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2016 DIGILAW 1622 (ALL)

VISHWANATH v. STATE OF U. P.

2016-04-29

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2016
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This criminal appeal has been preferred by the appellants No. 1 to 6 namely Vishwanath, Amardeo, Jawahar, Mita, Jiut and Smt. Sukhdei respectively against the judgment and order dated 10.8.1982 passed by IIIrd, Additional, Sessions Judge, Mirzapur in Sessions Trial No. 32 of 1980 pertaining to crime No. 146 of 1977, Police Station Chunar, District Mirzapur whereby accused-appellants Amardeo and Jawahar have been convicted under Section 302/149 of the Indian Penal Code (in short “IPC”) and sentenced to life imprisonment. They have also been convicted under Section 307/149 IPC and sentenced to seven years rigorous imprisonment, under Section 148 IPC one and a half year rigorous imprisonment and under Section 323 read with Section 149 IPC sentenced to six months’ rigorous imprisonment. Accused-appellants Vishwanath, Mita, Jiut and Smt. Sukhdei have been convicted and each sentenced to undergo one year rigorous imprisonment under Sections 147 IPC, life imprisonment under Section 302/149 IPC and six months rigorous imprisonment under Section323/149 IPC. The sentences of each of the accused have been directed to run concurrently. 2. During the pendency of the appeal, appellant No. 1, Vishwanath, Appellant No. 2 Amar Deo and Appellant No. 6 Smt. Sukhdeo are reported to have died and the appeal on their behalf was dismissed abated vide order of this Court dated 22.8.2007. Appeal on behalf of the appellant No. 5 Jiut was also dismissed as abated by order dated 19.5.2015. Thus, the appeal on behalf of Appellants No. 1, 2, 5 and 6 has been dismissed as abated. We are now required to consider this appeal only with regard to the surviving appellants No. 3 and 4, who are alive, namely Jawahar and Mita respectively. 3. The prosecution story, in a nutshell is as follows; The prosecution case against the accused-appellants is that on 7.7.77 at about 7 a.m. at the house of Lal Kesh in village Baheri, they had formed an unlawful assembly, and in prosecution of the common object of said unlawful assembly murdered Gopnath and caused injuries to Funai and Lalkesh with the intention to commit their murder, and also caused simple injuries to Radhey Shyam and Ram Murat. At the time of the incident the accused Amardeo and appellant No. 3-Jawahar were armed with Gandasa (usually called as Farsha) whereas the accused appellant No. 4-Mita and Jiut were armed with Lathies. 4. At the time of the incident the accused Amardeo and appellant No. 3-Jawahar were armed with Gandasa (usually called as Farsha) whereas the accused appellant No. 4-Mita and Jiut were armed with Lathies. 4. It has been alleged that earlier the accused Amardeo too filed a complaint against Ram Murat, Funai, Gopnath, Radhey Shyam, Lal Kesh and 11 others for cutting his crop. The accused mentioned in the complaint were summoned and they obtained bail orders and filed bail bonds on 6.7.1977. It has been further stated that on 7.7.1977 morning a buffalo of the accused Amardeo was found grazing maize crop of Lal Kesh when he objected to this the accused Amardeo uttered the following words; Þ,sls gh tkuoj iM+sxs D;k djksxs vxj cksyksxs rks tku ls ekj MkysxsaÞ and it lead to heated exchange of words and mutual abuses. Lalkesh went back to his house abusing Amardeo. While this exchange of abuses and heated words were going on between the two, the accused Vishwanath arrived at the spot and instigated Amardeo and uttered “Maro Saale Ko”. By that time Gopnath, Radhey Shyam, Funai and Ram Murat had also reached the house of Lalkesh. The deceased Gopnath dissuaded the accused Amar Deo. However, on being instigated by accused Vishwanath Amar Deo ran towards his house in anger asking for Gandasa and saying that it has now become intolerable to bear the behaviour and now he would kill them. The accused Smt. Sukhdei went inside her house and brought two Gandasa and handed over one to her husband Amardeo and the other to her son appellant No. 3-Jawahar, the accused appellant No. 4-Mita and Jiut (two other sons of Amardeo) also brought Lathis from their house and rushed to the house of Lalkesh. The accused Amardeo gave a blow on the leg of Lalkesh with the Gandasa and he fell down on the ground. When Gopnath intervened, the accused Jiut and appellant No. 4-Mita hit him with the Lathi. The accused appellant No. 3-Jawahar then gave a blow on the neck of Gopnath with his Gandasa. When Radhey Shyam S/o Gopnath, Funai and Ram Murat intervened, the accused persons hit them both with the Gandasa and Lathi. The accused Vishwanath and Smt. Sukhdei were instigating the other accused standing nearby. The accused appellant No. 3-Jawahar then gave a blow on the neck of Gopnath with his Gandasa. When Radhey Shyam S/o Gopnath, Funai and Ram Murat intervened, the accused persons hit them both with the Gandasa and Lathi. The accused Vishwanath and Smt. Sukhdei were instigating the other accused standing nearby. On hearing the noise Mahanand, Sarada Singh, Raghubir, Ram Narain and Hausala arrived at the spot and witnessed the alleged incident. On seeing them, the accused fled away. Gopnath died on the spot. Lalkesh, Funai, Radhey Shyam and Ram Murat sustained several injuries. Radhey Syam lodged an FIR of the incident on the same day at 10.30 a.m. at police station Chunar. The police registered the case and after investigation submitted the charge-sheet against the accused on 4.11.77. The accused were committed to the Court of Session. 5. In order to prove the above prosecution case and to establish the charges levelled against the accused, the prosecution has examined 9 witnesses as P.W.1 to P.W.9 and has proved 24 documents marked with Ext. Ka 1 to Ka 24 besides material Ext. 1 to 7. 6. P.W. 1 Radhey Shyam is the son of deceased Gopnath. He also sustained injury in the occurrence. He has deposed about the factum of the occurrence and motive. He is the first informant and has proved his written report Ext. Ka 1. P.W.2 Lalkesh is also an injured witness of the alleged witness. He has stated about the motive and the factum of the occurrence. P.W.3, Raghubir has deposed about the factum of the occurrence. P.W.4 Shyam Lal is a witness of seizure of blood stained earth from the front of the house of Lalkesh. He has also stated that the dead body of Gopnath was lying in front of the house of Lal kesh. He has proved the seizure of blood stained and plain earth (Ext. Ka 2). From the place of occurrence. P.W.-5 Mahendar is a witness of seizure of blood stained Gandasa and Lathi (material Ext. 1 and 2) from the house of the accused persons at the pointing out of the accused Smt. Sukhdei. 7. P.W.6, Dr. C.P. Singh examined the injuries of Funai and Lalkesh on 7.7.1977 at 8.15 p.m. and 8.30 p.m. and prepared injury reports Ext. Ka 4 and Ka 5. He found following injuries on the person of Funai; (i) Incised wound 11.5 cm. 7. P.W.6, Dr. C.P. Singh examined the injuries of Funai and Lalkesh on 7.7.1977 at 8.15 p.m. and 8.30 p.m. and prepared injury reports Ext. Ka 4 and Ka 5. He found following injuries on the person of Funai; (i) Incised wound 11.5 cm. x 3 cm. x lung tissue deep with complete cut fracture of right clavicle, and supraclavicular area. Congestion present. Under observation. (ii) Incised wound 3.5 cm. x ½ cm. x muscle deep on the top of right shoulder. (iii) Contused swelling 11 cm. x 9 cm. on left side head just above the ear. (iv) Contusion 9 cm. x 8 cm. on back an outer part of left hand. Under observation. According to him, the injuries No. 1 and 2 were caused by some sharp edged weapon and the other two injuries were caused by some blunt weapon. The injuries No. 1 and 4 as mentioned above were kept under observation and x-ray was advised for it. The injuries were half day old at the time of the examination. 8. The following injuries were found on the person of Lal Kesh Singh; (i) Lacerated wound 6 cm. x ¾ cm. X scalp deep on left side head, 7 cm. above left ear. (ii) Abrasion 3 cm. X 1 cm. on left temporal region, 4 ½ cm. in front of left ear. (iii) Abraded contusion 5 cm. X 2 cm. on top of left shoulder. (iv) Lacerated wound 1 cm. X 1 cm. x upto bone deep on front and tip of left little finger. Under observation. (v) Lacerated wound 1 cm. X 1 cm. X muscle deep on front tip of right ring finger. (vi) Incised would 7 cm. 3 cm. x bone deep with complete cut fracture of left fibula on back and outer part of left leg, middle and lower third, 10 cm. above later malleolus. Under observation. 9. The injuries No. 4 and 6 were kept under observation and x-ray was advised. The injuries were half day old at the time of their examination. He has said that the incised wounds could be caused by Gandasa (Ext. Ka 1) and the other injuries by Lathis and the said injuries could possibly be caused at about 7 a.m. on 7.7.1977. 10. This witness (Dr. The injuries were half day old at the time of their examination. He has said that the incised wounds could be caused by Gandasa (Ext. Ka 1) and the other injuries by Lathis and the said injuries could possibly be caused at about 7 a.m. on 7.7.1977. 10. This witness (Dr. C.P. Singh) also conducted autopsy on the dead body of deceased Gopnath on 8.7.77 at 11.30 a.m. and prepared the post-mortem examination report Ex Ka 6. 11. According to the post-mortem report The deceased was about 65 years old at the time of his death. He was of average built. Rigor-mortis was present in all the limbs, and there was no sign of decomposition. Following ante-mortem injuries were found on the dead body; (i) Incised wound 10 cm. X 3 ½ cm. x 10 ½ cm. on back of chest, upper part in middle, 4 cm. below base of neck. (ii) Lacerated wound 1 ½ cm. X ½ cm. x muscle deep, 4 cm. above right medial malleolus of leg. 12. Partly digested liquid material was present in the stomach. Semi-digested material and gases were present in small intestine, and faecal material was present in the large intestine. The death was the result of hemorrhage and shock caused due to above ante-mortem injuries. Witness has proved the post-mortem examination report. 13. P.W. 7, Dr. B.M.P Srivastava examined the injuries of Radhey Syam and Ram Murat on 7.7.1977 at P.H.C Chunar. Examination of injuries of Radhey Sham was done by him at 6.30 p.m. He found following injuries on his person; (i) One lacerated wound 2 cm. x ½ muscle deep on the occipital region of head 8 cm. away from the right ear. (ii) One lacerated wound 2 cm. x ½ cm. on the dersal surface of left hand. (iii) One Defused traumatic swelling in the whole of the left hand on dorsal surface. (iv) Defused traumatic swelling in posterior surface of left fore-arm in the upper one half and very tender. (v) One diffused traumatic swelling 8 cm. x 7 cm. on the posterior surface of left arm in the middle. (vi) Defused traumatic swelling in the whole of the right fore-arm on posterior surface. (vii) One contusion 7 cm. x 2 ½ cm. on the left shoulder on upper part. (viii) One contusion 11 cm. x 2 ½ cm. (v) One diffused traumatic swelling 8 cm. x 7 cm. on the posterior surface of left arm in the middle. (vi) Defused traumatic swelling in the whole of the right fore-arm on posterior surface. (vii) One contusion 7 cm. x 2 ½ cm. on the left shoulder on upper part. (viii) One contusion 11 cm. x 2 ½ cm. on the right side of back in upper part. 14. Injuries No. 1, 3, 4 and 6 of Radhey Sham mentioned above were kept by the witness under observation and other injuries were found simple. According to doctor, injuries to this witness were caused by some blunt weapons and they could be caused on 7.7.1977 itself at 7 a.m. This witness has proved the injury report Ext. Ka 7 prepared by him and the injuries mentioned therein. 15. Medical examination of the injuries of Ram Murat was conducted by this witness Dr. B.M.P Srivastva at 7 p.m. He prepared injury report Ext. Ka 8 for it. This witness found following injuries on the person of Ram Murat; (i) One lacerated wound 4 cm. x 1 cm. x skin deep on the vertex of head. (ii) One incised wound 9 cm. x ¼ cm. x skin deep on the back of neck on the left side vertically. (iii) Complain pain in body. 16. Injury No. 1 was kept under observation and was caused by some blunt weapon. According to this witness, the injury No. 2 was caused by some sharp edged weapon. Cut was simple. These injuries could be caused at about 7 a.m. on 7.7.1977. This witness has also proved the injury report Ext. Ka 8. 17. P.W. 9, H.C. Ram Sukh Singh had taken the dead body of Gopnath in a sealed cover from the spot to the mortuary for post-mortem examination and produced the same before the doctor concerned on 8.7.1977. He identified the dead body. Constable Dudhanth was also with him. After post-mortem examination this witness was given sealed bundle of the wearing apparels of the deceased. He had taken it to the police station and produced the same on 8.7.1977. This witness has further deposed that the dead body and the seal bundle of the clothes was kept intact during the transit. 18. P.W. 8, S.I. Dinanath Mishra is the Investigating Office of the case. He was S.O. at police station Chunar at the relevant time. He had taken it to the police station and produced the same on 8.7.1977. This witness has further deposed that the dead body and the seal bundle of the clothes was kept intact during the transit. 18. P.W. 8, S.I. Dinanath Mishra is the Investigating Office of the case. He was S.O. at police station Chunar at the relevant time. The written Ext. Ka 1 was lodged at the police station in his presence by the complainant Radhey Shyam on 7.7.1977 at 10.30 a.m. On the basis of this report Head Moharrir Kanhaiya Lal prepared the Chik report Ext. Ka 9 and made entries in G.D. as Ext. Ka 10. The above Head Moharrir recorded the injuries of the complainant in the G.D. Ext. Ka 10. Radhey Sham was then sent for his medical examination through constable Umrao Rai. Witness has stated about it and has proved Ext. Ka 9 and Ka 10. He recorded the statement of Radhey Shyam at the police station after the report was lodged. He then reached the spot. He found Lalkesh and Funai lying seriously injured in front of the house of Lalkesh. The dead body of Gopnath was also lying there. He sent Lalkesh and Funai on cots for medical examination with constable Dharmdeo. Lalkesh and Funai were not in a position to speak properly and therefore, he could not record their statement at that time. The injured Ram Murat was not found by him on the spot. He was reported to have gone to Chunar. He recorded the statements of Raghubir and other alleged eye-witnesses. He inspected the spot and prepared site plan Ext. Ka 19. He took the dead body of Gopnath in police custody and prepared ‘Panchayatnama’ Ext. Ka 12. He prepared Photo Lash and Challan Lash Ext. Ka 13 and 14 of the dead body and put the dead body in a sealed box. He prepared sample of seal Ext. Ka 15. He wrote two letters Ext. Ka 16 and 17 for Medical Officer Incharge district hospital Mirzapur. He sent the dead body in sealed cover with necessary papers for its post-mortem examination through constable Ram Sukh Singh and Dudnath. He found blood on the spot where the dead body of deceased Gopnath and the injured Lalkesh and Funai were lying. He collected blood stained and plain earth material Ext. He sent the dead body in sealed cover with necessary papers for its post-mortem examination through constable Ram Sukh Singh and Dudnath. He found blood on the spot where the dead body of deceased Gopnath and the injured Lalkesh and Funai were lying. He collected blood stained and plain earth material Ext. 6 and 7 from the spot in two containers and sealed them. 19. Police searched for the accused. No other accused other than Smt. Sukhdei was found. Smt. Sukhdei was found hiding in sugar cane crop in the north of her house. He arrested her and on her pointing out, he recovered Gandasa material Ext. 1 and Lathi material Ext. 2 from the house of this accused. The Gandasa and lathi were blood stained and were found hidden in the straw inside the Kothari of the house. The witness put them in separate sealed bundle and prepared Fard Ext. Ka 3. He prepared site-plan Ext. Ka 18 from the place of recovery of above Ext. 1 and 2. He recorded the statements of PWs Shyam Lal and Mahender and others. He then sent Smt. Sukhdei accused alongwith sealed containers of blood stained and plain earth and sealed Gandasa and Lathi to police station through S.I. Saraju Ram who produced the above sealed bundle at the police station on 7.7.1977 at 7 p.m. and made entries in G.D. copy of which is Ext. Ka 19. On 9.7.1977 he reached the police station at 9.20 a.m. and made entries in G.D as Ext. Ka 20. This witness has proved Ext. Ka 3 and Ext. Ka 18 to Ka 20 and material Ext. 1 and 2. 20. During the investigation this witness received the application Ext. Ka 21 and telegram Ext. Ka 22 sent by the accused Amardeo. The above documents have been admitted on behalf of the accused under Section 294 Cr.P.C. On 15.7.1977 accused Amardeo, Jawahr, Jiut and appellant No. 4-Mita were arrested and were interrogated. He then received application Ext. Ka 23 sent on behalf of accused Vishwanath by 4 advocates, namely, Chandra Shekar Giri, Ram Narain Singh, Abhay Nath Mishra Rajeshwari Prasad Tripathi. On behalf of the accused, this application has been admitted under Section 294 Cr.P.C. On 22.8.1977. After completing the investigation, charge-sheet Ext. Ka 24 was submitted against all the accused on 4.11.1977. 21. Ka 23 sent on behalf of accused Vishwanath by 4 advocates, namely, Chandra Shekar Giri, Ram Narain Singh, Abhay Nath Mishra Rajeshwari Prasad Tripathi. On behalf of the accused, this application has been admitted under Section 294 Cr.P.C. On 22.8.1977. After completing the investigation, charge-sheet Ext. Ka 24 was submitted against all the accused on 4.11.1977. 21. Statement of the accused were recorded under Section 313 CrPC wherein they have denied the charges and have pleaded not guilty and has stated that in fact the informant side had attacked them in their (accused’s) house and they have been falsely implicated in the present case. 22. The defence in order to prove their case have examined D.W.2, Abhay Nath Mishra, D.W. 1 Dr. S.R. Bhattacharji, D.W. 3, Radhey Sham, Lekhpal, D.W. 1 Dr. S.R. Bhattacharji who examined the injuries of appellant No. 4-Mita, Jiut, appellant No. 3-Jawahar and Amardeo on 7.7.1977 and prepared the injury reports and proved the same as Ext. Kha 14 to Kha 17. He has also proved the x-ray report Ext. Ka 18 and x-ray plate material Ext. 8. 23. Trial Court after perusing the oral and documentary evidence as well as the entire record of the case convicted and sentenced the accused as mentioned in the earlier part of the judgment. Hence, the present appeal. 24. At the very outset, learned counsel for the surviving appellant No. 3-Jawahar and appellant No. 4-Mita has confined his argument only to the extent that in view of the evidence on record the case of appellant No. 3-Jawahar would fall under Section 304 Part II of IPC and not under Sections 302/149 and 307/149 IPC. He further submitted that the case of appellant No. 4-Mita would not travel beyond Section 323/149 IPC. 25. It was further submitted that during the course of incident, even according to the prosecution, initially there was quarrel and sudden fight between Lal Kesh and Amardeo. However, the informant side alongwith the deceased themselves intervened in the matter and there was no premeditation or intention to cause any death or any serious injuries to the alleged victims. It was further submitted that admittedly the accused side has also sustained injuries and one of the accused namely Amardeo, appellant No. 2 has sustained fracture injury and no explanation whatsoever has been given by the prosecution with regard to injuries sustained by the accused persons. It was further submitted that admittedly the accused side has also sustained injuries and one of the accused namely Amardeo, appellant No. 2 has sustained fracture injury and no explanation whatsoever has been given by the prosecution with regard to injuries sustained by the accused persons. As such, this conduct on the part of the prosecution clearly shows that origin and genesis of the occurrence have been suppressed by the prosecution and the prosecution has not come with clean hands. It is further submitted that the injury sustained by the accused person have been duly proved by Dr. R.S. Bhattacharya. Learned counsel for the appellant has further claimed benefit of Exception 4 of Section 300 IPC and stated that the alleged offence committed by the appellant No. 3-Jawahar would at the most be a case of culpable homicide not amounting to murder attracting Section 304 Part II IPC and under no circumstances, could he be convicted under Section 302/149 IPC. In support of his contention, he has placed reliance upon the decision in the case of Ankush Shivaji Gaikward v. State of Maharashtra, (2013) 6 SCC 770 and K. Ravi Kumar v. State of Karnataka, 2014 (13) JT 294 . 26. Learned counsel for the appellants further placed reliance on the decision of the Supreme Court in case of Subramain v. State, 2002 (7) SCC 2010, on the point that prosecution is duty bound to explain injuries on accused otherwise the entire genesis of the prosecution case would become doubtful. He further submitted that the only role assigned to appellant No. 4-Mita is of causing injuries by Lathi but none of the injuries caused by him were dangerous to life. It is further submitted that the appellant No. 4-Mita did not share common object with other members of unlawful assembly to cause any fatal injury to the deceased and therefore, the case of Appellant No. 4-Mita will not travel beyond Section 323 read with Section 149 IPC. 27. It is further submitted that the appellant No. 4-Mita did not share common object with other members of unlawful assembly to cause any fatal injury to the deceased and therefore, the case of Appellant No. 4-Mita will not travel beyond Section 323 read with Section 149 IPC. 27. In support of his contention with regard to the role of appellant No. 4-Mita, learned counsel for the appellants has placed his reliance upon the decisions in the case of Roy Fernandes v. State of Goa and others, (2012) 3 SCC 221 and Bharat Soni and others v. State of Chhattisgarh, (2012) 12 SCC 657 (paras 13 to 23), on the point that merely an assailant forming unlawful assembly with minor role may not have the same intention as that of the main accused, warranting conviction under major Section with the help of 149 IPC. 28. It was further submitted by the learned counsel for the appellants that the injuries sustained by the accused-appellants’ side were examined prior to the medical examination of the informant side on the fateful day. 29. Per contra, learned AGA Sri Rajiv Gupta has submitted that the date, time and place of incident has not been disputed or challenged rather it has been admitted by the defence, as such, there is no dispute with regard to the date, time and place of incident. He further submitted that the injuries suffered by the prosecution side have been proved. The post-mortem report completely corroborates the ocular evidence. He further submitted that the Court below has rightly convicted Appellant No. 3-Jawahar, and appellant No. 4-Mita, inter alia, under Sections 302/149. He further submitted that the entire role of the appellants is to be seen in the light of attending circumstances and it cannot be said that the appellant No. 3-Jawahar and Appellant No. 4-Mita were not sharing common object with other members of the unlawful assembly when exhortation was made by other co-accused to kill the alleged victims. Moreover, the appellant No. 4 knew in all probability that the weapon Gandasa, which is being used by other co-accused, would likely to cause the death of the deceased Gopnath, as such, the appellant No. 4-Mita was also rightly convicted by the trial Court, inter alia, under Section 302/149 IPC. 30. Moreover, the appellant No. 4 knew in all probability that the weapon Gandasa, which is being used by other co-accused, would likely to cause the death of the deceased Gopnath, as such, the appellant No. 4-Mita was also rightly convicted by the trial Court, inter alia, under Section 302/149 IPC. 30. In support of his contention, learned AGA has placed reliance upon the decision of Apex Court in the case of Sucha Singh and another v. State of Punjab, (2003) 7 SCC 643 , wherein the Apex Court has held that failure to explain injuries on the accused will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. 31. We have heard Sri D.K. Singh, learned counsel for the appellants, Sri Rajiv Gupta, learned AGA and perused the entire material available on record. 32. As already referred to in the earlier part of this judgment, during the pendency of this appeal, the appellants Vishwanath, Amar Deo, Smt. Sukhdei and Jiut have died and their appeals have been dismissed as abated, as such, we have to examine the culpability of the appellant No. 3-Jawahar and appellant No. 4-Mita in the commission of the alleged crime. 33. It is not disputed that the alleged incident had taken place on 7.7.1977 at about 7 a.m. in which Gopnath was murdered and Lalkesh, Radhey Sham, Ram Murat and Funai suffered injuries. Neither the date, time or place of incident has been disputed nor it has been challenged. P.W. 1 Radhey Sham and P.W. 2 Lalkesh who suffered injuries in the incident have deposed in support of the prosecution story in their evidence. P.W. 3, Raghubir who is said to be an eye-witness of the occurrence has also corroborated the evidence of Pws Radhey Sham and Lalkesh. The injuries of the prosecution witnesses as well as of the injuries sustained by the defence side have been proved. It has come on record that an application as well as telegram was sent by the accused Appellant No. 2 Amardeo against the informant side soon after the incident on 7.7.1977. The injuries of the prosecution witnesses as well as of the injuries sustained by the defence side have been proved. It has come on record that an application as well as telegram was sent by the accused Appellant No. 2 Amardeo against the informant side soon after the incident on 7.7.1977. However, the investigating officer after some preliminary enquiry dropped the matter and no further action was taken up on the said complaint. The story set up by the defence side that the informant side had reached their house and started assaulting them, and during the course of fighting both the sides suffered injuries, has been disbelieved by the trial Court. 34. The perusal of the FIR as well as testimony of the eye-witnesses shows that after the exchange of hot words and abuses between Lal Kesh and Amardeo, co-accused Vishwanath exhorted the accused side who had arrived at that time and instigated the accused by uttering the words Þekjks lkyks dksÞ - On his exhortation after the quarrel had reached a certain pitch Amardeo rushed to his house which was in close vicinity and asked for the Gandasa. The accused Smt. Sukhdei went inside her house and brought two Gandasas. One Gandasa was given to her husband Amardeo, Appellant No. 2 and another one to her son Jawahar, Appellant No. 3 and in the meantime, accused appellant No. 4-Mita and Jiut (two other sons of Amardeo) also came on the spot alongwith Lathis from their house. The accused Amardeo allegedly gave a Gandasa blow on the leg of Lalkesh. Lalkesh sustained Gandasa injuries and fell down. When Gopnath intervened, the accused Jiut, Appellant No. 5 and appellant No. 4-Mita, Appellant No. 4-Jawahar gave Lathi blows to him. And the accused appellant No. 3-Jawahar then gave a Gandasa blow on his back, around 4 cm below the base of neck of Gopnath. When Radhey Shyam S/o Gopnath, Funai and Ram Murat intervened, the accused side gave Gandasa and Lathi blows to them also. The accused Vishwanath and Smt. Sukhei were instigating the other accused standing nearby. Hearing the noise Mahanand, Sarada Singh, Raghubir, Ram Narain and Hausala arrived at the spot. They witnessed this incident. The accused then fled away. Gopnath died on the spot. Lalkesh, Funai, Radhey Shyam and Ram Murat sustained numerous injuries. The accused Vishwanath and Smt. Sukhei were instigating the other accused standing nearby. Hearing the noise Mahanand, Sarada Singh, Raghubir, Ram Narain and Hausala arrived at the spot. They witnessed this incident. The accused then fled away. Gopnath died on the spot. Lalkesh, Funai, Radhey Shyam and Ram Murat sustained numerous injuries. Radhey Syam then went to police station Chunar and lodged a written report of the incident there on the same day at 10.30 a.m.. The police registered the case and after investigation submitted the charge-sheet against the accused on 4.11.1977. P.W. 1, Radhey Shyam is the son of deceased Gopnath, who also sustained injuries in the said incident has narrated whole incident and proved the FIR Ext. Ka 1. Injury reports and the post-mortem report has already been discussed in the earlier part of this judgment and we need not repeat the same. 35. A perusal of the record shows that the defence side has also sustained several injuries including the fracture injury by the accused Amardeo. It would be relevant at this stage to refer to the injuries sustained by the accused side namely appellant No. 4-Mita, Jiut, appellant No. 3-Jawahir and Amardeo which are as follows: 1. Mita (appellant No. 4) 1. Abraded contusion 2cm x 1.5cm on the shoulder. 2. Bruise 8cm x 7 cm on the point surface of the hand 2 cm below the wrist. 3. Lacerated wound 1.5 cm x 1 cm x ¾ cm on the lower end of left ring finger Injury No. 1 is simple and Injury Nos. 2 and 3 kept observation advised X-ray and caused by blunt object. Duration about ½ day. 2. Jiut 1. Contusion 5cm x 5 cm on the outer side of left arm and elbow 2. Lacerated wound by ¾ cm into ¼ cm x skin deep on the head left side 7cm above left ear. 3. Bruise 2 cm x 1 cm on the point surface of the fore arm 7 cm below the elbow. 3. Jawahir (appellant No. 4) 1. Bruise 3 cm x 2 cm on the head left side 7cm above left ear. 2. Bruise 6 cm x 2 cm on the outer side of the left arm 4 cm above left elbow. 3. Contusion 3cm x 1 cm on the back left side lower part. 4. Bruise 2 cm. X 2 cm. Jawahir (appellant No. 4) 1. Bruise 3 cm x 2 cm on the head left side 7cm above left ear. 2. Bruise 6 cm x 2 cm on the outer side of the left arm 4 cm above left elbow. 3. Contusion 3cm x 1 cm on the back left side lower part. 4. Bruise 2 cm. X 2 cm. On the outer side of the ankle. Injuries are simple and caused by blunt weapon. Duration about half day. 4. Amardeo 1. Bruise 9 cm x 6 cm on the post. surface of forearm 2 cm above the wrist joint fr. of the ulna bone under the Inj. 2. Contusion 3cm x 1.5 cm on the left shoulder. 3. Contusion 6 cm x 1.5 cm on the left shoulder above and back. 4. Contusion 8 cm x 1.5 cm on the back left side 2 cm above left iliac crest. 5. Bruise 4 cm x 3 cm on the outer side of the left thigh at the middle. Injury No. 1 is grievous advised Xray for confirmation. Injury No. 4 kept under observation. Advised X-ray. Other injuries are simple. The injuries caused by blunt weapon. Duration ½ day. 36. The main contention of the learned counsel for the appellants is that the omission on the part of prosecution side to explain the injuries on person of the accused give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version. 37. In the present matter, one Gopesh has been killed and injuries have been sustained by the informant side namely Lalkesh, Radhey Shyam, Ram Murat and Funai. Defence side has also sustained several injuries including the fracture injury. The Apex Court in the case of Sucha Singh and another v. State of Punjab (supra) in paragraphs 24 to 26 has held as follows; “24. One of the pleas is that the prosecution has not explained the injuries on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai v. The State of Bihar, 1968 (3) SCR 525 , it was observed: (AIR p. 1284, para 6) “In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.” In another important case Lakshmi Singh and others v. State of Bihar ( 1976 (4) SCC 394 ), after referring to the ratio laid down in Mohar Rai’s case (supra), this Court observed: “Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.” It was further observed that: (SCC p. 401, para 12) “In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.” 25. In Mohar Rai’s case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. In Mohar Rai’s case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh’s case (supra) it is observed that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and others v. State of U.P. ( AIR 1990 SC 1459 ). 38. The Apex Court in the case of Jagdish v. State of Rajasthan, 1979 AIR 1010, has observed as follows; “We have gone through the judgment of the High Court which has given cogent reasons for holding that the Trial Court Judge was absolutely wrong in acquitting the appellant of the charge under s. 302 I.P.C. The injuries found on the deceased were very severe which resulted in fracture of the scalp on the left perietal bone and also a fracture of the temporal bone. These were the two injuries which according to the prosecution were the cause of the death of the deceased Jairam. The Sessions Judge was of the opinion that as some of the accused persons had also injuries it was a case of mutual assault and therefore, there was no intention to cause murder. The High Court has rightly pointed out that the findings of the Sessions Judge are not based on a proper appreciation of the evidence. It is true that the accused had some injuries on their persons. The injuries on their persons were extremely superficial and could be easily explained. As regards Nanda, it is true that he had five injuries out of which two are contused wounds. It was the evidence of D.W. 1 that he examined the injuries on 25-6-67 i.e. two to four days after the occurence. The injuries on their persons were extremely superficial and could be easily explained. As regards Nanda, it is true that he had five injuries out of which two are contused wounds. It was the evidence of D.W. 1 that he examined the injuries on 25-6-67 i.e. two to four days after the occurence. It has not been proved that all the injuries sustained by him were sustained in the course of altercation which resulted in the death of the deceased, so as to lay the burden on the prosecution to explain the presence of these injuries. Even the contusions are not of serious nature. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied; 1. that the injuries on the person of the accused must be very serious and severe and not superficial; 2. that it must be shown that these injuries must have been caused at the time of the occurrence in question.” 39. The main contention of the learned counsel for the appellants is that the case of Jawahar, Appellant No. 3, inter alia, would not fall under Section 302/149 IPC in view of the evidence available on record but it would fall at the most under Section 304 Part II IPC. The appellants cannot be fastened for committing the offence of murder and the alleged act would only come within the category of culpable homicide not amounting to murder attracting Section 304 Part II IPC and under no circumstances, he could have been convicted under Section 302/149 IPC. In order to appreciate the argument of the learned counsel for the appellants, the provisions of Explanation 4 of Section 300 IPC is quoted hereinbelow; “Fourthly —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 40. In order to invoke the applicability of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that it is not premeditated; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 41. Facts and circumstance of the case clearly shows that all the accused-appellants namely Amardeo, Jiut, appellant No. 4-Mita and appellant No. 3-Jawahar sustained several injuries on their person including fracture injury by the accused-appellant Amardeo. The bare perusal of the FIR as well as the testimonies of the prosecution witnesses goes to show that no explanation whatsoever has come forth to explain the injuries of the defence side. It is also notable that the injuries of the accused were examined prior to the medical examination of the prosecution witnesses. Thus the aforesaid facts clearly reveal that the prosecution side has suppressed the genesis and the origin of the incident and has not come with clean hands. 42. Story of the defence side that the informant side had attacked their house and in the course of mar-pit, the informant side accidentally assaulted and inflicted Gandasa injuries on deceased Gopnath as a result he died on the spot is not inspiring. 43. The complaint was sent by the appellant Amardeo (since deceased) to the police authorities but the investigating officer after making preliminary enquiry did not proceed further. The injuries sustained by the defence has been duly proved and were examined on the fateful day much prior to the medical examination of the prosecution side. Thus the non explanation of injuries caused to the defence side creates dent in the prosecution story and it cannot be denied keeping in view the over all facts and circumstances as it is borne out from the record, the injuries to the accused have been caused during the course of the same transaction in which the prosecution side sustained injuries. 44. The quarrel between Amardeo and Lalkesh had taken place over grazing of she-Buffalo of Amardeo in the maze field of Lalkesh which was followed by mutual abuses and the quarrel escalated into a serious incident. 44. The quarrel between Amardeo and Lalkesh had taken place over grazing of she-Buffalo of Amardeo in the maze field of Lalkesh which was followed by mutual abuses and the quarrel escalated into a serious incident. A perusal of the record shows that both sides suffered injuries on their person, as such, it cannot be said that it was only a one sided affair and only the informant side was beaten. In fact the evidence available on record clearly shows that violence was used by both sides after a verbal wrangling. From a perusal of the injuries sustained by the defence side it cannot be said that they were only simple or superficial. Admittedly, Amardeo received fracture injury. The accused side has also received injuries on their vital parts. Their injuries have been duly proved by Dr. S.R. Bhattacharji who has examined them on the very same day of the occurrence much prior to the medical examination of the informant side. 45. Facts and circumstances borne out from the record clearly indicates that the dispute had cropped up over the trifling issue of grazing of the cattle of accused Amardeo into the maize field of Lalkesh which was followed by abuses and mutual fight between the parties. At the very inception of the quarrel, none of the accused were carrying any weapon in their hands. There is no evidence of pre-planning. It is only when the quarrel escalated and developed into a fight and in the heat of the moment, the appellants picked up the Gandasa and Lathis in the course of which both the sides received injuries and resultant death of Gopnath. Thus crime was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Post-mortem examination report reveals that the deceased Gopnath had received only two injuries. The first injury has been received on back of chest, upper part in middle 4cm below the base of the neck caused by sharped edged weapon i.e. Gandasa and the second injury which the deceased received on his leg is superficial/simple in nature caused by blunt object probably by Lathi. Specific role has been assigned in the FIR as well as in the prosecution testimonies to appellant No. 3-Jawahar of causing injury No. 1 by sharp edged weapon Gandasa to the deceased. Jiut and appellant No. 4-Mita have been assigned the role of using Lathis. Specific role has been assigned in the FIR as well as in the prosecution testimonies to appellant No. 3-Jawahar of causing injury No. 1 by sharp edged weapon Gandasa to the deceased. Jiut and appellant No. 4-Mita have been assigned the role of using Lathis. It is notable that the appellant No. 3-Jawahar has not repeated the Gandasa blow on the deceased as the deceased has sustained only one injury from Gandasa and apart from this there is only one superficial/simple injury caused on his non-vital part by Lathi. Testimonies of the witnesses show that no specific role has been assigned to Appellant No. 3-Jawahar of causing Gandasa injury to any of the other injured. Amardeo (now deceased) was also assigned the role of causing Gandasa injuries to the prosecution side and use of Lathis was specifically assigned to the accused Appellant No. 4-Mita as well as Jiut (now deceased). 46. Since the injury inflicted by Gandasa was not repeated by the appellant No. 3-Jawahar, it shows that he had not taken undue advantage or acted in a cruel or unusual manner or had any intention of causing death of such deceased. The whole episode had culminated into a serious incident due to heat of passion in a sudden fight up on a sudden quarrel over the issue of grazing of cattle of Amardeo in the maize field of Lalkesh. It is true that both the sides were having strained relations but the alleged incident had taken place merely over the trifling issue of grazing of cattle and none of the accused were armed with any weapon from its very inception. It was only when the passion arose and the quarrel escalated into a serious incident, in the heat of the moment, sudden fight ensued upon the exhortation of Vishwanath resulting into the death of Gopnath. 47. The circumstances clearly show that the incident in question took place on a sudden fight without any pre-meditation and the accused Jawahat hit the deceased with Gandasa in the heat of passion upon a sudden quarrel and without the appellants having taken undue advantage or acted in a cruel and unusual manner. Thus, we find considerable merit in the contention of the counsel for the appellant that the case of appellant No. 3-Jawahar would fall under Exception IV of Section 300 IPC. Thus, we find considerable merit in the contention of the counsel for the appellant that the case of appellant No. 3-Jawahar would fall under Exception IV of Section 300 IPC. Even according to the prosecution version, there was no pre-meditation in the commission of the crime. There is not even a suggestion that the appellants due to enmity or motive had committed the alleged offence. The exchange of hot words in the quarrel over grazing of cattle into the field of Lalkesh lead to sudden fight which in turn culminated in the deceased Gopnath being hit with Gandasa unfortunately on the back of the deceased 4cm. Below the base of the neck. The deceased was not given second blow of Gandasa. Thus, the circumstances show that the appellant No. 3-Jawahar has not acted in a cruel and unusual manner in the prevailing situation so as to deprive him of the benefit of Exception 4 of Section 300 IPC. 48. At this juncture, it would be appropriate to refer to the decision of the Apex Court in the case of Ankush Shivaji Gaikward v. State of Maharashtra, (2013) 6 SCC 770 , wherein in paragraphs 14, 15 and 16 it has been held by the Apex Court as follows; “14. We may also refer to the decision of this Court in Ghapoo Yadav and others v. State of M.P., (2003) 3 SCC 528 , where this Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: “...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight: (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d)11. The following passage from the decision is apposite: “...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight: (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d)11. We may also refer to the decision of this Court in Ghapoo Yadav and others v. State of M.P., (2003) 3 SCC 528 , where this Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: “...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight: (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300. IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. 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 cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.” xxx xxx xxx ...After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased....This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable...” (emphasis supplied) 15. In Sukbhir Singh v. State of Haryana, (2002) 3 SCC 327 , the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 IPC. In cases where after the injured had fallen down, the appellant did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed: “...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. The Court observed: “...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner.” (emphasis supplied) 16. Reference may also be made to the decision in Mahesh v. State of M.P., (1996) 10 SCC 668 , where the appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 IPC. This Court held: “4....Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present also with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part-I) IPC...” (emphasis supplied) 49. Now, next question before us is whether the case of appellant No. 3-Jawahar would fall under Section 304 Part I or Part II of the IPC. 50. Now, next question before us is whether the case of appellant No. 3-Jawahar would fall under Section 304 Part I or Part II of the IPC. 50. As already discussed herein above, the incident in question took place in a sudden fight without pre-meditation and the act of the appellant hitting the deceased with Gandasa was committed in the heat of the passion upon a sudden quarrel without the appellant having taken any undue advantage or acted in a cruel and unusual manner. The blow of Gandasa, admittedly, was not repeated by the appellant No. 3-Jawahar. Had there been any intention of causing death of the deceased, he definitely would have inflicted second blow. The deceased Gopnath had suffered only one injury by a sharp edged weapon inflicted by appellant No. 3-Jawahar which proved to be fatal. There were bilateral transaction in which the blows were exchanged by both the parties. Since both the sides have received injuries, it cannot be said that the aggression was only one sided in sudden altercation and fight between the parties. The deceased who tried to intervene in the quarrel received fatal injury at the spur of the moment in the heat of passion. It is notable that there was no sufficient lapse of time between the quarrel and fight which indicates that the quarrel was all of sudden. The assaults were made at random. It is not the case of prosecution that the appellant had come prepared armed with weapons for attacking the informant side. The weapons were picked up by the appellants from the spot after the quarrel ensued between the parties. 51. Facts and circumstances of the present case clearly shows that there was no intention of the appellant No. 3-Jawahar to cause death of the deceased Gopnath but since the injury was being inflicted by a lethal weapon on a vital part of the body, the person ought to have known that such assault may result into the death. If that is done with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death, the matter would fall withing the purview of II of Section 304 IPC and not under Section 302 IPC read with Section 149 IPC. 52. If that is done with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death, the matter would fall withing the purview of II of Section 304 IPC and not under Section 302 IPC read with Section 149 IPC. 52. We are also fortified in our view by the decision of the Apex Court in the case of Ankush Shivaji Gaikwad (supra) wherein in paragraphs 22 and 23 it has been held as follows; “22. In Camilo Vaz v. State of Goa, (2000) 9 SCC 1 , the accused had hit the deceased with a danda during a premeditated gang-fight, resulting in the death of the victim. Both the Trial Court and the Bombay High Court convicted the appellant under Section 302 I.P.C. This Court, however, converted the conviction to one under Section 304, Part II, I.P.C. and observed: “....When a person hits another with a danda on a vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in Part II of Section 304, IPC as in the present case...” (emphasis supplied) 23. In Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 , the accused had given a blow on the head of the deceased with the blunt side of a gandhala during a sudden fight causing a fracture to the skull and consequent death. This Court altered the conviction from Section 302 to Section 304, Part II IPC placing reliance upon the decision in Chamru Budhwa v. State of Madhya Pradesh, AIR 1954 SC 652 , in which case also the exchange of abuses had led both the parties to use lathis in a fight that ensued in which the deceased was hit on the head by one of the lathi blows causing a fracture of the skull and his ultimate death. The accused was convicted for the offence of culpable homicide not amounting to murder under Section 304 Part II IPC”. 53. In the above backdrop, now we have to examine, the case of the appellant No. 4-Mita who has been assigned the role of causing injuries by Lathi. The accused was convicted for the offence of culpable homicide not amounting to murder under Section 304 Part II IPC”. 53. In the above backdrop, now we have to examine, the case of the appellant No. 4-Mita who has been assigned the role of causing injuries by Lathi. The case of appellant No. 4-Mita is clearly distinguishable from the case of appellant No. 3-Jawahar about whom we have come to the conclusion that he is inter alia liable to be convicted under Section 304 Part II of IPC. 54. Learned counsel for the appellant has vehemently argued that the case of the appellant No. 4-Mita would not travel beyond Section 323 IPC. Admittedly, the deceased has received only one injury from a hard blunt object i.e. Lathi on his non vital part and the injury appears to superficial/simple in nature. Apart from appellant No. 4-Mita, the other accused Jiut has also been assigned the role of using Lathi. During the said incident, other persons from prosecution side too have received injuries from Lathis but non of the injuries can be said to be dangerous to life. This Court has already reached to the conclusion that the entire incident was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the offender taking any undue advantage or acted in a cruel and unusual manner. Now, the question crops up before us is whether the appellant No. 4-Mita who has been assigned the role of using Lathi can be said to be having a common object with other accused who inflicted injuries by sharp-edged weapon i.e. Gandasa. The assaults were made at random. It is not the case of the prosecution that the appellants had come prepared and armed with weapons for attacking the prosecution side. Both sides, admittedly, have received injuries, as such, there was bilateral transactions. The deceased had received only one superficial/simple injury on his non vital part from a hard blunt object i.e. Lathi, as such, it cannot be said that this appellant was also sharing the common object alongwith the other co-accused who were armed with Gandasa. 55. At this juncture, it would be useful to refer to Section 149 IPC in order to examine the liability of the Appellant No. 4-Mita on the principle of vicarious constructive liability contained under Section 149 IPC. 55. At this juncture, it would be useful to refer to Section 149 IPC in order to examine the liability of the Appellant No. 4-Mita on the principle of vicarious constructive liability contained under Section 149 IPC. The aforesaid provision of the IPC is in the following terms; “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. 56. An assembly of five or more persons having as its common object any of the five objects enumerated under Section 141 of the IPC is deemed to be an unlawful assembly. Membership of an unlawful assembly is itself an offence punishable under Section 143 whereas other species of the said offence are dealt with under Sections 143 to 145 of the IPC. Similarly, Sections 146 to 148 of the IPC deals with the offence of rioting which is defined to be use of force or violence by any member thereof. Section 149makes every member of an unlawful assembly liable for offence that may be committed by any member of the unlawful assembly in prosecution of the common object of that assembly or for commission of any offence that the members of the assembly knew to be likely to be committed in prosecution of the common object of the assembly. 57. Section 149 IPC, therefore, engrafts a principle of vicarious or constructive liability inasmuch as a person would be guilty of an offence, though he may not have directly committed the same if as a member of an unlawful assembly he had shared a common object with the other members to commit such an offence or if he knew that such offence was likely to be committed in prosecution of the common object of the assembly of which he was a member. 58. In this regard it is relevant to refer to the prinicipal enunciated by the Apex Court in the case of Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324 , in paragraph 13 of the judgment as follows; “39. 58. In this regard it is relevant to refer to the prinicipal enunciated by the Apex Court in the case of Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324 , in paragraph 13 of the judgment as follows; “39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of lawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.” 59. The facts and circumstances and the evidence borne out from the record in the present case do not attribute Appellant No. 4-Mita with the knowledge that the offence of murder was likely to be caused or to occur in prosecution of the common object. At best what can be said and held is that the common object of the assembly of the accused was to teach a lesson or to overawe and not to commit murder. 60. Nothing has been proved or established to show that the commission of offence of murder of deceased was itself the common object of the unlawful assembly. It is true that Appellant No. 3-Jawahar had inflicted Gandasa injury on the vital part of the deceased but it cannot be said that he was sharing common object to know that murder was likely to be committed of the deceased. 61. Sudden action of one of the member of the unlawful assembly would not constitute the act in prosecution of the common object of unlawful assembly. The members of the unlawful assembly may not be knowing that such offence causing death was likely to be committed by any member of the assembly. The effect of Section 149 IPC may be different on different members of same unlawful assembly. 62. The members of the unlawful assembly may not be knowing that such offence causing death was likely to be committed by any member of the assembly. The effect of Section 149 IPC may be different on different members of same unlawful assembly. 62. In the case of Gajanand and others v. State of Uttar Pradesh, AIR 1954 SC 695 , the Apex Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai v. Emperor, AIR 1946 Pat 242 : “Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise”. 63. The expression ‘knew’ as provided under Section 149 IPC does not mean a mere possibility, such as ‘might’ or ‘might not’ happen. All the members of the unlawful assembly must be fully aware of that likelihood in order to apply the principal of vicarious or constructive liability. In this context, it is pertinent to refer to the decision of the Apex Court in the case of Shambhu Nath Singh and others v. State of Bihar, AIR 1960 SC 725 , wherein it was held as follows; “6.... members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object.” 64. The facts and circumstances of the present case shows that the dispute between Lalkesh and Amardeo, father of Appellant No. 3-Jawahar and Appellant No. 4-Mita arose on the issue of grazing of cattle in the field of Lalkesh. Sudden quarrel immediately escalated into a fight, whereupon in the heat of passion Appellant No. 4-Mita too reached the spot carrying Lathi. The facts and circumstances of the present case shows that the dispute between Lalkesh and Amardeo, father of Appellant No. 3-Jawahar and Appellant No. 4-Mita arose on the issue of grazing of cattle in the field of Lalkesh. Sudden quarrel immediately escalated into a fight, whereupon in the heat of passion Appellant No. 4-Mita too reached the spot carrying Lathi. There was absolutely no pre-planning. The evidence clearly shows that everything moved too quickly and unexpectedly taken an ugly turn. Merely being aware that Appellant No. 3-Jawahar was armed with Gandasa would not be saddled with ‘knowledge’ within the meaning of Section 149 IPC that Gandasa would be used for causing death. The expression “knew” as provided under Section 149 of the IPC does not mean that a mere possibility, such as might or might not happen. Section 149 IPC requires much more than that. 65. The Apex Court in the case of Ram Charan Rai v. Emperor (supra) has observed that members of the unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object. The effect of Section 149 IPC may be different on different members of same unlawful assembly. 66. The Appellant No. 4-Mita was only carrying a non-lethal weapon i.e. Lathi and only a superficial injury has been caused by Lathi to the deceased Gopnath and none of the injuries caused to other injured by Lathi can be said to be dangerous to life. 67. The fight had taken place in the heat of passion without any pre-meditation. The nature of weapon used by the appellant No. 4-Mita and the injury caused by him to the deceased as well as the other injured were not dangerous to life but definitely the intention was there to overawe and teach a lesson to the informant side. Facts and circumstances of the case clearly indicates that the case of the accused appellant No. 4-Mita neither would fall under Section 302/149 IPC nor under Section 307/149 IPC but in our view the case would definitely fall, inter alia, under Section 325/149 IPC. Facts and circumstances of the case clearly indicates that the case of the accused appellant No. 4-Mita neither would fall under Section 302/149 IPC nor under Section 307/149 IPC but in our view the case would definitely fall, inter alia, under Section 325/149 IPC. The Court below has erred in ignoring and not giving due regard to the injuries sustained by the accused side which were duly proved by Dr. S.R. Bhattacharji. In fact the trial Court has not even discussed the injuries of the accused persons sustained by them and has misinterpreted and misconstrued the deposition of D.W. 1, Dr. S.R. Bhattacharji. From the perusal of the record, it appears that the prosecution chose to suppress the genesis and origin of the occurrence and has not presented the true version at all. The prosecution showed feigned ignorance about the injuries suffered by the appellants side. The Court below appears to have adopted an erroneous approach illegally convicting appellant No. 4-Mita inter alia under Section 302, 307 IPC read with Section 149 IPC although he was assigned the role of using Lathi and a very superficial injury appears to have been caused by Lathi to the deceased Gopnath on his non-vital part. 68. It may also be noted that the alleged offence was committed in the year 1977 and now more than 37 years have lapsed after the commission of the alleged offence. Now both the appellants must be aged about 64 years. Perusal of the record shows that the Appellant No. 3-Jawahar and the Appellant No. 4-Mita have no criminal antecedents or involvement in any case before or after the incident in question. 69. Thus, on the basis of foregoing discussions, the appeal deserves to be allowed in part and accordingly the same is partly allowed only to the extent that instead of Section 302 IPC, the accused appellant No. 3-Jawahar shall stand convicted for the offence culpable homicide not amounting to murder under Section 304 Part II of the IPC. He is convicted and sentenced to undergo rigorous imprisonment for five years under Section 304 Part II of the IPC. He is convicted and sentenced to undergo three years rigorous imprisonment under Section 325/149 IPC alongwith fine of Rs. 5,000. In default of payment of fine, he shall undergo rigorous imprisonment for additional one year. He is convicted and sentenced to undergo rigorous imprisonment for five years under Section 304 Part II of the IPC. He is convicted and sentenced to undergo three years rigorous imprisonment under Section 325/149 IPC alongwith fine of Rs. 5,000. In default of payment of fine, he shall undergo rigorous imprisonment for additional one year. Under Section 148 IPC, he is convicted and sentenced to undergo one year rigorous imprisonment and under Sections 323/149 IPC he is convicted and sentenced to undergo six months rigorous imprisonment. 70. We also partly allow the appeal of the accused appellant appellant No. 4-Mita. The appellant No. 4-Mita shall stand convicted for the offence under Sections 325/149 IPC and sentenced to undergo rigorous imprisonment of three year alongwith fine of Rs. 5,000. In default of payment of fine, he shall undergo rigorous imprisonment for additional one year. Under Section 147 IPC, he is convicted and sentenced to undergo one year rigorous imprisonment and under Sections 323/149 IPC he is convicted and sentenced to undergo six months rigorous imprisonment. 71. All the sentences shall run concurrently. The period spent previously by the accused appellants in jail be adjusted against the period of their sentences. 72. Appellants No. 3 and 4 namely Jawahar and Mita respectively are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the remaining sentence imposed upon him by this Court. In case, they fail to surrender, as directed above, the Chief Judicial Magistrate concerned is directed to take coercive action against them in this regard. 73. Copy of this judgment alongwith lower Court record be sent immediately to the concerned Sessions Judge and Chief Judicial Magistrate for compliance. 74. Compliance report be also sent to this Court.