut, effect through and through, whole track was red in colour ecchymosed; direction was lateral to medial and below upwards. (ii) Stab wound on left gluteal region, 5cms. below waist, 2.8cms.1 cm., oblique, vertical upper end broad and lower end narrow, margins clean cut and red in colour. It was situated 5cms. left to mid line. Track was going towards posterior part of sacrum at mid and having sharp cut effect. Total length of track was 11 cms. and direction was posterior to anterior, left to right and below upwards. Dry, red clotted blood was present at the margins and its surroundings and flow mark was from above downwards. Internally the injury was identical in character in both injuries. He opined that the injuries were caused with hard and sharp object within 24 hours prior to the death. He further opined that the death was due to shock and haemorrhage as a result of multiple stab wounds to the body and it was homicidal in nature. In further investigation, memorandum statement of co-accused Govind Nihal was recorded under Section 27 of the Evidence Act vide Ex.P-1 and at his instance, a knife was seized vide EX.P-2. 12 Bore Gun of the deceased, Lathi, HMT Wrist Watch, blood stained soil and plain soil were seized from the place of occurrence vide EX.P-6. The appellant and the co-accused were arrested. Test Identification Parade was conducted by Additional Tahsildar/ Executive Magistrate O.p. Kosariya (PW -10) vide EX.P-7. Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) identified the appellant and the co-accused. Licence of the gun was seized vide EX.P-11. Site-Map (Ex.P-5) was prepared. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide EX.P-22. Test Identification Parade was conducted by Additional Tahsildar/ Executive Magistrate O.p. Kosariya (PW -10) vide EX.P-7. Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) identified the appellant and the co-accused. Licence of the gun was seized vide EX.P-11. Site-Map (Ex.P-5) was prepared. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide EX.P-22. After completion of the investigation, charge sheet was filed against appellant Ram Yadav and co-accused Govind Nihal in the Court of Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Session, Raipur. It was received on transfer by 9th Additional Sessions Judge (ET.C.), Raipur, who conducted the trial and convicted and sentenced the appellant and the co-accused as mentioned above. 4. Shri Shrawan Kumar Agrawal, learned counsel for the appellant argued that formation of an unlawful assembly and the appellant being a member of the unlawful assembly are not established by the prosecution. It is also not established that what was the common subject of the unlawful assembly? The prosecution witnesses did not state anything against the appellant or his overt act. The identification of the appellant is doubtful. The appellant was shown to the witnesses prior to the identification proceeding itself, therefore, the identification proceeding is doubtful. Hence the conviction of the appellant on the basis of identification cannot be sustained and the appellant deserves acquittal. 5. Shri Akhil. Mishra, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the leaned Additional Sessions Judge do not warrant any interference by this Court. 6. We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No.304/2006. The conviction of the appellant is based on the evidence of Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4). 7. Amar Bahadur Singh (PW-2) deposed that the incident took place in the month of December, 2005. On the date of incident, at about 1-2 A.M., he, the deceased and Diwakar Bari (PW-4) were discharging their duties as Security Guards in Hora Complex, Shyam Nagar, Raipur. They were sitting around the fire. At that time, the appellant, co-accused Govind Nihal and 8-10 other persons came there. The appellant and co-accused Govind Nihal were armed with knives. Out of the other 8-10 persons, 3 persons caught him and 2 persons caught Oiwakar Bari (PW-4). They were sitting around the fire. At that time, the appellant, co-accused Govind Nihal and 8-10 other persons came there. The appellant and co-accused Govind Nihal were armed with knives. Out of the other 8-10 persons, 3 persons caught him and 2 persons caught Oiwakar Bari (PW-4). They threatened the deceased and snatched his gun. The appellant and co-accused Govind Nihal assaulted the deceased on the thigh with knives. He further deposed that the appellant chased him also to assault him, but he ran away. The deceased fell down on the spot. The deceased succumbed to the injuries on the spot. Amar Bahadur Singh (PW2) informed about the incident to the Security Officer Ganga Prasad Sharma (PW-3). Ganga Prasad Sharma (PW-3) reached the place of occurrence. 8. Diwakar Bari (PW-4) deposed that on the date of incident, at about 12 midnight, he, the deceased and Amar Bahadur Singh (PW-2) were discharging their duties as Security Guards in Hora Complex, Shyam Nagar, Raipur. They were sitting around the fire. At that time, the appellant, co-accused Govind Nihal and some other persons came there. The appellant and co-accused Govind Nihal were armed with knives. Out of the other persons, some caught him and some caught Amar Bahadur Singh (PW-2). They threatened the deceased and snatched his gun. Co-accused Govind Nihal assaulted the deceased on the thigh with a knife. He further deposed that the appellant, the co-accused and other persons committed Marpeet with him and Amar Bahadur Singh (PW-2). They ran away from the place of occurrence. The deceased fell down. The deceased succumbed to the injuries on the spot. Amar Bahadur Singh (PW-2) informed about the incident to the Security Officer Ganga Prasad Sharma (PW-3). Ganga Prasad Sharma (PW-3) reached the place of occurrence. 9. Amar Bahadur Singh (PW-2) and Oiwakar Bari (PW-4) deposed that Amar Bahadur Singh (PW-2) lodge First Information Report (Ex.P-8) in Police Station Telibandha, Raipur. They further deposed that the identification was conducted at Tahsil Office, Raipur vide EX.P-7 and they i6enth'R4 t4£appe1faht and co-accused Govind Nihal. Additional Tahsildar/Executive Magistrate O.P. Kosariya (PW -10) deposed that he conducted the test identification parade of the appellant and co-accused Govind Nihal, in which, Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) identified the appellant and co-accused Govind Nihal. 10. In Sampat Tatyaba Shinde Vs. Additional Tahsildar/Executive Magistrate O.P. Kosariya (PW -10) deposed that he conducted the test identification parade of the appellant and co-accused Govind Nihal, in which, Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) identified the appellant and co-accused Govind Nihal. 10. In Sampat Tatyaba Shinde Vs. State of Maharashtra AIR 1974 SC 791 , the Supreme Court held that "The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in court regarding identification of the accused as the doer of the criminal act. The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence or a witness regarding identification of the accused, in court, as the perpetrator of the crime." 11. In Daya Singh Vs. State of Haryana, AIR 2001 SC 1188 the Supreme Court held that "The purpose of test identification is to have corroboration to the evidence of the eye-witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court." 12. In Munshi Singh Gautam (Dead) and others Vs. State of MP 2005 (9) SCC 631 , the Hon'ble Supreme Court observed as follows: "17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn., AIR 1958 SC 350 , Vaikuntam Chandrappa v. State of A.P., AIR 1960 SC 1340 , Budhsen v. State of UP., (1970) 2 SCC 128 and Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 .)" 13. It is, therefore, clear that the test identification parades, which are conducted during the course of investigation of a crime, do not constitute substantive evidence. One of their purposes is to help the investigating agency with an assurance that the progress in the investigation into the offence is proceeding in the right direction. The identification parades are essentially governed by Section 162 of the Code of Criminal Procedure and their further purpose is to have corroboration of the evidence of the eye-witnesses in form of earlier identification. Therefore, the conviction cannot be based merely on the evidence of test identification parade conducted during the course of investigation. The real and substantive evidence of the identity of the accused comes when witnesses give statements in the Court, identifying the accused. 14. Diwakar Bari (PW-4) deposed that he and Amar Bahadur Singh (PW2) were present at the time of test identification parade. At the time of identification proceeding, police officials remained out. The real and substantive evidence of the identity of the accused comes when witnesses give statements in the Court, identifying the accused. 14. Diwakar Bari (PW-4) deposed that he and Amar Bahadur Singh (PW2) were present at the time of test identification parade. At the time of identification proceeding, police officials remained out. The identification was got done by pointing fingers. In the test identification parade, in addition to the appellant and the co-accused, 4-5 more persons were present. In cross-examination, he deposed that when the appellant and the co-accused were brought to Tahsil Office, he had seen handcuff in their hands. Amar Bahadur Singh (PW-2) had also seen handcuff in their hands. The appellant and the co-accused were not taken inside before them. He further deposed that he was unable to state that in which sequence the appellant and the co-accused were standing in the test identification parade. It is true that only faces of the appellant and the co-accused were visible to him in the identification parade. The persons who were included in the test identification parade along with the appellant and the co-accused were of the height of the appellant and the co-accused. He further deposed that some were short. He had not seen whether the appellant and the co-accused were taken to the hospital by the police or not. 15. Amar Bahadur Singh (PW -2) deposed in cross-examination in paragraph 3 that light of tube-light was spread at the place of occurrence. Light of burning wood was also spread there. They had seen the accused persons in the above light. He further deposed that he had witnessed the incident from a distance of about 2 metres. Diwakar Sari (PW-4) also deposed that he had witnessed the incident from a distance of about 2 metres. Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) deposed that the appellant and co- accused Govind Nihal were armed with knives at that time. 16. Diwakar Bari (PW-4) identified the appellant in the test identification parade and he further identified him during the trial. The dock identification of the appellant and co-accused Govind Nihal, made by him and Amar Sahadur Singh (PW-2), is fully corroborated by the test identification parade conducted during the investigation. Therefore, we do not find any infirmity in the finding Ram Yadav Vs. The dock identification of the appellant and co-accused Govind Nihal, made by him and Amar Sahadur Singh (PW-2), is fully corroborated by the test identification parade conducted during the investigation. Therefore, we do not find any infirmity in the finding Ram Yadav Vs. State of C.G. 609 (Sharma, J.) recorded by learned Additional Sessions Judge that Amar Bahadur Singh (PW2) and Diwakar Bari (PW-4) had enough opportunity to identify the appellant and co-accused Govind Nihal, whom they identified during the test identification parade and also during the trial and their dock identification was fully corroborated by the test identification parade. 17. Learned counsel for the appellant has argued that formation of an unlawful assembly and the appellant being a member of the unlawful assembly is not established by the prosecution. Other persons were not arrested. Chargesheet was filed against the appellant and co-accused Govind Nihal only, whereas, name of Khairu alias Vijay is also mentioned in the charge-sheet as absconded accused. He has further argued that an assembly of 5 or more persons is designated as an unlawful assembly, i.e., for an unlawful assembly, 5 or more than 5 persons are essential, but, in the instant case only 2 persons were prosecuted, therefore, it cannot be said that the appellant was a member of the unlawful assembly. According to the prosecution witnesses, only co-accused Govind Nihal assaulted the deceased. No overt act of the appellant is stated by the prosecution witnesses, therefore, the appellant is not liable for committing murder of the deceased. He placed reliance on Amar Singh and others Vs. State of Punjab AIR 1987 SC 826 . 18. 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. 19. In Dharnidhar Vs. State of Uttar Pradesh and others 2010 (7) SCC 759 , 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. UP 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. 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) 20. 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. 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. UP AIR 1965 SC 202 . 21. Reference was also made to decision of Masalti Vs. UP AIR 1965 SC 202 . 21. Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) deposed that at the time of incident, they were discharging their duties as Security Guards in Hora Complex, Shyam Nagar, Raipur. They were taking heat of fire sitting before it. At that time, the appellant, co-accused Govind Nihal and 8-10 other persons came there. The appellant and co-accused Govind Nihal were armed with knives. Out of the other 8-10 persons, 3 persons caught Amar Bahadur Singh (PW-2) and 2 persons caught Diwakar Sari (PW-4). They threatened the deceased and snatched his gun. The appellant and co-accused Govind Nihal assaulted the deceased on the thigh with knives. 22. Looking to the evidence of Amar Bahadur Singh (PW-2) and Diwakar Sari (PW-4), it appears that the appellant came to the place of occurrence along with 8-10 other persons. At that time, the appellant was armed with a knife. He threatened deceased Ashok Kumar Pandey and snatched his gun. Reaching of 8-10 persons in a group at the place of occurrence at about 1 A.M., threatening deceased Ashok Kumar Pandey and catching Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) indicate the clear intention and object on the part of this group that they came there with the express object of killing deceased Ashok Kumar Pandey. The manner in which the appellant and co-accused Govind Nihal caught the deceased and other members caught Amar Bahadur Singh (PW-2) and Diwakar Bari (PW-4) clearly establishes that their intention was to commit murder of the deceased. Therefore, it is established that the appellant was a member of the unlawful assembly and, therefore, the appellant was aware that his act was going to result in death of the deceased. Therefore, his act falls within the dimension of Section 149 IPC. 23. In Roy Fernandes Vs. State of Go a and ors. 2012 Cri.L.J. 1542 (SC), the Hon'ble Supreme Court observed as follows: "10. Acquittal of three of the five accused persons comprising the unlawful assembly does not in the light of the settled legal position make any material difference. Therefore, his act falls within the dimension of Section 149 IPC. 23. In Roy Fernandes Vs. State of Go a and ors. 2012 Cri.L.J. 1542 (SC), the Hon'ble Supreme Court observed as follows: "10. Acquittal of three of the five accused persons comprising the unlawful assembly does not in the light of the settled legal position make any material difference. So long as there were four other persons with the appellant who had the common object of committing an offence the assembly would be unlawful in nature acquittal of some of those who were members of the unlawful assembly by reason of the benefit of doubt given to them notwithstanding. 11. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC. 24. It is established that the appellant came to the place of occurrence along with about 10 persons and it is also established that the appellant was a member of the unlawful assembly. Therefore, non-prosecution of the other persons, who were not arrested, would not be sufficient to negate there being an unlawful assembly of which the appellant was a member. 25. Learned counsel for the appellant has argued that the injury sustained by the deceased was on the thigh and not on any vital part of the body and the injury caused to the deceased was not intended. Therefore, an offence under Section 302 IPC would not be made out. 25. Looking to the evidence of Dr. Vikas Kumar Dhruw (PW-8), it appears that the deceased sustained a stab wound on left thigh on lateral aspect situated 24cms. below anterior superior iliac spine, 2.8cms.x 1cm. and another stab wound on left gluteal region, 5cms. below waist, 2.8cms.l cm. 26. In Harjinder Singh Vs. Delhi Administration AIR 1968 SC 867 , following injuries were found on the person of the deceased and the doctor opined in the following manner, we quote:- 1. A stab wound 1"x ¼”x?(sic) on left thigh upper and below the inguinal ligament 2. Abrasion 1 "xlinear on back of left fore-arms middle. He described the other features of the injuries as follows: "The direction of the stab wound was oblique and was going medially. Sartorius muscle was cut underneath along with femoral artery and vein. A stab wound 1"x ¼”x?(sic) on left thigh upper and below the inguinal ligament 2. Abrasion 1 "xlinear on back of left fore-arms middle. He described the other features of the injuries as follows: "The direction of the stab wound was oblique and was going medially. Sartorius muscle was cut underneath along with femoral artery and vein. Cut over major part of their diameter. There was effusion of blood in the muscles and around the track over left thigh upper end........" He deposed that death was due to shock and haemorrhage from injury to femoral vessels by stab wound of the thigh. He further stated : "It is correct that femoral artery and vein are important main vessels of the body. The cutting of these vessels would result in great loss of blood. The cutting injuries of these vessels could result in immediate death or after short duration." Applying the principles of Virsa Singh Vs. State of Punjab AIR 1958 SC 465 , the Hon'ble Supreme Court held that in the facts and circumstances of the above case, an offence under Section 302 IPC would not be made out and it was altered to Section 304 Part I IPC. 28. In the instant case, the knife blows were given on left thigh and left gluteal region of the body of the deceased, therefore, applying the above principles, we are of the opinion that the conviction of the appellant under Section 302 IPC cannot be sustained and in the above facts and circumstances of the case, the appellant would be liable for punishment under Section 304 Part I IPC. 29. Before us, only the appeal of accused Ram Yadav is there. On enquiry from the Registry, it is rep0l1ed that as per computer filing software, co-accused Govind Nihal has not filed any criminal appeal. The jail authority of Central Jail, Raipur has, vide memo No.1810 dated 8-8-2012, also reported that no criminal appeal has been preferred by prisoner Govind Nihal (the co-accused). 30. In the instant case, the appellant would be liable for punishment under Section 304 Part I IPC. Looking to the evidence of prosecution witnesses, discussed above, we find that the case of co-accused Govind Nihal is also on the same footing as that of appellant Ram Yadav. Therefore, co-accused Govind Nihal is also entitled for the same benefit. 31. In Mohinder Singh and another Vs. Looking to the evidence of prosecution witnesses, discussed above, we find that the case of co-accused Govind Nihal is also on the same footing as that of appellant Ram Yadav. Therefore, co-accused Govind Nihal is also entitled for the same benefit. 31. In Mohinder Singh and another Vs. State of Punjab and others 2004 (12) SCC 311 , the Hon'ble Supreme Court observed as follows: "18. ......... this Court in a catena of cases like Bijoy Singh v. State of Bihar, (2002) 9 SCC 147 , Raja Ram v. State of MP, (1994) 2 SCC 568 , Dandu Lakshmi Reddy v. State of A. P, (1999) 7 SCC 69 and Anil Rai v. State of Bihar, (2001) 7 SCC 318 has laid down that the benefit of such judgments of acquittal is available to the non-appealing accused also. ...... This Court in the case of Gurucharan Kumar v. State of Rajasthan, (2003) 2 SCC 698 has held in a similar fact situation as follows: "Even in a case where one of the accused has not preferred an appeal, or even if his special leave petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose special leave petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the other accused." 32. In Madhu Vs. State of Kerala 2012 (2) SCC 399 , the Hon'ble Supreme Court observed as follows: "75. ........ "32. ........This Court has laid down a judicious principle that even in a case where one of the accused has not preferred an appeal, or even if his special leave petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose special leave petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the 'other accused. ......" 33. In view of the above principles, we are of the opinion that even though co-accused Govind Nihal has not filed any appeal, as his case is also on the same footing as that of appellant Ram Yadav, therefore, he is also entitled for the same benefit. 34. ......" 33. In view of the above principles, we are of the opinion that even though co-accused Govind Nihal has not filed any appeal, as his case is also on the same footing as that of appellant Ram Yadav, therefore, he is also entitled for the same benefit. 34. So far as the conviction and sentence awarded by the learned Additional Sessions Judge under Section 148 IPC are concerned, they appear to be just and reasonable. Therefore, the conviction and sentence awarded to the appellant and co-accused Govind Nihal under Section 148 IPC are affirmed. 35. For the foregoing reasons, appeal of the appellant is partly allowed. The conviction and sentence awarded to the appellant and co-accused Govind Nihal under Section 148 IPC are affirmed. The conviction and sentence awarded to the appellant and co-accused Govind Nihal under Section 302/149 IPC are set aside. Instead thereof, they are convicted under Section 304 Part 1/149 IPC and sentenced to undergo rigorous imprisonment for 10 years. They are in jail. They are entitled for set off for the period already undergone by them. Both the sentences shall run concurrently.