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2014 DIGILAW 1144 (MP)

State Of M. P. v. Maiyadeen

2014-09-12

AJIT SINGH, N.K.GUPTA

body2014
JUDGMENT : N. K. GUPTA, J. The State has preferred the present appeal against the respondents No. 1 to 5 and 13 after getting leave vide order dated 9-1-1995 against the judgment dated 5-10-1993 passed by Additional Sessions Judge, Panna in S.T. No. 77/1992, whereby the respondents have been acquitted of the charge under sections 302 or 302/149 of Indian Penal Code. 2. The prosecution's case, in short, is that, on 16-7-1992, at about 6 p.m., the deceased Anandilal went to offer a pooja at Chabutara (Platform) of Thakur Baba, one mile away from village Banharikala (Police Station Ajaygarh, District Satna). He was accompanied by Shukla Ahirwar (P.W.9), Rammilan (P.W.1) and other family members and relatives. At about 7 p.m., the respondents along with other accused persons reached the spot. The respondent No. 1 Maiyadeen told the deceased Anandilal that his son had assaulted the son of the respondent Maiyadeen by Chappal and therefore, he would kill Anandilal and suddenly he gave a blow of Lathi (stick) on his head. Thereafter, all the accused persons brutally assaulted the deceased Anandilal with lathis (sticks). Hence, deceased Anandilal died at the spot. Rammilan who tried to save deceased Anandilal also sustained some injuries caused by various accused persons. Similarly, Munnilal (P.W.2), Prabhu (P.W.5), Hirabai (P.W.4) and Raja Bhaiya (P.W.6) also sustained injuries in saving deceased Anandilal. Rammilan took the body of deceased Anandilal to the Police Station Ajaygarh and informed about the incident. Rammilan, Munnilal, Prabhu, Raja Bhaiya and Hirabai had also been sent for their medico legal examination. Dr. V. S. Upadhyay (P.W.15) examined the injured witnesses Rammilan (P.W.1), Munnilal (P.W.2), Prabhu and Raja Bhaiya (P.W.6) and gave his reports, Ex.P/30 to Ex.P/33, whereas Dr. U. K. Gupta (P.W.16) examined the injured witness Hirabai and gave his report, Ex.P/34. Dead body of the deceased was sent for post-mortem. Dr. P. C. Shrivastava (P.W.14) had performed the post-mortem on the body of the deceased Anandilal and gave his report, Ex.P/29. The police seized lathis from different accused persons. After due investigation, a charge-sheet was filed before the JMFC, Ajaygarh, who committed the case to the Court of Sessions, Panna and ultimately, it was transferred to Additional Sessions Judge, Panna. 3. The respondents abjured their guilt. They took a plea that deceased Anandilal had enmity with so many persons and they had been falsely implicated in the matter. After due investigation, a charge-sheet was filed before the JMFC, Ajaygarh, who committed the case to the Court of Sessions, Panna and ultimately, it was transferred to Additional Sessions Judge, Panna. 3. The respondents abjured their guilt. They took a plea that deceased Anandilal had enmity with so many persons and they had been falsely implicated in the matter. In this connection, Rajkumar Yadav (D.W.1) and Dassu Kontar (D.W.2) were examined as defence witnesses. 4. Additional Sessions Judge, Panna after considering the evidence adduced by the parties, convicted the respondents No. 1 and 2 of offence under sections 325/148 (2 counts) of Indian Penal Code and sentenced them to jail sentence of the period for which they remained in the custody with fine of Rs. 300/- and Rs. 200/- respectively for each count of charge. Whereas respondents No. 3 to 5 and 13 have been convicted of offence under section 323/148 of Indian Penal Code and sentenced to jail sentence of the period for which they remained in the custody with fine of Rs. 100/-. However, the trial Court acquitted all the accused persons including the respondents of the charges under sections 302 or 302/149 of Indian Penal Code. 5. We have heard the learned counsel for the parties at length. 6. The present case depends upon the injuries caused to the deceased and other victims along with testimony of the eye witnesses. Dr. P. C. Shrivastava (P.W.14) performed the post-mortem on the body of the deceased Anandilal and gave his report, Ex.P/29. He found following injuries :- 1. Lacerated wound 3 “¼" and “¼" bone deep on the right side of the scalp in parietal region. Effusion of the blood present in this region. Fracture of the right parietal bone present. Blood clots present on the meninges. This injury is fatal. 2. Contusion 2 “½" x “¾" on left side of the back in upper part red in colour. Oblique. 3. Contusion 3 “½" x “¾" on left side of the back in middle part red in colour. 4. Contusion 2 “½" x “½" on the lateral side of the right arm, middle part red in colour transverse. Fracture of the right humorous present. Deformity and swelling present. 5. Lacerated wound “¾" x Limar x Muscle deep on the lateral side of the right arm. 6. 4. Contusion 2 “½" x “½" on the lateral side of the right arm, middle part red in colour transverse. Fracture of the right humorous present. Deformity and swelling present. 5. Lacerated wound “¾" x Limar x Muscle deep on the lateral side of the right arm. 6. Contusion 2 “½" x “¾" on the back of the left forearm middle part red in colour. Transverse. 7. Contusion 3 “¼" x “¾" on the lateral side of the left forearm middle part red in colour. Fracture of the radius and ulna bone present. Deformity and swelling present. 8. Contusion 2 “¼" x “¼" in front of the right leg middle part red in colour. 9. Lacerated wound “¾" x “¼" bone deep in front of right leg middle part fracture of the tibia and fibula bone present. Deformity and swelling present. 7. Similarly, Dr. V. S. Upadhyay (P.W.15) has proved the injury reports Ex.P/30 to Ex.P/33 of the victims Rammilan, Munnilal, Prabhu and Raja Bhaiya. The witness Rammilan sustained two injuries, one was on left elbow and second was on back. Fracture was also found on his elbow due to injury caused. Munnilal sustained 5 injuries at right elbow, right arm, forehead, back and buttocks. The victim Prabhu sustained one lacerated wound on his back, whereas Raja Bhaiya sustained a wound on his tongue and an abrasion on his right shoulder. Dr. U. K. Gupta (P.W.16) has proved the injury report Ex.P/34 of witness Hirabai. An abrasion was found on the right side of her face and she was complaining about pain on her right chest. 8. Injuries of the witnesses are not described here, for the purpose of the conviction of respondents but, to assess the participation of these witnesses in saving the deceased Anandilal. So far as the injuries caused to the deceased Anandilal are concerned, it would be apparent that he sustained 5-6 fractures on his body including a fracture on right parietal bone and he died due to head injury, haemorrhage and coma. However, Dr. Shrivastava has clearly mentioned that the injury No. 1 of the deceased was fatal in nature, whereas injuries No. 4, 7, 8 and 9 were grave and fatal. Remaining injuries were simple in nature. 9. In the present case, Rammilan (P.W.1), Munnilal (P.W.2), Narbadiya (P.W.3), Hirabai (P.W.4), Prabhu (P.W.5), Raja Bhaiya (P.W.6), Shukla (P.W.9) were examined as eye witnesses. Shrivastava has clearly mentioned that the injury No. 1 of the deceased was fatal in nature, whereas injuries No. 4, 7, 8 and 9 were grave and fatal. Remaining injuries were simple in nature. 9. In the present case, Rammilan (P.W.1), Munnilal (P.W.2), Narbadiya (P.W.3), Hirabai (P.W.4), Prabhu (P.W.5), Raja Bhaiya (P.W.6), Shukla (P.W.9) were examined as eye witnesses. Out of them, Narbadiya (P.W.3) could not tell about the incident in detail because she did not know each of the appellants by their names. Witness Rammilan, Munnilal, Prabhu, Hirabai and Raja Bhaiya were the injured witnesses, whereas Shukla (P.W.9) was the person, who was present at the spot to do the Pooja for the deceased Anandilal. Shukla (P.W.9) has turned hostile. He has accepted that some of the persons assaulted the deceased Anandilal with lathis and therefore, he died on the spot but, he did not name any of the respondents in his evidence. 10. The learned senior Advocate has submitted that actually it was not established beyond doubt that each of the respondents No. 1 to 5 and 13 had participated in the crime. The witnesses could not identify the actual assailants. If it is found that the respondents assaulted the deceased Anandilal then, looking to their overt act, at the most offence under section 325 of Indian Penal Code may constitute. In support of his contention, he has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of Jai Narain Mishra and others vs. State of Bihar, AIR 1972 SC 1764 . Also, reliance has been placed upon the judgment of Apex Court in case of Mohinder Singh vs. State (Delhi Administration), (1985) (Supp.) SCC 473. The learned Senior Advocate has further submitted that if one injury was found on the head of the deceased and it is claimed by the witnesses that more than one assaults had been given on the head then, benefit of doubt is to be given to all the assailants and none of them can be convicted of offence under section 302 of Indian Penal Code because it cannot be ascertained that amongst the respondents who was the author of that fatal head injury. He has placed his reliance upon the judgment of the Apex Court in Ramlal vs. State (Delhi Administration), AIR 1972 SC 2462 . He has placed his reliance upon the judgment of the Apex Court in Ramlal vs. State (Delhi Administration), AIR 1972 SC 2462 . It is further submitted that it was alleged against the respondent Maiyadeen that he gave a blow on the head of the deceased in the beginning but, it is not confirmed by any of the witnesses. However, it was alleged against some of the respondents that they did not participate in the crime and they simply exhorted the main accused and therefore, their common intention cannot be presumed. Similarly, Additional Sessions Judge has found in para 19 of the judgment that an unlawful assembly was constituted only for the purpose of causing hurt to the deceased Anandilal and therefore, no respondent can be convicted of offence under section 302 of Indian Penal Code either with help of section 34 or 149 of Indian Penal Code. In this context, reliance has been placed upon the judgments of Apex Court in cases of Matadin vs. State of Maharashtra, AIR 1999 SC138, Shri Kishan and others vs. State of U. P., AIR 1972 SC 2056 and Baul and another vs. State of U. P., AIR 1968 SC 728 . 11. The submissions made by the learned Senior Advocate for the respondents may be considered according to the factual position of the present case because law laid by Apex Court can be applied in similar factual position only. In the present case, Rammilan, Munnilal, Hirabai, Prabhu and Raja Bhaiya have stated that when the deceased Anandilal was offering pooja, the respondents suddenly came to the spot and the respondent Maiyadeen told the deceased Anandilal that his son assaulted the son of respondent Maiyadeen by a Chappal therefore, he would kill Anandilal and thereafter, the respondent Maiyadeen gave a blow of Lathi on the head of the deceased Anandilal. Some of the witnesses have stated that the respondent Ramswaroop had also given a forceful blow of lathi on the head of the deceased Anandilal. The witness Munnilal (P.W.2) has stated in para 18 of his cross-examination that the respondent Maiyadeen, Ramswaroop and Tulsiram had assaulted with lathis on the head of deceased Anandilal one by one. However, his version was not corroborated by other witnesses. 12. In this connection, the evidence of witness Sipahilal (P.W.7), son of the deceased Anandilal is also relevant. The witness Munnilal (P.W.2) has stated in para 18 of his cross-examination that the respondent Maiyadeen, Ramswaroop and Tulsiram had assaulted with lathis on the head of deceased Anandilal one by one. However, his version was not corroborated by other witnesses. 12. In this connection, the evidence of witness Sipahilal (P.W.7), son of the deceased Anandilal is also relevant. He has stated that Rajkumar, son of the respondent Maiyadeen had informed the invigilator and Sipahilal was caught red handed while he was copying during the examination and a quarrel took place between Sipahilal and Rajkumar. Thereafter, Ramswaroop came and beat the witness Sipahilal. On the next day, Sipahilal while going to the school gave a blow of Chappal on the buttock of son of respondent Maiyadeen. He has further stated that if he would have available at Chabutara (Platform) at the time of pooja then, the respondent would have also killed him. In this context, Ramkumar (D.W.1) son of respondent Maiyadeen was examined who has stated on oath that no such incident took place as described by the witness Sipahilal. It is stated that Sipahilal never assaulted him by a Chhapal. However, in para 8 of his cross-examination, he has accepted that when he informed the invigilator and Sipahilal was caught red handed while copying, a quarrel took place between him and Sipahilal. On his accetance it appears that the evidence given by Sipahilal is acceptable and Ramkumar has not deposed truth before the trial Court. 13. It was suggested that the deceased Anandilal was target of so many persons. Several suggestions were given to the witness Rammilan to show the long criminal history of the deceased Anandilal but, no document could be filed by the respondents to show that the deceased Anandilal had enmity with so many persons. Shukla (P.W.9) who was admittedly present at the spot and who turned hostile was given a suggestion that Anandilal had enmity with different villagers of village but, no specific suggestion was given to him. Under such circumstances, the contention of the learned Senior Advocate for the respondents cannot be accepted that the respondents were falsely implicated on the basis of enmity. 14. Actually, no major enmity was found between the parties and on the basis of a small quarrel which took place between the son of the deceased and son of the respondent Maiyadeen, such a deadly incident had taken place. 14. Actually, no major enmity was found between the parties and on the basis of a small quarrel which took place between the son of the deceased and son of the respondent Maiyadeen, such a deadly incident had taken place. There was no reason with the complainant to lodge a false FIR against the respondents, whereas the complainant Rammilan (P.W.1) witnesses Munnilal (P.W.2), Hirabai (P.W.4), Prabhu (P.W.5) and Raja Bhaiya (P.W.6) had sustained injuries caused by the respondents in saving the deceased Anandilal. 15. A suggestion was given to the witness Rammilan that the incident took place at the time when there was no day light available. It was dark in the night but, Rammilan did not accept the suggestion. However, such suggestion was accepted by Shukla. A particular statement has been given by Shukla (P.W.9) that there was darkness because the sky was cloudy. No such suggestion was given to the witnesses Hirabai, Prabhu, Raja Bhaiya and Munnilal that due to non availability of day light, they could not see the actual assailants. No suggestion had been given to the complainant Rammilan that because of presence of clouds in the sky, there was no sufficient light. According to the statement given by Shukla (P.W.9) in para 17, it would be apparent that he accepted the suggestion with the pretext that since there were clouds in the sky therefore, there was darkness otherwise, there was no possibility of darkness at that time. The defence witness Thassu Kondhar (D.W.2) even did not say that there was no sufficient light at the time of the incident or the sky was cloudy. Since no suggestion of clouds in the sky was given to any of the other eye witnesses, it would be apparent that it was a hypothetical suggestion given to the hostile witness Shukla (P.W.9) to obtain a favour to the respondents. Shukla was a person who was a priest of that Chabutara to offer the pooja and therefore, he had to maintain good relations with all the villagers and therefore, it was for him to remain neutral between the parties. Nothing could be brought in the evidence of Shukla, so that any portion of his testimony can be relied when he was declared hostile. 16. Thassu Kondhar (D.W.2) was examined as a defence witness to show that a quarrel took place between the deceased and unknown persons. Nothing could be brought in the evidence of Shukla, so that any portion of his testimony can be relied when he was declared hostile. 16. Thassu Kondhar (D.W.2) was examined as a defence witness to show that a quarrel took place between the deceased and unknown persons. Thereafter, the injured witnesses had tried to escape and while running towards a safer side they fell and sustained injuries. Initially, this witness was a prosecution witness who was given up on apprehension that he will turn hostile. He too did not say that due to non-availability of day light he could not see the actual assailants. It was not a case of robbery and hence crime must have been committed by the known enemies of the deceased. Hence, being resident of same village it was not possible for him that he could not identify the assailants. Also, injuries on Rammilan were not of such nature that they could be caused due to his fall on uneven surface. Hence, it is clear that this witness was a won over witness by the accused and telling a baseless and false story. 17. The incident took place at about 6.30 to 7 p.m. and at 7 p.m., the deceased Anandilal had already been killed. The witnesses have stated that they arranged for a cot and took his dead body to the outpost Hanumatpura Toriya and thereafter to the Police Station Ajaygarh and therefore, FIR was lodged at 10.15 p.m. in the night. Under such circumstances, in the month of July at about 6.30 to 7 p.m. though no sun light was available but, there should have been sufficient light so that the assailants could be identified. Hence, if various injured witnesses have identified the assailants then, their testimony can be believed. Their testimony cannot be discarded on the ground that there was no sufficient light to identify the respondents. 18. Also, the FIR, Ex.P/1 was lodged within 3.15 hours of the incident. It is accepted by SHO Shri N. K. Parihar (P.W.21) in para 59 that there is a outpost near village Toriya and Hanumatpura, which is known as Hanumatpura Toriya outpost. He has proved that soon after recording the FIR, he sent the carbon copy of FIR to the concerned Magistrate. It is accepted by SHO Shri N. K. Parihar (P.W.21) in para 59 that there is a outpost near village Toriya and Hanumatpura, which is known as Hanumatpura Toriya outpost. He has proved that soon after recording the FIR, he sent the carbon copy of FIR to the concerned Magistrate. It was not possible for him to sent the counter of FIR to the concerned Magistrate to his residence because he did not want to disturb the Magistrate in the night but, the counter of FIR was sent on the next day and it was received by the concerned Magistrate on the next day at about 11 a.m. He has shown the photocopy of receipt and gave his statement in para 56 of his cross-examination. Under such circumstances, legal compliance of section 157 of the Criminal Procedure Code is also established and the testimony of Shri Parihar can be accepted that the FIR was recorded at 10.15 p.m. in the night. Since the incident took place without any anticipation and therefore, after sustaining injuries, injured witnesses arranged for a cot to take the deceased to the outpost Hanumatpura and when they found that there was no authorized officer present, who could write down their FIR then, they went to the Police Station Ajaygarh. According to the witnesses they reached Ajaygarh at about 9 to 9.30 p.m. and thereafter, the FIR was lodged. The witnesses have given the account of time consumed by them before lodging the FIR. Under such circumstances, it cannot be said that FIR was lodged in delayed manner and therefore, it should be disbelieved. 19. The learned Senior Advocate has submitted that the deceased sustained only 9 injuries and so many accused persons were implicated by the complainant in the FIR and therefore, it appears that the witnesses after having conference decided to implicate the accused persons by lodging a false FIR. However, the contention of the learned Senior Advocate cannot be accepted because if the witnesses would have decided after the conference then, FIR would have lodged against all of the accused persons against whom the charge-sheet was filed. According to the FIR, Ex.P/1, it was lodged against 12 persons, whereas 14 persons were charge-sheeted. However, the contention of the learned Senior Advocate cannot be accepted because if the witnesses would have decided after the conference then, FIR would have lodged against all of the accused persons against whom the charge-sheet was filed. According to the FIR, Ex.P/1, it was lodged against 12 persons, whereas 14 persons were charge-sheeted. It would be clear from the evidence of the witnesses that some of the accused persons had assaulted the deceased and some of them had assaulted different injured witnesses to prevent them from intervening and therefore, by counting the injuries of the deceased, it cannot be said that persons were falsely implicated. 20. In such a fight, where one person was killed and 4-5 others had sustained injuries, it was difficult for the witnesses to remember that who assaulted whom and in which serial order. Under such circumstances, if an FIR was lodged against 12 persons then, it cannot be said that they were falsely implicated after due deliberation. The testimony of the witnesses is duly supported by timely lodged FIR, Ex.P/1. 21. The testimony of the eye witnesses is also supported by the medical evidence. However, Additional Sessions Judge has acquitted 9 accused persons out of 14 and therefore, it is possible that the witnesses could not establish their overt-act in the scene of crime but, it cannot be said that those accused persons did not participate in the crime. If the witnesses could not remember their overt-acts at the time of their evidence then, they only got the benefit of doubt but, no such inference can be drawn that they were falsely implicated by the complainant. 22. The learned Senior Advocate for the respondents has submitted that witnesses have implicated as many as 12-14 persons in the case, whereas they could not state specifically attributed overt-act against the accused persons and therefore, their testimony relating to the respondents may also be discarded. However, the contention of the learned Senior Advocate cannot be accepted due to two reasons. Firstly, that the testimony of the witnesses relating to other accused persons was not discarded on the ground that they were telling a falsehood. The testimony is discarded on the ground that they could not state specifically against a particular accused and therefore, their omnibus allegations could not be accepted because a doubt was created in favour of those accused persons. The testimony is discarded on the ground that they could not state specifically against a particular accused and therefore, their omnibus allegations could not be accepted because a doubt was created in favour of those accused persons. Secondly, maxim "Falsus in Uno Falsus in Omnibus" is not applicable in India and therefore, if a witness states about a particular fact which is not correct then, his entire evidence cannot be thrown out. In this context, the judgment of the Apex Court in Ugra Ahir vs. State of Bihar, AIR 1965 SC 277 may be referred, in which it is held that the maxim "Falsus in Uno Falsus in Omnibus" is neither a sound rule of law, nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is therefore, the duty of the Court to scrutinize the evidence carefully but, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Hence, believable part of evidence given by the witnesses should be accepted while appreciating the evidence. 23. At present, leave is granted against the respondents No. 1 to 5 and 13 and therefore, overt-acts of these respondents are to be considered in the present judgment. Also, the respondent Manno has expired during the pendency of this appeal and therefore, the overt-act of only five respondents are to be considered in the present appeal. Different eye witnesses have stated against the respondents by which it would be apparent that the respondents Maiyadeen and Ramswaroop had assaulted the deceased and thereafter, the witnesses have stated in omnibus manner against the remaining respondents. 24. First of all, case of the respondent Bandoo @ Bandi is considered then, there is no specific allegation against him that whether he gave any blow to the deceased or any other injured person directly. Though the named FIR, Ex.P/1 was lodged by the complainant Rammilan but, name of this respondent was not mentioned therein. If he was present and participated in the crime then, there was no reason why his name would not have been mentioned in the FIR. Though the named FIR, Ex.P/1 was lodged by the complainant Rammilan but, name of this respondent was not mentioned therein. If he was present and participated in the crime then, there was no reason why his name would not have been mentioned in the FIR. Under such circumstances, when the name of the respondent Bandoo @ Bandi was not given in the FIR and his no specific overt act is told by the witnesses then, it cannot be said beyond doubt that he had participated in the crime or he assaulted the deceased. It is true that the trial Court has convicted the respondent Bandoo @ Bandi of offence under section 323/148 of Indian Penal Code but, it was not proved beyond doubt that he participated in assaulting the deceased Anandilal and therefore, the respondent Bandoo @ Bandi was rightly acquitted by the trial Court of offence under section 302 of Indian Penal Code. 25. If the testimony of the witnesses is considered minutely then, each of them has stated that initially Maiyadeen gave a blow with lathi to the deceased Anandilal and thereafter, Ramswaroop also gave a blow. Some of the witnesses like Munnilal have stated that Tulsidas had also given a blow with a lathi to the deceased and thereafter, all the respondents assaulted the victim. By omnibus allegations against all the accused persons, where 14 persons were implicated in the case, it cannot be said that each of such accused would have participated in the crime because their name was not clearly mentioned by the witnesses that they caused any specific injury to the deceased or to any injured witness then, though such an accused was present but, in absence of real proof of his participation, he could not be convicted for any offence done by others. In the present matter, leave was granted against the respondent No. 3 Sitaram, whereas there is no specific allegation that Sitaram gave any blow to the deceased Anandilal. The complainant Rammilan (P.W.1) has submitted that Sitaram assaulted the witness Prabhu, whereas Prabhu (P.W.5) has stated that he was beaten up by Ramswaroop. He did not say against Sitaram and therefore, there is no injured witness who stated that he was being assaulted by the respondent Sitaram. There is no specific allegation against Sitaram that he assaulted the deceased Anandilal in a particular manner. He did not say against Sitaram and therefore, there is no injured witness who stated that he was being assaulted by the respondent Sitaram. There is no specific allegation against Sitaram that he assaulted the deceased Anandilal in a particular manner. Hence, by making vague and omnibus allegations, it cannot be said beyond doubt that the respondent Sitaram had participated in the crime. The trial Court has rightly acquitted the respondent Sitaram of the offence under section 302 of Indian Penal Code in absence of any evidence to his overt-act that he assaulted the deceased Anandilal or he prevented others in intervention of the crime of murder. 26. So far as the accused Tulsidas is concerned, only Munnilal (P.W.2) has stated that Tulsidas gave a blow on the head of the deceased, whereas remaining eye witnesses Rammilan, Hirabai, Prabhu and Raja Bhaiya did not state against the respondent Tulsidas specifically that he assaulted the deceased and caused injury at a particular portion of his body. They made omnibus allegations against so many accused persons that they had assaulted the deceased Anandilal. Each of the injured witnesses was in a position to state specifically that who assaulted him particularly. Neither of them has stated that the respondent Tulsidas assaulted him. If the witness Munnilal could see that the respondent Tulsidas assaulted the victim on the head of the deceased Anandilal then, other 4-5 witnesses would have also corroborated that fact. They corroborated that the respondents Maiyadeen and Ramswaroop had assaulted the deceased Anandilal on his head one by one. Under these circumstances, the testimony of Munnilal cannot be accepted beyond doubt that the respondent Tulsidas assaulted either the deceased or to other injured witnesses in preventing them to save the deceased. Under these circumstances, it cannot be said beyond doubt that the respondent Tulsidas had a common intention with the main accused or he participated in the crime. The Additional Sessions Judge has rightly acquitted the respondent Tulsidas of offence under section 302 of Indian Penal Code. 27. So far as the case of the respondent Maiyadeen and Ramswaroop is concerned, the witnesses have categorically stated that they assaulted the deceased Anandilal and also assaulted injured witnesses. The question arises as to who caused the fatal injury on the head of the deceased Anandilal. Out of different eye witnesses, Rammilan has stated that Maiyadeen opened the assault on deceased Anandilal. The question arises as to who caused the fatal injury on the head of the deceased Anandilal. Out of different eye witnesses, Rammilan has stated that Maiyadeen opened the assault on deceased Anandilal. Munnilal, Hirabai, Prabhu and Raja Bhaiya have stated that Maiyadeen gave first blow on the head of deceased Anandilal. Munnilal, Prabhu and Raja Bhaiya have stated that again a second blow was given by Ramswaroop on the head of the deceased. The learned Senior Advocate for the respondents has submitted that a single injury was found on the head of deceased by Dr. Shrivastava. The witnesses have stated about 2-3 blows on the head of the deceased and therefore, it is not clear as to whether the respondent Maiyadeen assaulted on the head of the deceased or the respondent Ramswaroop assaulted on the head of the deceased and therefore, by quoting the judgment of the Apex Court in case of Ramlal (supra) it was submitted that both of the accused Maiyadeen as well as Ramswaroop were rightly acquitted by the trial Court of offence under section 302 of Indian Penal Code. 28. In the present case, it is clear that a powerful blow was given on the head of the deceased causing his death and therefore, the accused who caused the blow on the head of the deceased had intended to kill the deceased and therefore, it is necessary for the Court to ascertain as to who gave that fatal blow on the head of the deceased. It is clear by considering the injuries of the complainant Rammilan that he immediately intervened in the crime and he also sustained so many injuries. Therefore, he could not see the subsequent event in an attentive manner. The witnesses have stated that first blow was given by Maiyadeen on the head of deceased and thereafter, Ramswaroop also gave a blow on the head of deceased Anandilal. In this connection, the statement given by witnesses Hirabai and Prabhu is important. They have stated that Maiyadeen gave a blow of lathi on the head of the deceased Anandilal and therefore, he fell down. The witness Prabhu has cleared further that respondent Maiyadeen assaulted the victim Anandilal when he was being seated and before he could stand, Ramswaroop gave a blow on his head and he fell down. Such a situation was duly corroborated by Raja Bhaiya and Munnilal. The witness Prabhu has cleared further that respondent Maiyadeen assaulted the victim Anandilal when he was being seated and before he could stand, Ramswaroop gave a blow on his head and he fell down. Such a situation was duly corroborated by Raja Bhaiya and Munnilal. Raja Bhaiya was cross-examined in detail and he answered the question of the defence counsel in para 12 of his cross-examination that when the deceased Anandilal received the first blow of lathi caused by the respondent Maiyadeen, he put both the hands on his head and thereafter, Ramswaroop also gave a blow of lathi on the head. It is clear from the post-mortem report, Ex.P/29 proved by Dr. Shrivastava that he found 4 injuries on both the hands of the deceased Anandilal. Out of them, right humorous and left ulna and humorous bones were found broken. Such injuries caused to the arms of the deceased indicates that powerful blows were given by the assailants on the hands. If blows were given on the hands when the deceased Anandilal was lying on the ground then, force of the assault would have also affected the ribs and other parts of the body, which were close to the arms but, no rib was found broken. No fatal injury was found on the chest or back of the deceased. Hence, explanation given by the witness Raja Bhaiya appears to be acceptable that after the first fatal blow given on the head of the deceased Anandilal by the respondent Maiyadeen, the deceased put both his hands on the head by way of natural reflex to protect himself from receiving fatal injury there and therefore, the blows given by Ramswaroop had caused fractures on both his hands. 29. If someone suddenly sustains an injury or pain in any part of his body then natural human reflex would be that he immediately hold that portion of body by hands to get the feeling of pain reduced. Hence, the evidence given by Raja Bhaiya in this context is natural and believable. Under these circumstances, if a single injury was found on the head of the deceased and it was claimed by the witnesses that two of the respondents had assaulted the deceased on his head then, such a position is very well explained by the witnesses Raja Bhaiya, Prabhu and Munnilal. Under these circumstances, if a single injury was found on the head of the deceased and it was claimed by the witnesses that two of the respondents had assaulted the deceased on his head then, such a position is very well explained by the witnesses Raja Bhaiya, Prabhu and Munnilal. Explanation given by these witnesses is duly supported by the medical evidence and therefore, their testimony can be accepted. It is proved beyond doubt that it was the respondent Maiyadeen who gave a powerful fatal blow on the head of the deceased, so that he sustained head injury, which caused his death. 30. On the basis of the factual difference, the judgment of the Apex Court in Ramlal (supra) cannot be applied in the present case. So far as the intention is concerned, no quarrel had taken place between the parties. The complainant party was offering pooja at Chabutara of Devta and suddenly, the respondent Maiyadeen along with other respondents and accused came to the spot and assaulted the deceased in such a forceful manner that while he was trying to get up, he could not stand up properly and fell down on the ground and died at the spot. By causing such a powerful blow to the deceased on the vital part of his body, where a fracture of parietal bone was caused and the deceased died due to head injury, it is clear from the evidence of the witnesses that the respondents Maiyadeen and Ramswaroop continued to assault the deceased till he died. Intention of the respondent Maiyadeen was established that he intended to kill deceased Anandilal. 31. In this connection, the contention advanced by the learned Deputy Advocate General is acceptable that if the evidence of eye witness is duly corroborated by medical evidence and conduct of the accused shows his intention then, in absence of the motive, the accused can be convicted of offence under section 302 of Indian Penal Code. In this context, the judgment of the Apex Court in Yunis @ Kariya and others vs. State of Madhya Pradesh, AIR 2003 SC 539 may be referred, in which it is held that no material discrepancy between the medical evidence and evidence of the eye witnesses since at least 3 injuries referred to by the autopsy surgeon and confirming the part of medical evidence as stated by the eye witnesses are common. It is also held that ocular evidence was very clear and convincing, the role of the accused persons in the crime stands clearly established, failure to prove motive to commit crime is of no consequence. In the light of decision given by Apex Court in case of Yunis @ Kariya (supra), if facts of the present case are examined then, certainly the testimony of eye witnesses is duly corroborated by the medical evidence and specially it is established by the witnesses as to why a single injury was found on the head of the deceased though he was assaulted by at least two persons on his head. 32. The learned senior Advocate has submitted that in case of appeal against acquittal, the appellate court is not required to appreciate the evidence in detail. In this context, reliance is placed upon Ganesh Bhavan Patel and another vs. State of Maharashtra", AIR 1979 SC 135 , in which it was held that where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. On the other hand, the learned Deputy Advocate General has submitted that if appreciation of evidence done by the trial Court appears to be perverse then, it could be reappreciated by the High Court. In this context, reliance has been placed upon the judgment passed by Apex Court in case of Gamini Bala Koteshwara Rao & others vs. State of Andhra Pradesh, AIR 2010 SC 589 , in which the Apex Court after considering the evidence found that there was no discrepancy in the evidence given by the eye witnesses, so that their evidence could be discarded and therefore, the High Court was found justified in reassessment of the prosecution's evidence. In the present case, the trial Court has found that the respondents Maiyadeen and Ramswaroop had assaulted the deceased Anandilal but, without considering their overt-acts, the trial Court acquitted the respondents Maiyadeen and Ramswaroop of offence under section 302 of Indian Penal Code and convicted them only for offence under section 325 of Indian Penal Code. Hence, after considering the facts of the present case, it is the duty of this Court to reappreciate the evidence, where it is found that the respondent Maiyadeen had intended to kill the deceased Anandilal. The judgment passed by Apex Court in case of Ganesh Bhavan Patel (supra) cannot be applied in the present case because of factual difference. 33. On the basis of the aforesaid discussion, it is very much clear that the respondent Maiyadeen came with so many persons to the spot when the deceased Anandilal was offering pooja at Chabutra and it was the respondent Maiyadeen, who opened the assault on the deceased for a very trifle reason. He gave a forceful blow on the head of the deceased Anandilal causing a fracture of parietal bone. He continued to assault the deceased till he died and therefore, his intention is very well established by the prosecution that he committed a crime of murder, which is punishable under section 302 of Indian Penal Code. The Additional Sessions Judge thus committed an error of law and fact in acquitting the respondent Maiyadeen of offence under section 302 of Indian Penal Code. 34. So far as the conduct of the respondent Ramswaroop is concerned, it is true that when he gave a powerful blow on the head of the deceased, the deceased had already placed his hands on his head and therefore, due to that blow, no harm was caused to the deceased on the head but, different bones of his hands were broken due to blow caused by the respondent Ramswaroop. In this connection, the learned Senior Advocate for the respondents has submitted that common intention or object of the accused should be drawn carefully. In this connection, the judgment passed by Apex Court in cases of Matadin (supra), Shri Kishan (supra) and Baul (supra) have been referred. In case of Matadin (supra), common intention was to be drawn on the basis of exhortion. In the present case, there is no such allegation against the respondent Ramswaroop. In this connection, the judgment passed by Apex Court in cases of Matadin (supra), Shri Kishan (supra) and Baul (supra) have been referred. In case of Matadin (supra), common intention was to be drawn on the basis of exhortion. In the present case, there is no such allegation against the respondent Ramswaroop. In case of Shri Kishan (supra) it was found that injuries caused by the co-accused with lathi and therefore, his common intention to kill the deceased was not found. However, in the present case, it is alleged against respondent Ramswaroop that he forcefully assaulted the deceased on his head as a result of which different bones of his arms were broken because at that time he had kept his hands on the head. Also he assaulted the deceased till his death. He also assaulted various injured witnesses to prevent them in saving the deceased and therefore, due to factual difference, the decision passed in case of Shri Kishan (supra) cannot be applied in the present case. In case of Baul (supra) it was not proved that the particular co-accused caused any particular injury to the deceased and therefore, his intention to kill the deceased was ruled out. In the present case, as discussed above, the intention of the respondent Ramswaroop is clearly established. It is established by the witnesses that the respondent Ramswaroop came along with the main accused Maiyadeen, armed with lathi and participated in the crime from very beginning to the end till the deceased had died. In this connection, some portion of para 11 of the judgment passed by Apex Court in case of Jai Narain Mishra (supra) may be perused, which is as under :- "Where four or five persons attack a man with deadly weapons, it may well be presumed that the intention is to cause death". 35. In the present case, it was alleged against 7 accused persons that they surrounded the deceased armed with deadly weapons and caused him 9 injuries. Out of them, 4-5 were grave and one was fatal in nature. 35. In the present case, it was alleged against 7 accused persons that they surrounded the deceased armed with deadly weapons and caused him 9 injuries. Out of them, 4-5 were grave and one was fatal in nature. It is unfortunate that the witnesses could not tell about their specific overt-act and therefore, some of the accused persons got benefit of doubt but, the fact remains that the respondents Maiyadeen and Ramswaroop along with 4-5 persons surrounded the deceased who was offering pooja by sitting near the Chabutara and they shared common intention to cause death of the deceased. Additional Sessions Judge in para 11 of his judgment has committed an error that the respondents had intended only to cause hurt to the deceased. When it is proved beyond doubt that the respondent Ramswaroop had also intended to kill the deceased Anandilal, therefore, he too is guilty of offence under section 302 of Indian Penal Code with help of section 34 of Indian Penal Code. 36. Initially the case was prosecuted against 12 to 14 accused persons. However, overt-act of other accused persons could not be established beyond doubt. Hence, possibility cannot be ruled out that other accused persons did not constitute an unlawful assembly to kill the deceased Anandilal. Charges were framed against the respondent Ramswaroop of offence under section 302 read with section 149 of Indian Penal Code and it was very much clear before him that he had to defend the case, where the main accused had killed the deceased Anandilal and there was an allegation against him that he participated in the crime being a member of unlawful assembly. Under these circumstances, if there was no charge of offence under section 302 read with section 34 of Indian Penal Code against the respondent Ramswaroop still he can be convicted of offence under section 302 read with section 34 of Indian Penal Code. Under these circumstances, if there was no charge of offence under section 302 read with section 34 of Indian Penal Code against the respondent Ramswaroop still he can be convicted of offence under section 302 read with section 34 of Indian Penal Code. In this context, the judgment passed by Apex Court in case of Bhoor Singh vs. State of Punjab, AIR 1974 SC 1256 may be referred, in which it is held that if the accused has been charged under section 302 read with section 149 of Indian Penal Code but, convicted under section 302 read with section 34 of Indian Penal Code, though there was no specific charge under section 34 of Indian Penal Code, this tantamount to irregularity, if no prejudice has been caused to the accused. All the circumstances showing concert and participation in the joint criminal action by all the three appellants were duly put to them in their examination, under section 342, Criminal Procedure Code, 1898 (At present, under section 313 of the Criminal Procedure Code, 1974). The appellants were fully aware of the matter with which they were charged. No question of prejudice arises. In the light of aforesaid judgment, where it is clear that the respondent Ramswaroop was jointly tried with the respondent Maiyadeen and his joint criminal actions were duly put to him in his examination under section 313 of the Criminal Procedure Code Instead of charge under section 149 of the Criminal Procedure Code if he is convicted with help of section 34 of Indian Penal Code then, no prejudice would be caused to him. 37. On the basis of the aforesaid discussion, it is found that the respondent Maiyadeen had committed a crime under section 302 of Indian Penal Code, whereas the respondent Ramswaroop had committed an offence under section 302/34 of Indian Penal Code and therefore, they must be convicted in the present appeal for such offence. So far as the sentence is concerned, it is not a case, which may be considered in rare of the rarest category and therefore, it would be sufficient to impose a jail sentence of life imprisonment on the respondents No. 1 and 2. Since they have deposited the fine amount on their conviction of offence under section 325 of Indian Penal Code, therefore, there is no need to further impose any fine on them. 38. Since they have deposited the fine amount on their conviction of offence under section 325 of Indian Penal Code, therefore, there is no need to further impose any fine on them. 38. On the basis of the aforesaid discussion, the State could not show any basis to accept its appeal against the respondents Sitaram, Tulsidas and Bandoo @ Bandi, therefore, appeal filed by the State against these respondents is hereby dismissed. The appeal filed by the State is accepted against the respondents Maiyadeen and Ramswaroop. Consequently, they are convicted of offence under section 302 of Indian Penal Code and section 302 read with section 34 of Indian Penal Code respectively and sentenced to life imprisonment. 39. The respondents Maiyadeen and Ramswaroop are on bail. They are directed to surrender before the trial Court without any delay, so that their sentence may be executed. 40. The respondents Sitaram, Tulsidas and Bandoo @ Bandi are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.