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2013 DIGILAW 259 (CHH)

ARJUN v. STATE OF C. G.

2013-08-30

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :- 1. These appeals are directed against judgment dated 26-09-2007 passed by Second Additional Session Judge, Balodabazar, District Raipur in Sessions Trial No. 17/2007. By the impugned judgment, accused persons/appellants Arjun; Lalaram @ Bhagat and Padumlal have been convicted, and sentenced in the following manner. Conviction Sentence Under Section 302 Imprisonment for life and to pay fine of Rs. 20,000/-, in or 302/34, IPC default of payment of fine, to further undergo, rigorous imprisonment for, 2 years 2. Case of the prosecution, in brief, is as under:- On 19.11.2006 at about 9.45 AM, deceased Ayodhya Prasad @ Rahasu had gone to his-field alongwith Bajrang Manjhi (PW-1); Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8). The deceased was cutting a tree with the help of above persons and at that time, the appellants came in the field and they stopped the deceased and his labour from cutting the tree. Deceased Ayodhya Prasad told the appellants that he was owner of the tree, therefore, he was cutting the tree. Some quarrel took place between them. The appellants assaulted the deceased with chaku and stone. The deceased fell down and sustained injuries on his head. His brain material came out. He was taken to Bilaspur for treatment, but, he died on the way near Mahanadi Bridge. Shivprasad (PW-6), brother of the, deceased lodged First Information Report (Ex-.P-18) and Merg Intimation (Ex.P-17) in Police Outpost Gidhouri. Thereafter, regular FIR (Ex.P-16) was recorded in Police Station Bilaigarh. Investigating Officer reached the place of occurrence, gave notice (Ex.P-10), to panchas and prepared inquest (Ex.P.-11) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Biliagarh for post mortem examination vide Ex. P 25. The postmortem was conducted by Dr. Harnath Verma (PW-12). Investigating Officer reached the place of occurrence, gave notice (Ex.P-10), to panchas and prepared inquest (Ex.P.-11) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Biliagarh for post mortem examination vide Ex. P 25. The postmortem was conducted by Dr. Harnath Verma (PW-12). He gave his report (Ex.P-26), finding (i) lacerated wound 6 cm x 1 cm, x bone deep present on eyebrow, bone was fractured and blood was oozing out (ii) incised wound, 17 cm x 3.5 cm x 0.5 cm below the jaw (iii) incised wound, 7cm x 0.25 cm x skin deep on chin (iv) incised wound, 7 cm x 3 cm x skin deep on forehead (v) incised wound, 6 cm x 1 cm x skin deep on the right side of the forehead (vi) incised wound, 8 cm x 1 cm x 8 cm on the middle of the head and bone was fractured (vii) incised wound, 13 cm x 4 cm x 8 cm over right parieto region and bone was fractured (viii) incised wound, 8 cm x 0.5 cm x 4 cm over right temporal region and (ix) incised wound, 2 cm x 1 cm x skin deep over occipital region. He opined that the cause of death was haemorrhagic shock due to head injuries and the death was homicidal in nature. In further investigation, blood stained soil and plain soil were seized from the place of occurrence vide Ex.P-8. Memorandum statement of appellant Lalaram @ Bhagat was recorded under Section 27 of the Evidence Act vide Ex.P-1. At his instance, iron katta (cutting object) was seized vide Ex.P-2. Memorandum statement of appellant Arjun was recorded vide Ex.P-3. At his instance, Gandasa was seized vide Ex.P-4. Memorandum statement of appellant Padumlal was recored under Section 27 of the Evidence Act vide Ex.P-5. At his instance, stone was seized vide Ex.P-6. Sando baniyan and full-pant of appellant Lalaram @ Bhagat were seized vide Ex.P-7. Spot map (Ex.P.-9) was prepared by Investigating Officer Deenbandhu Uikey (PW-10). Seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-23. At his instance, stone was seized vide Ex.P-6. Sando baniyan and full-pant of appellant Lalaram @ Bhagat were seized vide Ex.P-7. Spot map (Ex.P.-9) was prepared by Investigating Officer Deenbandhu Uikey (PW-10). Seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-23. After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate, First Class Balodabazar, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by Second Additional Sessions Judge, Balodabazar, District Raipur, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Shri J.R. Verma, learned counsel for the appellants argued that the disputed land belonged to the appellants and the appellants were the owner of the said land and the deceased Ayodhya Prasad was encroaching the property of the appellants and cutting the tree. Appellants Padumlal and Lalaram @ Bhagat stopped the deceased therefrom. The deceased quarreled with both the appellants. The appellants had cultivated the said field, they had cultivated vegetables and also constructed hotel and shop thereon. He further argued that the place of occurrence was not visible from the hotel and shop. He further argued that appellant Arjun was not present at the place of occurrence. Looking to the evidence of Borri Verma (PW-2), Bajrang Manjhi (PW-1), Gilli Raout (PW-7) and Mukunda Raout (PW-8), it appears that appellant Arjun was not present when the quarrel took place between the deceased and appellant Padumlal. Presence of appellant Arjun at the place of occurrence is not proved by the prosecution. Shivprasad (PW-6) is real brother of the deceased and, therefore, he is a highly interested witness. His evidence is not reliable. He is a relative witness and has falsely implicated the appellants. The other witnesses Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Mukunda Raout (PW-8) have not supported the case of the prosecution and have turned hostile, therefore, their evidence is not reliable and cannot form basis for conviction. Therefore, the appellants deserve to be acquitted of the charges framed against them. Learned counsel for the appellants further argued that the deceased was aggressor and he was deliberately cutting the tree of the field of the appellants, as a result thereof, some quarrel took place between appellants Padumlal and Lalaram @ Bhagat and deceased Ayodhaya Prasad. Therefore, the appellants deserve to be acquitted of the charges framed against them. Learned counsel for the appellants further argued that the deceased was aggressor and he was deliberately cutting the tree of the field of the appellants, as a result thereof, some quarrel took place between appellants Padumlal and Lalaram @ Bhagat and deceased Ayodhaya Prasad. The deceased provoked appellants Lalaram @ Bhagat and Padumlal and there was severe exchange of abuse between appellants Padumlal and Lalaram @ Bhagat and deceased. Therefore, the act of appellants Padumlal and Lalaram @ Bhagat would not be punishable for offence under Section 302 IPC. He placed reliance on Mohamed Ankoos and others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , Dharam and others Vs. State of Haryana (2007) 15 SCC 241 , Nafe Singh Vs. State of Haryana (2009) 12 SCC 408 , and State of Madhya Pradesh Vs. Sughar Singh and others (2008) 15 SCC 442 . 4. On the other hand, Shri Sandeep Yadav, learned Dy. Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Second Additional Sessions Judge do not warrant any interference by this Court. 5. Shri C.R. Sahu, learned counsel for the complainant supported the impugned judgment. 6. We have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 17/2007. The conviction of the appellants is based on the evidence of Shivprasad (PW-6). 7. In the instant case, Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) turned hostile and Shivprasad (PW-6) is brother of deceased Ayodhya Prasad @ Rahasu. 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. 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. (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. 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. 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. The Court held as under: (SCC p. 213, paras 23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is 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." 11. It is not disputed that Shivprasad (PW-6) is brother of the deceased. 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." 11. It is not disputed that Shivprasad (PW-6) is brother of the deceased. It is not the law that the evidence of an interested witnesses 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 an 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. 12. Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) turned hostile. 13. In Paramjeet Singh alias Pamma Vs. State of Uttarakhand AIR 2011 SC 200 , the Hon'ble Supreme Court observed as follows: "17. The fact that the witness was declared hostile at the instance of the public prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide: State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291 : ( AIR 2003 SC 4230 : 2003 AIR SCW 3953). 18. This Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb & Ors. (Vide: State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291 : ( AIR 2003 SC 4230 : 2003 AIR SCW 3953). 18. This Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., (2006) 2 SCC 450 : ( AIR 2006 SC 951 : 2006 AIR SCW 421), observed as under (Para 7 of AIR, AIR SCW): "....... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..." 20. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480 : ( AIR 2009 SC 2558 : 2009 AIR SCW 4459), this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. 21. This Court reiterated a similar view in Govindappa & Ors. v. State of Karnataka, (2010) 6 SCC 533 : (2010 AIR SCW 3702), observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 22. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution." 14. In Mrinal Das and Ors. Vs. State of Tripura AIR 2011 SC 3753, the Hon'ble Supreme Court observed as follows: "42......... It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution." 15. In Chachar Dipu alias Dilipgbhai Nakubhai Vs. State of Gujarat 2013 AIR SCW 3223 the Hon'ble Supreme court has held thus:- "11. ........ In Rameshbhai Mohanbhai Koli and others v. State of Gujarat, the said principle has been reiterated stating that (Paras 8 and 9 of AIR, AIR SCW):- "16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as affected or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 : ( AIR 1976 SC 202 ), Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 : ( AIR 1977 SC 170 ), Syad Akbar v. State of Karnataka (1980) 1 SCC 30 : ( AIR 1979 SC 1848 ) and Khujji v. State of M.P. (1991) 3 SCC 627 : ( AIR 1991 SC 1853 : 1991 AIR SCW 2038)). 17. 17. In State of U.P. v. Ramesh Prasad Misra (1996) 10 SCC 360 : ( AIR 1996 SC 2766 : 1996 AIR SCW 3468) this court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this court in Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 : ( AIR 2002 SC 3137 : 2002 AIR SCW 3619), Gagan Kanojia v. State of Punjab (2006) 13 SCC 516, Radha Mohan Singh v. State of U.P. (2006) 2 SCC 450 : ( AIR 2006 SC 951 : 2006 AIR SCW 421), Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360 : ( AIR 2008 SC 320 : 2007 AIR SCW 6843) and Subbu Singh v. State (2009) 6 SCC 462 : (2009 AIR SCW 3937)." 16. Looking to the above principle, it is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as a hostile witness and cross-examined him and his evidence cannot be treated as affected or washed off the record altogether but the same can be accepted to the extent his version is to be dependable to the case of prosecution. 17. Shivprasad (PW-6) deposed that on 19-11-2006, at about 8.45 am, his brother Ayodhya Prasad @ Rahasu (deceased) had gone to field for cutting a parasa tree along with Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8). The above persons were cutting the parasa tree. At that time, appellants Lalaram @ Bhagat (A-1), Padumlal (A-2) and Arjun (A-3) came on the field. They were carrying katta and gandasa with them. The appellants surrounded deceased Ayodhya Prasad @ Rahasu, quarreled and stopped him from cutting the tree. They told the deceased that they were owner of the field and asked him why was he cutting the tree. When the deceased replied that he was owner of the field and the tree and, therefore, he had a right to cut the tree and was cutting the tree, some quarrel took place between the deceased and the appellants. They told the deceased that they were owner of the field and asked him why was he cutting the tree. When the deceased replied that he was owner of the field and the tree and, therefore, he had a right to cut the tree and was cutting the tree, some quarrel took place between the deceased and the appellants. Thereafter, the appellants assaulted the deceased with katta, gandasa and stone. Deceased Ayodhya Prasad @ Rahasu sustained injuries on his head, neck, back and abdomen and fell down on the field. He further deposed that he witnessed the incident from near the shop and the distance between the shop and the place of occurrence is 15 to 20 feet. 18. Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) initially did not support the case of the prosecution. They simply deposed that they were cutting the tree. At that time, the deceased was also present in the field. Appellants Lalaram @ Bhagat (A-1) and Padumlal (A-2) came there and, they, stopped him from cutting the tree. At that time, the appellants, were having katta (a cutting weapon). Therefore, they, due to fear, ran away from the spot. 19. Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) were declared hostile by the prosecution, and cross-examined. Borri Verma (PW-2), in para 4, deposed that Lalaram @ Bhagat (A-1), Padumlal (A-2) and, Arjun (A-3) came in the field and they started quarrelling with deceased Ayodhya Prasad @ Rahasu. It is also true that he saw that the appellants were assaulting the deceased and they gave katta/chapad blow on the head of the deceased. 20. Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) were declared hostile by the prosecution and cross-examined. Borri Verma (PW-2), in para 3, deposed that appellants Lalaram @ Bhagat (A-1) and Padumlal (A-2) surrounded the deceased and they were having weapons. 21. Gilli Raot (PW-7) in his cross-examination in para 3, deposed that Padumlal (A-2) came there and surrounded the deceased. Mukunda Raout (PW-8) deposed that when he turned back, he saw that the appellants were present there and deceased Ayodhya Prasad @ Rahasu had fallen down on the field and the appellants were standing surrounding the deceased and at that time the appellants were having weapons in their hands. 22. In Appabhai Vs. Mukunda Raout (PW-8) deposed that when he turned back, he saw that the appellants were present there and deceased Ayodhya Prasad @ Rahasu had fallen down on the field and the appellants were standing surrounding the deceased and at that time the appellants were having weapons in their hands. 22. In Appabhai Vs. State of Gujarat 1988 (Supp) SCC 241, the Hon'ble Supreme Court observed as follows: "11. In the light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil disputes is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature my react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana, (1983) 3 SCC 327 , ......... Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana, (1983) 3 SCC 327 , ......... "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way." 23. In Kathi Bharat Vajsur and another Vs. State of Gujarat (2012) 5 SCC 724 , the Hon'ble Supreme Court observed as follows: "34. This Court in Appabhai v. State of Gujarat, 1988 Supp SCC 241, held: (SCC pp. 245-46, para 11) 11. ... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana, (1983) 3 SCC 327 , Chinnappa Reddy, J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing, the same incident. The learned Judge observed: [SCC p. 330, SCC (Cri) p. 604, para 6] ‘6. ... Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.' " 35. We are in agreement with the above observations. When an eyewitness behaves in a manner that perhaps would be unusual, it is not for the prosecution or the court to go into the question as to why he reacted in such a manner. As has been rightly observed by His Lordship O. Chinnappa Reddy, J. in Rana Pratap case, there is no fixed pattern of reaction of an eyewitness to a crime. When faced with what is termed, as "an unusual reaction" of an eyewitness, the court must only examine whether the prosecution story is in any way affected by such reaction. If the answer is in the negative, then such reaction is irrelevant. We are afraid that the unusual behaviour of the injured eyewitness, PW 6 will not, in any way, aid the appellants to punch a hole on to the prosecution story." 24. If the answer is in the negative, then such reaction is irrelevant. We are afraid that the unusual behaviour of the injured eyewitness, PW 6 will not, in any way, aid the appellants to punch a hole on to the prosecution story." 24. Looking to the evidence of Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8), it appears that they ran away from the place of occurrence and they did not try to intervene or save the deceased. On this count only; their conduct cannot beheld unnatural. Merely the above witnesses did not intervene or save the deceased, their evidence cannot be discarded in toto. 25. Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) were labour and were engaged by the deceased for cutting the tree. The appellants were armed with deadly weapons. They threatened the above witnesses and asked them to run away and immediately thereafter the appellants assaulted the deceased. Therefore, the conduct of the above witnesses is not unnatural. The appellants were armed with deadly weapons and they attacked the deceased with katta, chopad and stones. In this situation, creation of fear in the minds of witnesses is natural that in case they would intervene in the assault, they would also be assaulted by the, appellants. It is very difficult to predict or express any opinion as to what could have been normal or natural conduct of a person. In such a situation, response of individuals in any situation may differ from person to person. Hence, it is not possible to reject the evidence of Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) on the above ground. 26. So far as evidence of Shivprasad (PW-6) is concerned, there is no material contradiction and omission found in his evidence. Shivprasad (PW-6) has not made any endeavour to materially improve his earlier statement and he had not suppressed anything material during investigation, therefore, his testimony is not liable to be discarded. 27. Shivprasad (PW-6) deposed that he lodged Merg Intimation (Ex.-P/17) in the Police Chowki Gidhouri and FIR (Ex.P-18) in Police Station Bilaigarh. He further deposed that the deceased sustained injuries on his head and brain material had come out. Dinbandhu Uikey (SHO) (PW-10) deposed that he sent the dead body of the deceased to Community Health Center, Bilaigarh for postmortem examination. 28. He further deposed that the deceased sustained injuries on his head and brain material had come out. Dinbandhu Uikey (SHO) (PW-10) deposed that he sent the dead body of the deceased to Community Health Center, Bilaigarh for postmortem examination. 28. Doctor Harnath Verma (PW-12) deposed that he conducted postmortem examination on the dead body of the deceased and gave his report (Ex.P-26), in which, he found (i) lacerated wound, 6 cm x 1 cm x bone deep present on eyebrow, bone was fractured and blood was oozing out (ii) incised wound, 17 cm x 3.5 cm x 0.5 cm below the jaw (iii) incised wound, 7 cm x 0.25 cm x skill deep on chin (iv) incised wound, 7 cm x 3 cm x skill deep on forehead (v) incised wound, 6 cm x 1 cm x skill deep on the right side of the forehead, (vi) incised wound, 8 cm x 1 cm x 8 cm on the middle of the head and bone was fractured (vii) incised wound, 13 cm x 4 cm x 8 cm over right parieto region and bone was fractured (viii) incised wound, 8 cm x 0.5 cm x 4 cm over right temporal region and (ix) incised wound, 2 cm x 1 cm x skin deep over occipital region. He further deposed that in postmortem examination report (Ex.-P/26), he mentioned that the cause of death was haemorrhagic shock due to head injuries and the death was homicidal in nature. 29. The date and time of the incident was 19-11-2006, at about 9.45 am and the FIR (Ex.P-18) was lodged on the same day at about 11.45 am. It appears that the First Information Report was lodged within 2 hours of the incident. It appears that First Information Report was lodged immediately. In the First Information Report, names of the appellants are mentioned as assailants. 30. Shivprasad (PW-6) specifically deposed that the appellants assaulted the deceased and the deceased died due to the injuries. His evidence is corroborated by hostile witnesses Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout (PW-7) and Makunda Raout (PW-8) to some extents. His evidence is corroborated by medical evidence too. 31. We have perused the medical evidence. The doctor opined that the cause of death of the deceased was haemorrhagic shock due to head injuries and the death was homicidal in nature. His evidence is corroborated by medical evidence too. 31. We have perused the medical evidence. The doctor opined that the cause of death of the deceased was haemorrhagic shock due to head injuries and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that the appellants had caused the injuries on the body of the deceased with katta, chopad and stones and the deceased died on account of the injuries caused by the appellants. 32. We shall consider whether there was any common intention on the part of the appellants and in furtherance there of they committed murder of the deceased. 33. It is well known that to establish a 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 cause 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. 34. In the instant case, the appellants, armed with katta and chopad, came in the field where the deceased was cutting the tree and they objected for cutting the tree. The deceased replied that he was the owner of the field and the tree was standing on the field which was in his possession. The appellants assaulted the deceased and the deceased sustained head injuries and succumbed to those 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. 35. Shri J.R. Verma, 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. 35. Shri J.R. Verma, 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 offence punishable under Section 304 of the Indian Penal Code. 36. In Gurudev Singh Vs. State of M.P. (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, Indian Penal Code 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, Indian Penal Code, 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 the 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. - 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. Nanavatti vs. 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, Indian Penal Code : (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 gave the provocation or that of any other person by mistake of accident." 27. With regard to Exception 4 to section 300 we may refer to Kulesh Mondal vs. 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, Indian Penal Code, 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 vs. State of Maharashtra, (2005) 10 SCC 404 , this Court detailed the law relating to Exceptions 1 and 4 to section 300, Indian Penal Code in the following terms : (SCC pp. 410-1l, paras 17-19) 17. The Fourth Exception to section 300, Indian Penal Code 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. The Fourth Exception to section 300, Indian Penal Code 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. 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 Exception 1. 18. The help of section 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 Indian Penal Code is not defined in Indian Penal Code. 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 furry 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. 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 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 vs. 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." 37. In Arun Raj Vs. Union of India and others (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 vs. 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. vs. 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." 38. In Chachar Dipu alias Dilipgbhai Nakubhai Vs. State of Gujarat 2013 AIR SCW 3223 (supra), the Hon'ble the Supreme Court observed thus: "16. ......... This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If the question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304, Penal Code. 17. We may hasten to clarify that in the said case, the two-Judge Bench observed that the aforestated principles are only broad guidelines and not cast-iron imperatives. In most cases, their observance would facilitate the task of the court. However, adding a word of caution, it observed that sometimes the facts are so interwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 18. However, adding a word of caution, it observed that sometimes the facts are so interwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. 18. Recently, in Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC 289 : (AIR 2012 SC (Cri) 1349 : 2012 AIR SCW 4211), after referring to the pronouncements in Rayavarapu Punnayya (( 1976) 4 SCC 382 ; AIR 1977 SC 45 ), Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC 660 : ( AIR 2008 SC 780 : 2008 AIR SCW 1), Ajit Singh v. State of Punjab (2011) 9 SCC 462 , and Mohinder Pal Jolly v. State of Punjab (1979) 3 SCC 30 : ( AIR 1979 SC 577 ), the Court observed thus:- "The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view i.e. by applying the "principle of exclusion". This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, "culpable homicide amounting to murder". Then secondly, it may proceed to examine if the case fell in any of the Exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and substantive in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery." 39. 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. 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 diverse 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. 40. In the instant case, the defence of the accused/appellants that their case is covered under one of the above Exceptions of Section 300 is not corroborated by the evidence on record. On going through the evidence on record, we find that the provocation came from the side of the accused/appellants and not from deceased Ayodhya Prasad @ Rahasu. It was also not a sudden attack as it was proved that the accused persons were armed with deadly weapons like katta and chopad at the time of occurrence and in fact they surrounded the deceased and started giving blows of katta and chopad on his head with the intention of killing him. Fracture on skull and some incised wounds were found on the body of the deceased. The injuries which the deceased suffered clearly show that sharp portions of the weapons were used by the appellants with considerable force and the injuries were caused on the vital part of the body. 41. 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 parts of the body which they selected for giving such blows would show that they had clear intention to commit murder of the deceased. Therefore, the argument of the appellants that one of the above Exceptions to Section 300 IPC is attracted to the instant case cannot be accepted on the face of the evidence on record. 42. Therefore, the argument of the appellants that one of the above Exceptions to Section 300 IPC is attracted to the instant case cannot be accepted on the face of the evidence on record. 42. 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. 43. The learned Addition Sessions Judge has convicted and sentenced the appellants under Section 302 or 302/34 IPC. The appellants are only liable for punishment under Section 302/34 IPC. 44. In the result, the appellants are convicted under Section 302/34 IPC and the sentence awarded to them under Section 302/34 IPC is affirmed. 45. With the above modification, both the appeals are dismissed. Appeals Dismissed.