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Allahabad High Court · body

2017 DIGILAW 73 (ALL)

MISRI LAL v. STATE OF U. P.

2017-01-06

A.K.MUKHERJEE, BHARAT BHUSHAN

body2017
JUDGMENT Hon’ble Bharat Bhushan, J.—This appeal is directed against the judgment and order dated 12.5.1983 passed by the then Vth Additional Sessions Judge, Allahabad in Sessions Trial No. 79 of 1980 (State v. Mishri Lal and others) arising out of Case Crime No. 8 of 1978, Police Station Nawabganj, District Allahabad whereby the appellant Mishri Lal was convicted under Section 302 IPC read with Section 34 IPC and Section 307 IPC and sentenced to life imprisonment and Rigorous Imprisonment for seven years respectively. Remaining appellants namely Indra Gopal, Bare Lal and Umesh Chandra were also convicted under Section 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC and sentenced for life imprisonment and rigorous imprisonment for 7 years respectively. All the sentences of all the appellants in this case were directed to run concurrently. 2. Appellant No. 1 Mishri Lal and appellant No. 3 Bare Lal have died therefore appeals filed on their behalf stand abated vide orders dated 16.4.2014 and 26.5.2014 respectively. This Court is now concerned only with the appeals of Indra Gopal and appellant No. 4 Umesh Chandra. 3. Prosecution story in brief is that on 16.1.1978, deceased Brahma Nand, Jai Ram (P.W-2), informant-Ram Murat (P.W.-1) and Basdeo etc went to Kaurihar market to make purchases. Deceased Brahma Nand went on to Block Road away from complainant and his companions. Suddenly, at about 3 p.m. a commotion erupted. Complainant, his other companions of same village, Jagannath of Bhikhampur and Ram Sharan @ Lusuru of Dasapur etc ran towards source of commotion and saw that late appellants Mishri Lal, holding a gun, his sons appellant Indra Gopal @ Nankau and late appellant Bare Lal wielding Lathies and appellant Umesh Chandra armed with spear (cjNk) had surrounded deceased Brahma Nand. Late Mishri Lal was using gun for keeping intervenors at bay while other accused persons namely Indra Gopal @ Nankau, Late Bare Lal and Umesh Chandra were beating Brahma Nand. As more and more people gathered on the spot, accused persons left Brahma Nand and ran away. Informant and his nephew Jai Ram (P.W.-2) chased the appellants, whereupon Late Mishri Lal turned around and fired a shot at Jai Ram who too was wounded and fell down on the road. In the same incident Brahma Nand also sustained several injuries. As more and more people gathered on the spot, accused persons left Brahma Nand and ran away. Informant and his nephew Jai Ram (P.W.-2) chased the appellants, whereupon Late Mishri Lal turned around and fired a shot at Jai Ram who too was wounded and fell down on the road. In the same incident Brahma Nand also sustained several injuries. Both injurds were sent to Kaurihar Primary Health Centre (PHC) while P.W.-1 Ram Surat got the First Information Report (FIR) scribed by one Amarnath Yadav and lodged it at 4.45 p.m. at Police Station Nawabganj, District Allahabad. 4. Later on, Brahma Nand succumbed to his injuries and died while on his way to T. B. Sapru Hospital, Allahabad near Teliyarganj from Kaurihar PHC. The matter was investigated by P.W.-5 Ram Narain Singh the then Station House Officer (I.O.), P.S. Nawabganj, District Allahabad. He prepared the site plan (Ex-Ka-6), obtained samples of simple earth and blood soaked earth, prepared memorandum of recovery (Ex-Ka-7), recorded the statements of witnesses and thereafter filed charge-sheet against four persons namely Late Mishri Lal, Bare Lal and surviving appellants namely Indra Gopal @ Nankau and Umesh Chandra under Section 307, 302 IPC read with Section 34 IPC. 5. It is pertinent to point out that initially both the injureds were taken to Kaurihar PHC where initially medical examination was done and medical reports of both the injureds were prepared by Dr. K.N. Singh, (P.W.-6), Medical Officer, PHC Kaurihar. The medical report of deceased Brahma Nand is reproduced as under : (i) Lacerated wound 6 cm X 0.3 cm X bone deep over left parietal region 10 cm above the left ear. (ii) Lacerated wound 4 cm X 0.3 cm X bone deep over occipital region. (iii) Lacerated wound 4 cm X 0.2 cm X bone deep over the lateral aspect of the mid of the left upper arm (iv) Multiple contusions linear in shape over whole of the left arm, right arm and right leg on the anterior, posterior and lateral aspects (v) Punctured wound 3 cm X 0.2 cm over anterior aspect of the right leg 8 cm below the knee joint. (vi) Two punctured wounds of 3 cm X 0.2 cm X bone deep and two other punctured wounds of 2 cm X 0.2 cm X bone deep over lateral aspect of the right upper arms, vertically situated one after the other. (vi) Two punctured wounds of 3 cm X 0.2 cm X bone deep and two other punctured wounds of 2 cm X 0.2 cm X bone deep over lateral aspect of the right upper arms, vertically situated one after the other. (vii) Lacerated wound 2 cm X 0.2 cm over left side of forehead 2 cm above the left eye-brow (viii) Multiple contusions linear in shape over posterior aspect of chest. Opinion All the injuries were simple except injuries no 1 & 2 which were kept under observation. The patient was in shock and was referred to TB Sapru Hospital Allahabad. The injuries had been caused by blunt object except injuries No. 5 & 6 which had been caused by pointed weapon. The blunt object could be a lather and pointed object could be a barcha. The injuries were fresh. 6. On the same day, medical report of injured Jai Ram was also prepared. Relevant portion of this report is reproduced as under : (i) Lacerated wound 4 cm X 1 cm surrounded by multiple small punctured wounds over left half of the upper lip. (ii) Lacerated wound 0.5 cm X 0.2 cm over lateral border of left ear. (iii) Swelling in an area of 8 cm X 4 cm over left parietal region. Opinion Injuries No. 1 & 3 were kept under observation. X-ray was advised. Injury No. 2 was simple. Injuries were fresh in duration. 7. After the death, the cadaver of Brahma Nand was subjected to autopsy by Dr A.B. Dass Gupta (P.W.-3). Sri Gupta found as many as 17 injuries on the person of deceased Brahma Nand. Relevant portion of medical report prepared by Dr. A.B. Dass Gupta is reproduced as under : (i) Abraded contusion 5 cm X 3 cm on left half of forehead outer side. (ii) Contused wound 4 cm X 1 cm X scalp deep on the head 12 cm above the left ear. (iii) Abraded contusion 3 cm X 2 cm on the top of head 4 cm behind injury No. 2. (iv) Contusions (3 countable) in an area of 12 cm X 10 cm on the left scapular region. (v) Contusions (4 countable) in an area of 15 cm X 17 cm on the left half of the back on the middle of lower third. (iv) Contusions (3 countable) in an area of 12 cm X 10 cm on the left scapular region. (v) Contusions (4 countable) in an area of 15 cm X 17 cm on the left half of the back on the middle of lower third. (vi) Stitched wound 7 cm long on the back and outer side of right arm lower third with swelling 12 cm X 8 cm in and around it with fracture of the bone (humerus), underneath. (vii) Stitched wound 2-1/2 cm long on the back of the right elbow joint. (viii) Abraded contusions with swelling in an area on 20 cm X 12 cm on the back and sides of the right forearm. (ix) Abrasion 1-1/2 X 1 cm long on the back of the right index finger. (x) Contused wound 2 cm X 1 cm X muscle deep on the left arm lower third. (xi) Abraded contusions with swelling in an area of 16 cm X 12 cm on the back end side of the left arm lower third and upper half of the left forearm. (xii) Contusion with swelling 8 cm X 6 cm on the back of the left hand (palm) and wrist joint. (xiii) Abraded contusions (3 countable) on the outer side of the left thigh in an area of 7 cm X 5 cm (xiv) Abrasion 1 cm X 1 cm on the front side of the left knee joint (xv) 3 abrasions in an area of 5 cm X 6 cm on the front side of right knee joint (xvi) Contused wound 10 cm X 1-1/2 cm into muscle deep longitudinally on the front side of right leg middle third. (xvii) Abraded contusion in an area of 6 cm X 4 cm on the outer side of the right upper thigh upper part. Some of the above injuries were found painted with some medicine. In my opinion the death of Brahma Nand was due to syncope owing to shock and haemorrhage as a result of multiple injuries noted above. The injuries were sufficient in ordinary course to cause death. All injuries excepting injuries No. 6 & 7 could be caused by a blunt weapon such as Lathi. Death of Brahma Nand may have taken place on 16.1.1978 at 6 p.m.. Injuries No. 6 & 7 were stitched and as such it cannot be said whether they had been caused by Barcha. All injuries excepting injuries No. 6 & 7 could be caused by a blunt weapon such as Lathi. Death of Brahma Nand may have taken place on 16.1.1978 at 6 p.m.. Injuries No. 6 & 7 were stitched and as such it cannot be said whether they had been caused by Barcha. 8. Trial judge, after commitment of the case, framed charges against the appellant Mishri Lal and three other accused persons separately. Mishri Lal was charged under Section 302 read with Section 34 IPC and Section 307 IPC on 2.8.1980. Similarly, other accused persons namely Indra Gopal, Bare Lal and Umesh Chandra were charged under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC on the same day. All the four accused persons denied the charge and claimed to be tried. 9. During the course of trial, prosecution adduced the evidence of P.W.-1 Ram Murat (complainant and eye-witness), P.W.-2 Jai Ram (injured eye-witness), P.W.-3 Dr A.B. Dass Gupta (conducted autopsy), P.W.-4 Head Constable Keshav Prasad (recorded the FIR), P.W-5 Inspector Ram Narain Singh (Investigating Officer), P.W-6 Dr. K.N. Singh (conducted initial medical examination). Statements of accused persons were recorded under Section 313 Cr.P.C., wherein all the accused persons denied the allegations. However, all the appellants admitted the existence of enmity between the rival parties. A different case was also set up by surviving appellants Umesh Chandra by saying that the deceased Brahma Nand was carrying cattle of one Salig Ram to the cattle pound and Salig Ram infact had altercation with deceased Brahma Nand. It is suggested that some injuries were sustained by Brahma Nand in this scuffle with Salig Ram. Incidentally, evidence has disclosed that Salig Ram is elder brother of Late appellant Bare Lal and they were jointly conducting their agriculture and other occupations. It is pertinent to point out that Salig Ram has neither been prosecuted nor produced as witness in this case. As far as this case is concerned, Salig Ram is virtually a stranger. 10. After the statements of accused under Section 313 Cr.P.C., defence adduced evidence of one Jamaluddin (D.W-1) who was keeper of cattle pound. He has merely testified that on 16.1.1978 at about 6 p.m. 19 animals were admitted into the cattle pound by one Ram Adhar son of Bindeshwari Yadav and the animals were released on 21.1.1978 at the instance of one Salig Ram. He has merely testified that on 16.1.1978 at about 6 p.m. 19 animals were admitted into the cattle pound by one Ram Adhar son of Bindeshwari Yadav and the animals were released on 21.1.1978 at the instance of one Salig Ram. Ram Aadhar also resident of Village Lakhariya is real brother of P.W.-1 Ram Murat, the informant. 11. On conclusion of the trial, the then Vth Additional Sessions Judge, was convinced of the prosecution evidence and held the appellants guilty of offence under Section 302/34 IPC and Section 307/34 IPC and therefore all the appellants including late appellant Mishri Lal, Bare Lal were convicted and sentenced as aforesaid vide judgment and order dated 12.5.1983. This judgment is under challenge before this Court. 12. We have heard Sri Gopal Swaroop Chaturvedi, learned Senior counsel assisted by Sri Alok Ranjan Mishra, for the appellant No. 4 Umesh Chandra, Sri Apul Mishra, learned Advocates for appellant No. 2 Indra Gopal @ Nankau and Sri Ajeet Kumar Singh, learned AGA for the State. 13. As stated earlier this Court is now only concerned with the appeals of surviving appellants Indra Gopal @ Nankau and Umesh Chandra. 14. Learned counsel for the appellants have submitted despite the presence of several witnesses in Kaurihar Market not a single witness of the vicinity has been produced by the prosecution. Both the prosecution witnesses are partisan witness. Admittedly, both the parties were on antagonistic terms. Despite this fact and inspite of the availability of independent witnesses none has been produced by the prosecution without any reasonable explanation. 15. Learned counsel for the appellants have also argued that the medical report prepared by Dr. K.N. Singh of PHC, Kaurihar Market is significantly different from the autopsy report prepared by Dr. A.B. Dass Gupta. Submission was also made that the FIR was ante-timed and that it was not in existence till arrival of police on the place of occurrence. 16. To the contrary, learned AGA has submitted that the testimony of Jai Ram, the injured witness has established the prosecution case sufficiently which has been corroborated not only by the testimony of complainant Ram Murat but also by medical evidence. 17. Learned AGA has drawn the attention towards inquest report which was prepared immediately in the aftermath of the incident on 17.1.1978. 17. Learned AGA has drawn the attention towards inquest report which was prepared immediately in the aftermath of the incident on 17.1.1978. He has also drawn the attention of the Court towards several documents prepared first at Kaurihar Hospital (PHC) and later on at T. B. Sapru Hospital, Allahabad, which belies the claim of ante-timing of the FIR. 18. Bare perusal of the testimonies of P.W.-1 Ram Murat Singh, the complainant, injured witness P.W.-2 Jai Ram and the statements of accused persons under Section 313 Cr.P.C. would reveal that both the parties had inimical relationship. This fact has been mentioned right in the first document prepared after the incident i.e. the FIR (Ex-Ka-1). FIR itself says that the rival parties had hostile relationship. Few months prior to the incident, election for assembly took place in which the complainant party was supporting an independent candidate while Late Mishri Lal and his family were supporting candidate of political party. Some altercation took place between deceased Brahma Nand and Jai Ram on one hand and appellant Umesh on other hand on Kakra Polling booth. Umesh was slapped by deceased Brahma Nand in this incident. This created tension between the rival families. It is suggested that accused persons and other cohorts were infact searching for right moment to attack the deceased. This incident occurred almost 4-6 months prior to the main episode. Though, no formal report was lodged. 19. Complainant (P.W.-1) has stated that he managed to subside the anger of rival parties at that time but apparently accused persons did not forget the incident. It is also stated that prior to the present incident accused persons also tried to corner Brahma Nand and Jai Ram when they were coming back from city to village. However, deceased Brahma Nand and injured Jai Ram managed to escape. It is also alleged that appellant Umes Chandra and Late Bare Lal had extended threats to late Brahma Nand on that date. It is true that the incident appears to be trivial, however, question of animosity is one of perception. Some times, it is very difficult to establish and prove the source of animosity for the simple reason because source lie-locked in the heart of assailants. Other party could only perceive or guess the reason for the same. It is not necessary in each case to establish the motive as well as sufficiency of reasons for the enmity. Some times, it is very difficult to establish and prove the source of animosity for the simple reason because source lie-locked in the heart of assailants. Other party could only perceive or guess the reason for the same. It is not necessary in each case to establish the motive as well as sufficiency of reasons for the enmity. Sufficiency of reasons, depends on mental make up of assailants. Some people can get provoked quite easily even on minor things and other persons may ignore such incidents completely. Therefore, as far as question of motive is concerned, it can only be established up to a certain point. The complainant and his party can only disclose the reasons for animosity as they perceive them. In the instant case even the accused persons have conceded the existence of bad blood between the rival parties during their statements under Section 313 Cr.P.C. To that extent, existence of bad relations can easily be accepted by Courts. 20. Testimonies of P.W.-1 Ram Murat and P.W.-2 Jai Ram are of high quality. Both have narrated the entire episode in great detail. They have been subjected to searching cross-examination and yet they reiterated the prosecution story with trust worthy depiction. In our opinion, their testimonies are natural, convincing and in accordance with the normal human conduct. 21. It is pertinent to point out that the presence of P. W.-1 Ram Murat and P.W.-2 Jai Ram cannot be doubted. Jai Ram infact sustained serious injuries on his person in the same incident, though initially he was not target of the attack. The story as unfolded in the FIR and testimonies of eye-witnesses, would reveal that late Brahma Nand, injured Jai Ram (P.W.-2) and complainant Ram Murat (P.W-1) had gone to make purchases from Kaurihar Market. During this, Late Brahma Nand had drifted towards block road where he was surrounded by appellants and their companions with aggressive intent resulting in wild uproar. Both witnesses rushed towards Brahma Nand alongwith several other persons. They have stated that incident was witnessed by them. P.W-1 Ram Murat Singh had testified that Late Mishri Lal was aiming the gun at Brahma Nand and nearby crowd keeping everyone else under control and at bay. Other attackers namely Late Bare Lal, appellants Umesh Chandra and Indra Gopal were beating and inflicting injuries on deceased Brahma Nand. They have stated that incident was witnessed by them. P.W-1 Ram Murat Singh had testified that Late Mishri Lal was aiming the gun at Brahma Nand and nearby crowd keeping everyone else under control and at bay. Other attackers namely Late Bare Lal, appellants Umesh Chandra and Indra Gopal were beating and inflicting injuries on deceased Brahma Nand. Trustworthy description of events by P. W.-1 Ram Murat has fortified the prosecution story. This Ram Murat had also lodged the FIR at 4.55 p.m. at P.S. Nawabganj, District Allahabad, i.e. in less then 90 minutes of the incident. Meanwhile, two injured persons were taken to Kaurihar Hospital (PHC) and thereafter shifted to T. B. Sapru Hospital, Allahabad. Considering the sequence of events, the FIR (Ex-Ka-1) was lodged with considerable promptness. 22. Similarly, P.W.-2 Jai Ram has given contours of the incident in a very trustworthy manner. This injured witness also ran towards deceased Brahma Nand alongwith complainant P.W.-1 Ram Murat. Presence of P.W.-2 Jai Ram has been established by the injuries sustained by him in the same event. After beating deceased Brahma Nand, accused persons started fleeing from the spot. P.W.-2 Jai Ram claims to have chased them. Late Mishri Lal wanted Jai Ram and others to stop chasing the assailants to deter him at his face. Mishri Lal opened fire upon Jai Ram. This fact has been mentioned in the FIR itself, which says that Jai Ram was shot in the same incident. This has been returned by P.W.-1 Ram Murat by saying that Late appellant Mishri Lal opened fire upon P.W.-2 Jai Ram which hit Jai Ram at his face. This statement is consistent with the medical report prepared by P.W.-6 Dr K.N. Singh. It is pertinent to point out that the incident occurred at 3 p.m. and P.W.-2 Jai Ram was medically examined at Kaurihar Hospital (PHC) at 4.30 p.m. disclosing wound of 4 cm X 1 cm surrounded by multiple small punctured wounds over left half of upper lip, which is consistent with the prosecution allegations. Injury report of Jai Ram has established the presence of Jai Ram on the spot at the time of incident. 23. We have carefully examined the factual evidence of P.W.-1 Ram Murat and P.W-2 Jai Ram and we believe that there is absolutely no reason to disbelieve or to discard their testimony. Injury report of Jai Ram has established the presence of Jai Ram on the spot at the time of incident. 23. We have carefully examined the factual evidence of P.W.-1 Ram Murat and P.W-2 Jai Ram and we believe that there is absolutely no reason to disbelieve or to discard their testimony. As far as question of lack independent witness is concerned, it is evident that in every case the independent witnesses are not available. It is also not necessary to produce them in every eventuality. When the witnesses of fact are not fully trustworthy then alone Courts can seek some corroboration. In the present case, evidence given by both P.W.-1 and P.W-2 is highly natural and consistent with the normal human conduct. If the evidence, produced by the prosecution is trustworthy and reliable then this evidence cannot be rejected merely on the ground that independent witnesses, though available, were not produced. Criminal cases are decided on the basis of available evidence. If available evidence is trustworthy then even the testimony of sole witness can be relied to convict the perpetrator of the crime. 24. Argument of appellants that both the witnesses of facts are not reliable as both are partisan, is not acceptable. Of course, both witnesses are partisan but there is nothing on record to demonstrate that witnesses of facts are either lying or economical with truth. Fact of the matter is that it is much more difficult for partisan witnesses to spare real culprits of commission of grave crime like murder and to implicate falsely someone with whom they merely had some minor altercation 5-6 months prior to the incident on a very trivial matter during surcharged atmosphere of election. Ordinarily, people do take such things in their stride and this observations finds support from a fact that neither party went to the police after this incident. 25. In the instant case, FIR was lodged promptly. Initial medical examination was done at PHC Kaurihar at 3.30 p.m. meaning thereby that within 30 minutes of the said incident, both injured persons were present at P.H.C. Kaurihar, Allahabad. Incident occurred at 3 p.m. Medical examination started at 3.30 p.m. It can safely be presumed that injured persons and their supporters went to the Kaurihar PHC after spending some time at the place of occurrence and arranging a transport for the hospital. Incident occurred at 3 p.m. Medical examination started at 3.30 p.m. It can safely be presumed that injured persons and their supporters went to the Kaurihar PHC after spending some time at the place of occurrence and arranging a transport for the hospital. This indicates that prosecution witnesses did not get any time for fabrication, concoction or false implication. 26. It is important to point out that the date, time and place of occurrence has not been disputed. It is also story of defence that on 16.1.1978 Brahma Nand and his companions were taking cattle of one Salig Ram towards cattle pound which resulted in some altercation between Salig Ram and deceased Brahma Nand. It is said that Brahma Nand sustained injuries in that alleged scuffle, meaning thereby that it is admitted to rival parties that some incident took place in the evening of 16.1.1978 wherein deceased Brahma Nand sustained injuries. Story of defence reinforces the prosecution story and there is reason for that. If some altercation, scuffle or fight took place between Salig Ram and Brahma Nand there was no reason for supporters of Brahma Nand to spare Salig Ram. Salig Ram infact is elder brother of accused late Bare Lal. It would have been much easier for complainant to implicate Salig Ram as well. In the present case Salig Ram has not been mentioned by the complainant. It is inconceivable that complainant party would falsely implicated Bare Lal, younger brother of Salig Ram and spare Salig Ram despite the claim that Salig Ram had caused injuries to Brahma Nand. This story is unbelievable. We believe that participation of surviving appellants in the crime has been established by trustworthy and independent evidence. There is no evidence on record to suggest that the FIR was ante timed because medical report prepared by P.W.-6 Dr. K.N. Singh, itself was prepared at 3.30 p.m. P.W.-6 Dr. K.N. Singh has admitted that he referred the injured persons to T. B. Sapru Hospital, Allahabad after initial treatment. Doctor has also stated that he took only 15 minutes to examine Jai Ram and some more time for examination of deceased Brahma Nand. P.W.-1 Ram Murat and extract of relevant General Diary demonstrate that written report (Ex-Ka-1) was indeed lodged at 4.55 p.m. at P. S. Nawabganj. This finds support from the testimony of P.W.-5 Ram Narain Singh, Station House Officer, Nawabganj. P.W.-1 Ram Murat and extract of relevant General Diary demonstrate that written report (Ex-Ka-1) was indeed lodged at 4.55 p.m. at P. S. Nawabganj. This finds support from the testimony of P.W.-5 Ram Narain Singh, Station House Officer, Nawabganj. He visited Kaurihar PHC some where around 6.20 p.m. in the same evening and by that time injured persons had already left for T.B. Sapru Hospital, Allahabad. Therefore, he could not record the statements of injured person. All these depositions and documentation done subsequent to the incident belies the argument of ante timing of the FIR. 27. Learned counsel for the appellant has stated that two medical reports of Brahma Nand, disclose different kind of injuries. P.W.-5 Dr. K.N. Singh, found eight injuries while postmortem report prepared next day by P.W.-3 Dr. A.B. Dass Gupta indicates 17 injuries and both reports are slightly different. 28. Careful examination of testimony of P.W.-6 Dr. K.N. Singh would reveal that he immediately referred injured Brahma Nand to T. B. Sapru Hospital, Allahabad. He merely provided the first aid and bare minimum treatment to deceased Brahma Nand. His medical examination was certainly not comprehensive. Injury No. 8 or 4 talks of multiple contusions while injury No. 6 indicates two wounds. Postmortem report has delineated each injuries separately, therefore, number of injuries have increased as far as postmortem report is concerned. In any case medical report should not be compared with ocular evidence or with other medical evidence in a mechanical manner. The fact that Dr. K.N. Singh provided minimum treatment and referred injured immediately to T.B. Sapru hospital, Allahabad for major treatment indicates haste and desire to get rid of patient instantly perhaps because of his serious condition. Limitations of primary health centres even today are known to everybody. There were bare minimum facilities at PHC in 1978. Therefore, one can very well understand the desire of Dr. K.N. Singh to send injured Brahma Nand to main Hospital at Allahabad. It appears that in his haste either he could not note every injury. We have no reason to doubt the prosecution story in this regard despite the existence of some minor discrepancies in both medical reports. Report of serologist is present. Sample of blood soaked earth was found to have been contaminated with human blood. Testimony of injured witness PW-2 Jai Ram has completely established the prosecution case. 29. We have no reason to doubt the prosecution story in this regard despite the existence of some minor discrepancies in both medical reports. Report of serologist is present. Sample of blood soaked earth was found to have been contaminated with human blood. Testimony of injured witness PW-2 Jai Ram has completely established the prosecution case. 29. Learned Counsel for the appellant has also raised legal question. They have stated that no offence under Section 302 IPC is made out. In this connection they have drawn the attention of the Court towards the prosecution story enshrined in the FIR (Ex. Ka-1) as well as contradictions in the testimony of both eye-witnesses. The story says that when witnesses reached the place of occurrence after hearing the commotion, they found that Mishri Lal was standing with a gun yet this gun was not used for killing Brahma Nand. When witnesses tried to save Brahma Nand, Mishri LaL merely threatened them with death but he did not use his gun initially. 30. Brahma Nand was repeatedly beaten by three persons namely late Bare Lal and surviving appellants with Lathies and spare (cjNk) respectively. Postmortem report has indicated 17 injuries, out of which 12 injuries are merely contusions. Few abrasions were also found which have been described at three places namely Injury No. 9, injury No. 14 and injury No. 15. One stitch wound of 7 cm long on the back and outer side of the right arm lower third with swelling was found. Another stitched wound 2.5 cm long on the back of the right elbow joint was also found. Dr A.B. Dass Gupta has stated that all injuries except injury Nos. 6 & 7 were caused by blunt weapon. Doctor could not give any opinion about the injury Nos. 6 & 7 as they were stitched but even if we assume that the injury Nos. 6 & 7 were caused by spare (cjNk). It would mean that these injuries were caused at right joint elbow and right arm. Ordinarily injuries on such places would not cause death. 31. Dr. A.B. Dass Gupta, P.W-3 has opined that Brahma Nand had died due to syncope owing to shock and hemorrhage as a result of multiple injuries. It appears that attack resulted in several injuries which created shock and hemorrhage and this caused syncope which resulted in death of Brahma Nand. Ordinarily injuries on such places would not cause death. 31. Dr. A.B. Dass Gupta, P.W-3 has opined that Brahma Nand had died due to syncope owing to shock and hemorrhage as a result of multiple injuries. It appears that attack resulted in several injuries which created shock and hemorrhage and this caused syncope which resulted in death of Brahma Nand. Now can it be said all those injuries described in postmortem report were caused by the person intending to kill Brahma Nand ? We are afraid that our conclusions are different. We believe that non use of gun upon Brahma Nand despite its availability and presence indicates that appellants were interested in beating Brahma Nand and perhaps not in actually killing him because prosecution story itself says that Mishri Lal used the gun for keeping other persons at bay. He did not use it in actual assault at Brahma Nand. Infact when large numbers of people gathered on the place of occurrence, all accused persons started fleeing from the spot. Even at that point of time, Mishri Lal did not use gun nor any other accused persons instigated him to use it. There was no need of striking Brahma Nand repeatedly. Had the accused persons been interested in actually killing deceased Brahma Nand, they could have used the gun from very close range because evidence discloses that Brahma Nand had infact been dragged by accused persons on block road. There was no necessity of creating this messy scene on the place of occurrence. They could have simply used the gun and done away with it. The fact that repeated assaults merely created 12 contusions and few abrasions indicate their anger but not desire to physically eliminate late Brahma Nand 32. Even Jai Ram was hit with fire weapon only once when Jai Ram and others chased the assailants. Even then fire-arm shot did not kill Jai Ram. There is no evidence to demonstrate any indiscriminate use of gun. It appears that the death of Brahma Nand was caused by doing an act with knowledge that it was likely to cause death but there was no intention on the part of the accused either to cause death or to cause such bodily injury likely to cause death. We believe that act of accused persons would fall within Section 304 part II IPC. We believe that act of accused persons would fall within Section 304 part II IPC. In the facts and circumstances of the case, we are inclined to hold that appellants had no any intention of causing death of deceased. 33. In any case, story as unfolded by the prosecution evidence indicates use of gun by Late Mishri Lal only that too on Jai Ram who subsequently survived. Use of Lathies by surviving appellant Indra Gopal and late Bare Lal and spear (cjNk) by appellant Umesh Chandra does not necessarily indicate that all the accused shared common intention of murdering Brahma Nand. Mishri Lal had gun but did not use it. Umesh Chandra used spear (cjNk) which caused injuries on the right arm and right joint elbow. Other person used merely lathies. 34. We believe that Section 34 IPC incorporates principle of vicarious liability when an accused shares common intention with actual perpetrator of crime. Two essential requirement of the Section are (I) Common intention and (ii) participation of the accused in the commission of the offence. In Suresh and another v. State of U.P., (2001) 3 SCC 673 , the Apex Court elucidated the said provision in the following words: “48. In Ramaswami Ayyangar v. State of Tamil Nadu, (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 , this Court declared that Section 34 is to be read alongwith preceding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. In Ramaswami case [ (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 ] it was contended that A-2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly, he did not physically participate in the fatal beating administered by the co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplation of Section 34; and secondly, the prosecution had not shown that the act of A-2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a prearranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A-2 under Section 302/34 of the Code in that case was upheld.” xxxxxxxxx “52. In Surendra Chauhan v. State of M.P., (2000) 4 SCC 110 : 2000 SCC (Cri) 772, this Court held that apart from the fact that there should be two or more accused, two factors must be established — (i) common intention, and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)” “11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Referring to its earlier judgment this Court held: (SCC p. 117, para 11)” “11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. (Ramaswami Ayyangar v. State of T.N., (1976) 3 SCC 779 : 1976 SCC (Cri) 518 : AIR 1976 SC 2027 ) The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra, (1999) 8 SCC 428 : 1999 SCC (Cri) 1452] To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” 35. In Mithu Singh v. State of Punjab, (2001) 4 SCC 193 , the Supreme Court acquitted Mithu Singh under Section 302 read with Section 34 IPC, but upheld his conviction under Section 27 of the Arms Act, 1959 observing that inference as to common intention should not be readily drawn; culpable liability can arise only if such inference can be drawn with a degree of assurance. In the facts of the said case, it was observed that the required degree of assurance was missing. At the same time, the Supreme Court observed that while examining the question of common intention, the Court should be conscious and aware that it is difficult, if not impossible, to collect and produce direct evidence and in most cases inference as to the intention shall be drawn from the acts and conduct of the accused and other relevant circumstances as available. The entire observation or ratio of the Supreme Court has to be kept in mind. 36. In Rajesh Kumar v. State of H.P., (2008)15 SCC 705 , the Supreme Court elucidated and laid down the following principles as applicable to Section 34 IPC: “13. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. As observed in Ashok Kumar v. State of Punjab, AIR 1977 SC 109 , the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.” 37. Thus, there is no evidence on record to demonstrate that surviving appellants shared common intention of murdering Brahma Nand. No such evidence is available on record. We believe that surviving appellants can only be convicted for offence under Section 304 Part II IPC and Section 307 IPC read with Section 34 IPC. 38. In view of aforesaid discussion, this appeal is partly allowed. The sentence of appellants Indra Gopal and Umesh Chandra from Section 302 IPC read with Section 34 IPC is converted to one under Section 304 part II IPC read with Section 34 IPC and 307 IPC read with Section 34 IPC. The surviving appellants were convicted for life imprisonment under Section 302 read with Section 34 IPC which has now been converted under Section 304 Part II IPC. Both the surviving appellants are sentenced to eight years rigorous imprisonment under Section 304 Part II IPC and a fine of Rs. 2 Lacs is also imposed on each of them. In default of payment of fine, they shall have to further undergo additional imprisonment of two years each. Surviving appellants were sentenced to seven years rigorous imprisonment under Section 307 IPC read with Section 34 IPC. This conviction and sentence is maintained as it is and is not disturbed. Both sentences shall run concurrently. 39. Record further discloses that the appellants are on bail by this Court. Their bail bonds are cancelled and sureties discharged. They are directed to surrender within ten days to serve out the remaining sentences. 40. Let a copy of this judgment be sent to the concerned Trial Court within 15 days for information and compliance. The compliance report by the concerned Trial Court shall be submitted to this Court within a month from today.