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2012 DIGILAW 544 (RAJ)

Vijendra @ Gorkha v. State of Rajasthan

2012-02-29

RAGHUVENDRA S.RATHORE, S.S.KOTHARI

body2012
Hon'ble KOTHARI, J.—D.B. Criminal Appeal No. 102/2005, Vijendra alias Gorkha and Sumer alias Dholia vs. State of Rajasthan has been filed by the appellants under Section 374 Cr.P.C. challenging their conviction and sentence in Sessions Case No. 23/2002, State vs. Vijendra alias Gorkha & others under Section 302, 302/34, 323, 323/34 IPC by the learned Additional Sessions Judge Khetri dated 9.12.2004 by which both the appellants have been convicted and sentenced as below:- Appellant : Vijendra alias Gorkha 1. Under Section 302 IPC: Life imprisonment and fine of Rs. 1000/-. In default of payment six months simple imprisonment. 2. Under Section 323 read with 34 IPC: Six months simple imprisonment. Appellant: Sumer Singh alias Dholia 1. Under Section 302 read with 34 IPC. Life imprisonment and fine of Rs. 1000/- in default of payment six months simple imprisonment. 2. Under Section 323 read with 34 IPC: Six months simple imprisonment. All the sentences were ordered to run concurrently. D.B. Criminal Appeal No. 349/2005, State of Rajasthan vs. Surendra Singh & another has been filed on behalf of the State under Section 378(1) and (3) Cr.P.C. challenging the acquittal of Surendra Singh alias Kaliya and Hazari Lal from the offences under Section 302 read with Section 34 and Section 323 read with Section 34 IPC in the aforesaid Sessions Case. D.B. Criminal Revision No. 15/2005, Arun Kumar vs. State of Rajasthan and others has been filed under Section 397 read with Section 401 Cr.P.C. by Arun Kumar, the complainant, challenging the acquittal of the accused persons namely Surendra Singh alias Kaliya and Hazari Lal in the aforesaid Sessions Case from offences under Section 302 read with Section 34 and Section 323 read with Section 34 IPC. As all the aforesaid cases are against one judgment, they are being decided by this common judgment. 2. The facts of the case are that Arun Kumar S/o Shree Chand, resident of Satdiya submitted a written report Ext. P.1 on 10.5.02 to Sh. Zulfeekar Ali, S.H.O. Police Station Singhana at K.C.C. Hospital, Khetri alleging therein that on 9.5.02 he was in his `Chobara' and his elder brother Anil Kumar, Sarpanch was sitting in the back portion of his Haveli with Randheer. They were talking to each other. At about 10.00 P.M. he heard noises of his brother coming from the Haveli. He switched on the lights of the room. They were talking to each other. At about 10.00 P.M. he heard noises of his brother coming from the Haveli. He switched on the lights of the room. He saw that, armed with weapons, Vijendra alias Gorkha S/o Dayanand, Surendra S/o Dayanand, Sumer Singh S/o Dayanand, Suman W/o Vijendra alias Gorkha, residents of Satdiya, alongwith Hazari Lal, Mukul Singh and Chote Lal, sons of Gajanand, were beating his brothers. Randheer intervened and received injuries. He went to the spot where Bahadur and Kanwar Singh also arrived. The aforesaid persons also beat up his brother, Anil, who died as a result of the beating. 3. On the aforesaid report Ex. P.1 FIR No. 143/2002 for offences under Sections 147, 148, 149, 341, 323, 302 IPC Ext. P. 35 was registered and the police conducted investigations. During the investigations, the statements of witnesses were recorded. Arun Kumar and Randheer were got medically examined. The postmortem of Anil Kumar was got conducted. The police recovered clothes of the deceased Anil Kumar and bloodstained earth. Information was given under Section 27 of Indian Evidence Act by accused Hazari Lal, Vijendra Singh alias Gorkha, Sumer Singh alias Dholia and Surendra Singh alias Kaliya on which knives and lathis were recovered. The recovered articles were deposited in the Malkhana of Police Station Singhana and were subsequently sent for examination to FSL. On conclusion of the investigation, the police submitted a report under Section 173 Cr.P.C. against Vijendra alias Gorkha, Surendra alias Kaliya Sumer Singh alias Dholia and Hazari Lal for offences under Sections 302, 323 and 34 IPC. The learned Judicial Magistrate committed the aforesaid accused persons for trial to the learned Additional Sessions Judge, Khetri. 4. After hearing the parties, the learned Court framed charges under Section 323 read with Section 34 IPC and Section 302 read with Section 34 IPC against all the accused on 16.12.2002. Due to a formal defect in the charges framed, they were amended and the amended charges were framed on 10.2.2003. The accused pleaded not guilty and claimed trial. The prosecution produced seventeen witnesses and documents Exts. P1 to P42 in support of its case. On conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. They stated that the witnesses have wrongly deposed against them. The accused. Hazari Lal, Surendra Singh alias Kaliya and Vijendra Singh alias Gorkha also pleaded alibi. The prosecution produced seventeen witnesses and documents Exts. P1 to P42 in support of its case. On conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. They stated that the witnesses have wrongly deposed against them. The accused. Hazari Lal, Surendra Singh alias Kaliya and Vijendra Singh alias Gorkha also pleaded alibi. The accused persons produced four witnesses in defence evidence. After hearing the parties, the learned Additional Sessions Judge, Khetri convicted the accused Vijendra Singh alias Gorkha and Sumer Singh alias Dholia for offences under Section 302 read with Section 34 IPC and Section 323 read with Section 34 IPC as stated above. The learned Court acquitted the accused Surendra Singh alias Kaliya and Hazari Lal from the charges levelled against them. 5. We have heard the learned counsel for the appellants, the Public Prosecutor and the learned counsel for the complainant in the aforesaid appeals/revision. They also submitted arguments on behalf of the respondents in the aforesaid appeals/revision in which they were so arrayed. 6. The learned Counsel for the appellants has contended that the witnesses produced by the prosecution for proving the case are all close relatives and no independent witness has been produced though such witnesses were available. In the circumstances, the statements of Arun Kumar PW.1, Randheer PW.2, Srichand PW.3, Bahadur PW.4, Kanwar Singh PW.5 and Jai Dayal PW.6 cannot be relied upon and the prosecution has miserably failed to prove the offences against the appellants. The learned Public Prosecutor has submitted that the witnesses produced by the prosecution to support the incident are natural witnesses whose presence cannot be doubted. They cannot be called chance/planted witnesses and some of them being injured, their evidence cannot be disbelieved. 7. We have given our thoughtful consideration to the rival submissions. The case relates to the death of Anil Kumar. From a perusal of the statements of the above witnesses, it is found that Arun Kumar PW.1 and Srichand PW.3 are brother and father of the deceased, respectively. Randheer PW.2 is a cousin while Bahadur PW.4, Kanwar Singh PW.5 and Jai Dayal PW.6 are uncles of the deceased. From the perusal of their statements, it has been found that they are not real uncles but are distantly related as uncles. Out of the aforesaid witnesses. Randheer PW.2 is a cousin while Bahadur PW.4, Kanwar Singh PW.5 and Jai Dayal PW.6 are uncles of the deceased. From the perusal of their statements, it has been found that they are not real uncles but are distantly related as uncles. Out of the aforesaid witnesses. Arun Kumar PW.1, Randheer PW.2, Bahadur PW.4 and Kanwar Singh PW.5 have given eye witness account of the incident in detail. Srichand PW.3 and Jai Dayal PW.5 are not eye-witnesses of the incident. Randheer PW.2 was sitting with the deceased when the occurrence took place. Arun Kumar PW.1 resides in the adjacent house. Bahadur PW.4 and Kanwar Singh PW.5 also reside in the vicinity. Arun Kumar PW.1 and Randheer PW.2 received injuries during the scuffle and they were medically examined. Thus, there cannot be any doubt about their presence on the spot. Moreover, the appellants did not suggest the name of any independent witness who was present during the incident and has been withheld by the prosecution. 8. In this connection, it is proper and desirable to examine the legal position. The Hon'ble Apex Court laid down the law in this respect in the case of Dalip Singh and others vs. State of Punjab AIR 1953 SC 364 as below:- "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person." 9. The above decision was subsequently followed and approved by the Hon'ble Apex Court in the cases of Vadivelu Thevar vs. State of Madras AIR 1957 SC 614 Guli Chand and others vs. State of Rajasthan AIR 1974 Supreme Court 276, Baitullah and another vs. State of U.P. AIR 1997 Supreme Court 3946 = RLW 1998(3) SC 409 and Hardeep Singh and others vs. State of Haryana AIR 2008 Supreme Court 3113. Hon'ble Apex Court in the case of Bhajan Singh vs. State of Haryana AIR 2011 SC 2552 after considering Abdul Sayeed vs. State of Madhya Pradesh, (2010) 10 SCC 259 , Kailas & others vs. State of Maharashtra (2011) 1 SCC 793 , Durbal vs. State of Uttar Pradesh, (2011) 2 SCC 676 and State of U.P. vs. Naresh & others (2011) 4 SCC 324 , held as under: "The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely that he will spare his actual assailant(s) in order to falsely implicate someone. `Convincing '. evidence is required to discredit an injured witness.' Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein." 10. Keeping the aforesaid principles of law in mind, the evidence given by the aforesaid witnesses namely Arun Kumar PW.1, Randheer PW.2, Bahadur PW.4 and Kanwar Singh PW.5, we are of the opinion that their evidence cannot be brushed aside merely because they are related witnesses as they will not leave out real culprits and rope in the innocent persons. 11. The learned counsel for the appellants has submitted that the prosecution has changed the place of occurrence which creates serious doubts about the veracity of the prosecution story. According to him, Anil went towards the hut of Sumer on a motorcycle and a scuffle took place there and Anil sustained injuries. 12. The learned public prosecutor has submitted that there is no doubt about the place of occurrence and the evidence produced by the prosecution is fully reliable. 13. We have considered the aforesaid submissions. According to him, Anil went towards the hut of Sumer on a motorcycle and a scuffle took place there and Anil sustained injuries. 12. The learned public prosecutor has submitted that there is no doubt about the place of occurrence and the evidence produced by the prosecution is fully reliable. 13. We have considered the aforesaid submissions. Zulfeekar Ali PW.17 has stated that Aurn Kumar PW.2 gave him a written report Ext. P.1 in which the place of occurrence was mentioned. Subsequently, during investigation he prepared site plan Ext. p.7. Arun Kumar PW.1, Randheer PW.2, Bahadur PW.4 and Kanwar Singh PW.5 confirmed the place of occurrence as mentioned in the written report Ext. P.1. Durga Prasad PW.7 has proved the site plan Ext. P.7. Bloodstained earth was also recovered from the site during investigation vide seizure memo Ext. P. 6. During the trial, the appellants came out with a story that the scuffle took place in the field of Sumer. However, no such suggestion was given to the prosecution witnesses in their cross-examination. There is nothing on record to show that the appellants either submitted any report/application to higher officers of the police or any other authority that the investigation is not being properly conducted and the police have changed the place of occurrence. The appellants produced Suchha Singh DW1 and Prithvi Singh DW 2 to prove that the incident took place in the field of Sumer. The learned Trial Court has considered this aspect of the matter in its judgment and after discussing the evidence come to the conclusion that there is no substance in the defence version. We do not see any reason to disagree with the said finding in view of the overwhelming evidence produced by the prosecution on the point. 14. The learned counsel for the appellants has also contended that the appellants were not present in village Satdiya and they did not commit any offence. 15. The learned Public Prosecutor has submitted that the appellants were present on the date and time mentioned in the written report Ext.P.1 at the place of occurrence and committed the offence and their plea of alibi is not proved. 16. We have carefully considered the rival submissions. The appellants had taken the plea of alibi during trial and also produced Jai Lal DW-3 and Rohtash DW-4 to above it. Jail Lal DW-3 has stated that the accused. 16. We have carefully considered the rival submissions. The appellants had taken the plea of alibi during trial and also produced Jai Lal DW-3 and Rohtash DW-4 to above it. Jail Lal DW-3 has stated that the accused. Surendra and Hazari, attended the marriage of his daughters on 9.5.2002 and remained there from morning to night. Rohtash DW-4 has stated that the accused Vijendra went to his village on 7.5.2002 and stayed there for 7-8 days. The learned Trial Court has considered their evidence and disbelieved the same. We have also gone through the statements of the above witnesses and the finding recorded by the learned Trial Court. The settled legal position is that there should be clinching evidence to prove alibi. The plea of alibi had to be proved with absolute certainty so as to exclude the possibility of the presence of the appellant at the site at the relevant time. When a plea of alibi is raised by an accused., it is for the accused to establish the said plea by positive evidence which has not been led in the present case. Jai Lal DW-3 resides in the same village and in the circumstances the possibilities of the accused persons attending the marriages and also reaching the site of incident cannot be ruled out. So far as the statement of Rohtash DW-4 is concerned, there is no documentary or positive evidence in its support. Thus, in the instant case, the appellants have miserably failed to produce positive and clinching evidence and in the circumstances their plea of alibi has been rightly disbelie-ved by the learned Trial Court. We no not find any reason to disagree with it. 17. The learned counsel for the appellants have submitted that the prosecution has failed to produce any evidence for proving common intention of the appellants and as such they cannot be convicted for any offence with the aid of Section 34 IPC. On the other hand, the Public Prosecutor has contended that the appellants committed the offences jointly after concert and as such their common intention is well proved. 18. We have carefully considered the above submission. 19. Section 34 IPC does not create a new offence but it is a rule of law and applies only when a criminal act is done by several persons of whom the accused charges thereunder was one. 18. We have carefully considered the above submission. 19. Section 34 IPC does not create a new offence but it is a rule of law and applies only when a criminal act is done by several persons of whom the accused charges thereunder was one. The Hon'ble Apex Court in Jai Bhagwan vs. State of Haryana AIR 1999 SC 1083 has held that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established; (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accuse, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. The Hon'ble Apex Court has also held in Ramashish Yadav vs. State of Bihar 1999 (8) SCC 555 that it requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior meeting of minds. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert. It follows, therefore, that when an accused along with another co-accused is charged with an offence under any Section of IPC read with Section 34 IPC, he can be convicted for committing the offence himself if he is found guilty even if others are found not guilty and acquitted. 20. In view of the aforesaid legal position, to determine whether the appellants acted in furtherance of common intention, the facts and circumstances of the case are to be taken into consideration. A perusal of the written report Ex.P.1 shows that it was mentioned therein that Vijendra, Surendra, Sumar Singh, Suman, Hazari Lal, Mukul Singh and Chote Lal (seven persons) reached the house of Anil Kumar and started beating him. After investigation, the police filed a report under Section 173 Cr.P.C. against Vijendra, Surendra, Sumer Singh and Hazari Lal and did not find any evidence against the remaining three persons. Aforesaid four persons were tried by the learned Additional Sessions Judge Khetri. During the trial, no attempt was made on behalf of the State/the complainant under the provisions of Section 319 Cr.P.C. to take action against the three persons who were left out by the police. Aforesaid four persons were tried by the learned Additional Sessions Judge Khetri. During the trial, no attempt was made on behalf of the State/the complainant under the provisions of Section 319 Cr.P.C. to take action against the three persons who were left out by the police. After the trial, the learned Judge acquitted Surendra and Hazari Lal for want of evidence. A careful scrutiny of the prosecution evidence goes to show that there is nothing in it to suggest that the accused persons reached the house of the deceased after predetermination and armed with deadly weapons. The prosecution witnesses have not stated whether all the accused persons reached the spot together or one by one. Thus, the prosecution has failed to produce any evidence to show that the accused persons had a pre concert for committing the offence and that they entertained a common intention while doing so. Hence, the contention of the learned counsel for the appellants deserves to be accepted. 21. Having reached the above conclusion, it remains to be seen what offence, if any, has been committed by the appellants. Arun Kumar PW.1 has stated that Vijendra had a knife in his hand and he caught hold of Anil Kumar by the neck. Thereafter, he inflicted two injuries with the knife on the chest of Anil Kumar. He has also deposed that while departing Sumer dealt a lathi blow on the head of Anil Kumar. Randheer PW.2 has stated that Vijendra was holding a sharp edged knife in his hand. He held Anil Kumar by the collar and inflicted two blows with the knife on Anil Kumar's chest. Bahadur PW.4 and Kanwar Singh PW.5 have also stated that when they reached the spot, they saw Vijendra causing two injuries on the chest of Anil Kumar with a knife. All the aforesaid witnesses have been cross examined on behalf of the appellants at length but their statements could not be shattered. The aforesaid ocular evidence is duly supported by the medical evidence. Dr. Hari Singh PW.11 has deposed that he conducted a postmortem of Anil Kumar in the presence of the Medical Board consisting of Dr. Hari Singh. Dr. Anuradha Nirman and Dr. Rajendra Kumar on 10.5.2000 at 9.00 A.M., and prepared the postmortem report Ext. P. 22. He has stated that he found the following external injuries on his body:- 1. Dr. Hari Singh PW.11 has deposed that he conducted a postmortem of Anil Kumar in the presence of the Medical Board consisting of Dr. Hari Singh. Dr. Anuradha Nirman and Dr. Rajendra Kumar on 10.5.2000 at 9.00 A.M., and prepared the postmortem report Ext. P. 22. He has stated that he found the following external injuries on his body:- 1. Incised would 3 cm x 1 cm x 3 cm deep in left lung. (middle lobe) 3 cm from left midclavicular line in 4th intercostal space. Wound edges swollen, horizontal. 2. Incised would 3 cm x 1 cm x 3 cm deep in lower lobe of left lung. 4 cm from midclavicular line and 5th intercostal space. Wound edges swollen, horizontal. 3. Abrasion 5 m x 1 cm left side of frontal bone region horizontal. 4. Incised wound 4 cm x 2 cm x 3 cm lateral aspect of upper 1/3 of left thigh. Vertical edges swollen. 5. Incised wound 2 cm x 1 cm x 2 cm vertical edges swollen over mid inguinal region. 22. A perusal of the postmortem report Ext. p. 22 shows that in the opinion of the Board the cause of death was syncope due to hemorrhage from left lung due to injury Nos. 1 and 2 Dr. Hari Singh PW.11 has stated that injury Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. This witness was cross-examined at length on behalf of the appellants but nothing material could come out to discredit his evidence. 23. The prosecution has also produced corroborative evidence. The appellant Vijendra was arrested vide Arrest Memo Ext. p. 10 on 14.5.02 at 6.10 P.M. by Zulfeekar Ali Pw. 17. While in police custody, he gave information under Section 27 of Evidence Act Ext. P. 37 on 23.5.02 at 9.00 A.M. to Zulfeekar Ali PW.17. In pursuance of this information, the same knife Article 4 was recovered vide Recovery Memo Ext. P.14 on 23.5.02 at 4.00 P.M. and site plan of the place of recovery Ext. P.15 was also prepared. The Arrest Memo Ext. P.10 has also been proved by Kanwar Singh PW.5 and Mintu PW.8. Recovery Memo Ext. P. 14 and site plan Ext. P. 15 have been proved by Pradeep PW.9. All the aforesaid documents have also been proved by Zulfeekar Ali PW.17. P.15 was also prepared. The Arrest Memo Ext. P.10 has also been proved by Kanwar Singh PW.5 and Mintu PW.8. Recovery Memo Ext. P. 14 and site plan Ext. P. 15 have been proved by Pradeep PW.9. All the aforesaid documents have also been proved by Zulfeekar Ali PW.17. The bloodstained pant and shirt of the deceased Anil Kumar were recovered by Zulfeekar Ali PW.17 vide Recovery Memo Ex. P.2. Arun Kumar PW.1 and Mintu PW. 8 have proved Ext. P. 2. The pant and shirt of the deceased and the knife recovered from the appellant Vijendra were deposited in sealed condition by Ramavtar PW.16 in the Malkhana of Police Station Singhana about which an entry Ext. P.34 was made in the Malkhana Register. Kailash Chandra PW.14 took the sealed packets on 28.6.02 to FSL and deposited them there vide receipt Ext. P. 24. A perusal of the report of FSL Ext. P. 40 shows that the pant, bush shirt and knife had stains of human blood-A Group. 24. It deserves to be mentioned that Appellant Vijendra Singh was charged for offence under Section 323 read with Section 34 IPC for causing injuries to Arun Kumar, Randheer and Anil Kumar. There is no allegation in the written report Ext. P.1 that Vijendra Singh caused any injury to any person other than Anil Kumar. Arun Kumar PW.1, Randheer PW.2, Sri Chand PW.3, Bahadur PW.4, Kanwar Singh PW.5 and Jai Dayal PW.6 have not stated that the appellant Vijendra Kumar caused any injury to any other person except Anil Kumar, the deceased. 25. Hence, from the aforesaid oral evidence of the witnesses, medical evidence and corroborative evidence, it is clearly proved that the deceased died due to the injuries caused by a knife in his abdomen by the appellant Vijendra Kumar. However, the appellant Vijendra Kumar did not cause simple injuries to Arun Kumar and Randheer. 26. So far as the appellant Sumer Singh is concerned. Randheer PW.2 has stated that Sumer Singh gave one lathi blow on Anil Kumar's head after he had fallen on the ground. Arun Kumar PW.1, Bahadur PW.4 and Kanwar Singh PW.5 have also supported the above version. These witnesses were cross-examined at length but there is nothing to discredit these witnesses. A perusal of the Postmortem Report Ext. Randheer PW.2 has stated that Sumer Singh gave one lathi blow on Anil Kumar's head after he had fallen on the ground. Arun Kumar PW.1, Bahadur PW.4 and Kanwar Singh PW.5 have also supported the above version. These witnesses were cross-examined at length but there is nothing to discredit these witnesses. A perusal of the Postmortem Report Ext. P.22 shows that Anil Kumar, deceased, had one injury namely No. 3, which is simple, caused by a blunt object on frontal bone region horizontal. 27. The appellant Sumer Singh alias Dholia is also alleged to have caused simple injuries to Randheer and Arun Kumar. The prosecution witness Arun Kumar PW.1 has stated that Sumer Singh caused two injuries on the head of Randheer with a lathi. Randheer PW.2 has stated that when he intervened, Sumer gave two lathi blows on his head. Bahadur PW.4 has deposed that Sumer inflicted lathi blows on the head of Randheer. Kanwar Singh PW.5 has stated that when Randheer went to save Anil, Sumer gave two lathis blows on his head. Dr. Hari Singh PW.11 has proved the injury report of Randheer Ext. P.20. From the perusal of Ext. P.20, it is found that Randheer had three injuries on his head and shoulder. Dr. Smt. Reeta Srivastava PW.12 has stated that all three lacerated wounds were caused by a blunt object. All the aforesaid witnesses were cross-examined at length on behalf of the appellants but their statements could not be shaken. The prosecution also produced corroborative evidence in support of the aforesaid evidence. The appellant Sumer Singh was arrested by Zulfeekar Ali PW. 17 vide Arrest Memo Ext. P.9 on 14.5.2002 at 6.20 P.M. Kanwar Singh PW.5 and Mintu PW.8 have proved Ext. P.9. During custody, Sumar Singh gave information, which is Ext. P.36, under Section 27 of Indian Evidence Act to Zulfeekar Ali PW.17 on 23.5.2002 at 9:15 A.M. In pursuance of the said information, one lathi was recovered vide Recovery Memo Ext. P.16 on 3.5.02 at 4.30 P.M. The Investigating Officer also prepared a map of the place Ext. P.17 from where the recovery was made. Pradeep PW.9 has proved Ext. P.17. Zulfeekar Ali PW.17 as also proved Exts. P.9, P.16, P.17, P. 36. P.16 on 3.5.02 at 4.30 P.M. The Investigating Officer also prepared a map of the place Ext. P.17 from where the recovery was made. Pradeep PW.9 has proved Ext. P.17. Zulfeekar Ali PW.17 as also proved Exts. P.9, P.16, P.17, P. 36. A careful scrutiny of the statements of Arun Kumar PW.1, Randheer PW.2, Bahadur PW.4 and Kanwar Singh PW.5 show that they have stated that accused Surendra gave one lathi blow on the shoulders of Arun Kumar. They have not stated that any injury was caused by the appellant Sumer Singh alias Dholia on the person of Anil Kumar. 28. Thus from the aforesaid evidence, it is clearly proved that the appellant Sumer Singh alias Dholia caused simple injuries with a blunt object on the person of Arun Kumar and Randheer. The prosecution has failed to prove that the aforesaid appellant caused any injury to Anil Kumar. 29. The learned Counsel for the appellant has vehemently argued that offence under Section 302 IPC is not proved against the appellant even if the entire prosecution evidence is taken on its face value and the offence will not travel beyond Section 304 Part II IPC. He has contended that the injuries received by the deceased were not sufficient in the ordinary course of nature to cause death. 30. The learned Public Prosecutor has submitted that the learned Trial Court has discussed both the ocular and medical evidence in detail and come to the conclusion that offence under Sec. 302 read with Sec. 34 IPC is proved. He has further submitted that no interference is called for in that finding. 31. We have carefully considered the above rival submissions in Virsa Singh vs. State of Punjab AIR 1966 Supreme Court 1874, which has become locus classics and is now ingrained in our legal system and has become part of the rule of law, Hon'ble Mr. Justice Vivian Bose, as his Lordship then was, explained the meaning and scope of clause thirdly. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". Firstly, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 32. The learned counsel for the appellants has submitted that offence under Section 302 IPC is not proved against the appellants. He placed reliance on the judgment given in D.B. Criminal Appeal No. 176/05, Sunil Kumar vs. State of Rajasthan, decided on 9.9.11. 33. The learned Public Prosecutor and the learned counsel for the complainant have controverted the above submission and submitted that the finding of the learned Trial Court does not call for any interference. 34. We have considered the above submission of the parties. We have already held the appellant Vijendra Kumar alias Gorkha guilty for causing injuries by knife on the person of Anil Kumar, the deceased. A careful reading of the aforesaid judgment, relied upon by the learned counsel for the appellants, shows that in the said case the prosecution failed to prove that the injuries caused to the deceased were grievous and sufficient to cause death while in the instant case the factual position is otherwise. Dr. Hari Singh PW.11 has categorically deposed that injury Nos. 2 and 3 were sufficient to cause death in the ordinary course of nature. In the circumstances, the appellants cannot get any benefit from the said judgment. 35. In view of the aforesaid discussion of evidence and the principles of law, we are of the firm view that offence under Section 302 IPC is fully proved against the appellant Vijendra while offence under Section 323 IPC is fully proved against appellant Sumer Singh. In the circumstances, the appellants cannot get any benefit from the said judgment. 35. In view of the aforesaid discussion of evidence and the principles of law, we are of the firm view that offence under Section 302 IPC is fully proved against the appellant Vijendra while offence under Section 323 IPC is fully proved against appellant Sumer Singh. It has been held by the Hon'ble Apex Court in Hemraj vs. The State (Delhi Administration) AIR 1990 Supreme Court 2252 that there is no illegality in convicting the appellant under Section 302 (simplicitor) though there was a constructive charge against all the accused inclusive of appellant under Section 302 read with Section 34 IPC, since the evidence has disclosed that it was only the appellant who inflicted the injury which proved fatal. 36. This brings us to the State Appeal and Criminal Revision. The learned Public Prosecutor and the learned counsel for the complainant have contended that the accused, who have been acquitted by the learned Trial Court, participated in the incident and are also liable for being convicted. The learned counsel for the acquitted accused persons has submitted that no infirmity or compelling circumstances have been shown due to which the order of acquittal passed by the learned Trial should be disturbed. 37. We have carefully considered the above submissions and gone through the judgment of the learned Trial Court. A careful reading of the judgment shows that the learned Trial Court has carefully considered the evidence produced in the case and come to the conclusion that offences are not proved against them. The Hon'ble Apex Court in the case of Vishram Singh Raghubanshi vs. State of U.P. AIR 2011 Supreme Court 2275 has, after considering its earlier judgments, held that the law on the issue is settled to the effect that only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate could should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine, manner where the other view is possible should be avoided, unless there are good reasons for interference. The appellate could should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine, manner where the other view is possible should be avoided, unless there are good reasons for interference. We do not find any such compelling circumstances and good reasons or perversity in the judgment of the learned Trial Court to set aside its finding. 38. For the aforesaid reasons, the appeal so far as it relates to the appellant Vijendra is concerned, it is dismissed and his conviction and sentence for the offence under Section 302 IPC is maintained. His conviction and sentence for offence under Section 323 read with Section 34 IPC is set aside and he is acquitted from that offence. The appeal so far as it relates to the appellant Sumer Singh alias Dholia is concerned, it is partly allowed and he is acquitted from the offence under Section 302 read with Section 34 IPC. However, offence under Section 323 IPC is proved against him and he is sentenced to six months simple imprisonment. 39. The impugned judgment of learned Trial Judge stands modified as indicated above. The State Appeal and Revision Petition are dismissed as being devoid of merits.