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2020 DIGILAW 1050 (JHR)

Dara Bhuiyan v. State of Jharkhand

2020-11-05

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Dara Bhuiyan and Rajesh Lohar had acquaintances with Deepak Das who was a resident of a nearby Basti (village). On Ganesh Puja they were seen together in New Kapali Basti and in the evening they were found at a liquor shop enjoying drinks. Anil Singh and Vijay Singh @ Chattan Singh who have seen Dara Bhuiyan and Rajesh Lohar assaulting Deepak Das the same evening near a Ganesh Puja Pandal informed his family about the assault at about 08:00 PM. The fardbeyan of Ashok Das, the elder brother of Deepak Das, was recorded at 10:00 AM on 17.09.2007 near the post-mortem house at MGM Hospital. On the basis of his fardbeyan, Sonari P.S. Case No. 85 of 2007 was lodged against Dara Bhuiyan and Rajesh Lohar under Section 302/34 of the Indian Penal Code (in short IPC). In his fardbeyan Ashok Das has stated that at about 08:00 PM on 16.09.2007 Vijay Singh @ Chattan Singh informed him that near Ganesh Puja Pandal at New Kapali Basti his brother has been murdered. He has gone there with his family members and seen head injury on his brother. The other people present there also told him that Dara Bhuiyan and Rajesh Lohar have assaulted his brother with rod and stone. After the investigation a charge-sheet was laid against both of them and they have faced the trial on the charge under section 302/34 IPC for committing murder of Deepak Das in furtherance of the common intention. In the trial, three co-villagers of the informant, namely Anil Singh PW-2, Dilip Sahu PW-3 and Kalyan Singh Munda PW-4 were examined by the prosecution. PW-5, Mono Das is the father of Deepak Das and PW-8, Vijay Singh @ Chattan Singh is a friend of the family. PW-7, Dr. J. Sriniwas Rao who has conducted the post-mortem examination over the dead-body of Deepak Das has found five external injuries which were ante-mortem in nature, caused by hard and blunt substance. 2. PW-1, Vijay Verma is not an eye-witness and in the Court he has not stated any thing important in connection to the incident of 16.09.2007 near Ganesh Puja Pandal at New Kapali Basti. PW-2, Anil Singh is a co-villager and an eye-witness to the occurrence. 2. PW-1, Vijay Verma is not an eye-witness and in the Court he has not stated any thing important in connection to the incident of 16.09.2007 near Ganesh Puja Pandal at New Kapali Basti. PW-2, Anil Singh is a co-villager and an eye-witness to the occurrence. He has deposed in the Court that at about 07:45 PM on 16.09.2007 he was crossing through Ganesh Puja Pandal at New Kapali Basti. On seeing two boys running away he had gone near the Pandal and in the electric light he has seen a person lying on the ground and Dara Bhuiyan and Rajesh Lohar were assaulting him. In the mean-time, one person came there on a motorcycle and when they both moved towards the place of occurrence Dara Bhuiyan and Rajesh Lohar ran away towards Marine Drive. He has seen smashed head of Deepak Das and informed his family. PW-3, another co-villager, was going home in the evening from Marine Drive. He has seen Dara Bhuiyan and Rajesh Lohar fleeing towards Tilu Bhatta. At home he came to know that Deepak Das was murdered in New Kapali Basti. He has gone to the place of occurrence and there he was told that Dara Bhuiyan and Rajesh Lohar have killed Deepak Das. PW-4, Kalyan Singh Munda is a resident of Jangali Basti, Sonari. On 16.09.2007 after his duty was over he was returning home through Domuhani. He has stated that at about 05:00 PM he was crossing Marine Drive and at that time he has seen Rajesh Lohar, Dara Bhuiyan and Deepak Das enjoying drinks at a liquor shop. At about 08:00 PM when he reached home came to know that Dara Bhuiyan and Rajesh Lohar have killed Deepak Das. PW-5, the father of Deepak Das, has deposed in the Court that in the morning of 16th September (unable to recollect the year) he met his son the last time. On the river banks near New Kapali Basti his son handed over tiffin box to him. In the night at about 08:00 PM Anil Singh and Chattan Singh informed him that Dara Bhuiyan and Rajesh Lohar have killed his son. PW-6 is the elder brother of Deepak Das. He is not an eye-witness and the incident has been narrated by him in his fardbeyan on the basis of the information given by Vijay Singh @ Chattan Singh. PW-6 is the elder brother of Deepak Das. He is not an eye-witness and the incident has been narrated by him in his fardbeyan on the basis of the information given by Vijay Singh @ Chattan Singh. He has seen blood oozing from the head of his brother and his dead body was taken to the hospital by the police. He has further stated that the people around there had also informed him that Rajesh Lohar and Dara Bhuiyan have killed his brother. At the hospital his statement was recorded by the police in presence of Vijay Singh @ Chattan Singh and Anil Singh. He is a witness to the inquest report. PW-8 was going to Ashiyana Garden from Mararpara in the evening at about 07:00 PM on 16.09.2007. When he reached near Ganesh Puja Pandal at New Kapali Basti he found that boys were running away from the Pandal. He stopped near the Pandal and saw that Dara Bhuiyan and Rajesh Lohar were assaulting Deepak Das with stone. He has informed the police but by the time the police reached there Deepak Das had died. 3. The learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur has held that the delay in registration of the First Information Report has been explained by the investigating officer, PW-2 and PW-8 are the eye-witnesses and the defence evidence led through three witnesses does not create any doubt on the prosecution story that Dara Bhuiyan and Rajesh Lohar have assaulted Deepak Das to death. In Sessions Trial Case No. 01 of 2008 the appellants have been convicted and sentenced to R.I. for life and a fine of Rs. 10,000/- each under section 302/34 IPC with a default stipulation that they shall undergo further imprisonment of R.I. for one month. 4. The judgment of conviction of the appellants in Sessions Trial Case No. 01 of 2008 has been challenged before us on the following grounds: (i) the First Information Report was lodged in contravention to the dictum in Lalita Kumari vs. Govt. 4. The judgment of conviction of the appellants in Sessions Trial Case No. 01 of 2008 has been challenged before us on the following grounds: (i) the First Information Report was lodged in contravention to the dictum in Lalita Kumari vs. Govt. of U.P. (2014) 2 SCC 1 and (ii) the delay in preparation of the inquest and the post-mortem and that too, before registration of the First Information Report would establish that the appellants were implicated in this case at the instance of the so-called eye-witnesses the prosecution witnesses, particularly, PW-2 and PW-8 are chance witnesses who have failed to explain satisfactorily their presence at the relevant time at the place of occurrence the prosecution has failed to prove motive for murder of Deepak Das and there are serious inconsistencies in the evidence of PW-2 and PW-8 which render them unreliable witnesses. 5. Mr. Sahil, the learned counsel for the appellants has submitted with reference to the observations in paragraph no.119 of the judgment in Lalita Kumari that no enquiry is contemplated under section 154 Cr.P.C. but in this case for more than eighteen hours the police remained busy in conducting the inquest and sending the dead-body for post-mortem examination before the First Information Report was lodged. The learned counsel for the appellants would submit that Deepak Das was assaulted on 16.09.2007 around 07:30 PM and an information to the police was sent at 08:30 PM, but before a First Information Report was lodged at 12:30 PM on 17.09.2007 the inquest over the dead-body was conducted at 10:10 AM and the dead-body was received in the hospital for post-mortem examination at 11:30 AM. The argument is that delay in registration of the First Information Report has provided sufficient time for fabricating a false story. 6. In the first place, Lalita Kumari is not an authority for the proposition that wherever there is delay in registration of a First Information Report the trial shall ipso facto vitiate. The judgment in Lalita Kumari deals with the mandatory character of section 154 Cr.P.C. The Hon'ble Supreme Court has held that wherever a complaint disclosing commission of any cognizable offence is received by the officer-in-charge of a police station without any further enquiry the First Information Report must be lodged. The legal position as to the object value and use of the First Information Report is well-settled. The legal position as to the object value and use of the First Information Report is well-settled. It is well-settled a proposition that the main object of the First Information Report is to set the criminal law in motion and to incorporate the basic facts about the crime in the Report. It is true that in a criminal trial the First Information Report is of a vital importance for the purpose of corroborating or contradicting a witness, but at the same time as held in Ram Jag and Others vs. State of U.P. (1974) 4 SCC 201 the witnesses cannot be called upon to explain every hour of delay and a common sense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating the evidence. In Lalita Kumari the Hon'ble Supreme Court has held as under: “93. The object sought to be achieved by registering the earliest information as FIR is inter-alia twofold one, that the criminal process is set into motion and is well documented from the very start and second that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc. later.” 7. In his cross-examination the investigating officer has explained the reason for delay in registration of the First Information Report. He has stated that an information was received in the police station which was entered in the station-diary and on that basis he had proceeded to MGM Hospital where Deepak Das was brought for treatment. He has further stated that on 16.09.2007 there was law and order situation in the town and that was the reason he could not proceed to the place of occurrence even though an information was received in the police station. He has stated that at about 09:40 AM the next day he proceeded from the police station and recorded the fardbeyan of Ashok Das at MGM Hospital. There is no dispute that an information was given to the police, a Sanha entry was made in the police station and Deepak Das was taken to the hospital. PW-6 has stated that he had gone to the hospital and remained there till the investigating officer arrived there the next day and recorded his fardbeyan. There is no dispute that an information was given to the police, a Sanha entry was made in the police station and Deepak Das was taken to the hospital. PW-6 has stated that he had gone to the hospital and remained there till the investigating officer arrived there the next day and recorded his fardbeyan. In the background of Ganesh Puja due to which the police force was engaged in maintaining law and order in the town if Deepak Das was immediately taken to the hospital there is nothing unusual about it. No one can say that the police should have first recorded the statement of the informant and other persons present there before taking Deepak Das to the hospital, saving a life is definitely more important than completing the paper formalities. At the very first instance when he met Ashok Das the investigating officer has recorded his fardbeyan. By the time the inquest was prepared at 10:10 AM and the dead-body was received in the morgue at 11:30 AM the fardbeyan of Ashok Das was already recorded. The investigating officer was in the hospital and the dead-body was there. He had rightly started the statutory proceedings for conducting the inquest etc. It would be an unreasonable approach to expect that the investigating officer would first go to the police station, lodge the First Information Report and then come back to the hospital to conduct the inquest and sent the dead-body for post-mortem examination. In Pedda Narayana and Others vs. State of Andhra Pradesh, (1975) 4 SCC 153 the Hon'ble Supreme Court has held that the main object of the inquest proceedings under section 174 Cr.P.C. is merely to ascertain whether a person has died under suspicious circumstance or an unnatural death and, if so, what is the apparent cause of the death. It may be a mistake on the part of the police to carry the dead-body to the hospital without recording the fardbeyan, but for that reason it is not possible to hold that the appellants have been falsely implicated in this case after due deliberations. The learned Sessions Judge has rightly held that no suggestion was given to the prosecution witnesses suggesting that they have animosity or a reason to falsely implicate the appellants in the case. 8. PW-2 and PW-8 are star witnesses for the prosecution. The learned Sessions Judge has rightly held that no suggestion was given to the prosecution witnesses suggesting that they have animosity or a reason to falsely implicate the appellants in the case. 8. PW-2 and PW-8 are star witnesses for the prosecution. In the Court they have stated that they have seen the appellants assaulting Deepak Das with stone. PW-2 is a resident of Jangali Basti which comprises of about 50-60 houses and he knows almost all the inhabitants of the village. PW-8 has narrated the incident in almost similar manner as portrayed by PW-2 in the Court. Both these witnesses have remained firm to their grounds during the cross-examination and nothing material could be elicited by the defence which would create a doubt on complicity of the appellants in the crime. Their statements were recorded by the police during the investigation and from their testimony in the Court it appears that they have given similar statements before the police. They were not confronted with their statements under section 161 Cr.P.C. to suggest that there were inconsistencies or exaggerations in their statements in the Court. 9. The conduct of PW-2 and PW-8 in not raising hullah and intervening to save Deepak Das from assault by the appellants has come in for criticism by the defence. It is almost impossible and even unrealistic to predict behaviour of a person and therefore the conduct of a witness is examined in the facts and circumstances of the case. In Rana Pratap vs. State of Haryana, (1983) 3 SCC 322 the Hon'ble Supreme Court has observed that there is no set rule of natural reaction and therefore to discard the evidence of a witness on the ground that he did not react in a particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. The response of PW-2 and PW-8 was not altogether unexpected. They have seen the persons with criminal antecedent assaulting Deepak Das. They have informed the family of Deepak Das and several persons had gathered there. PW-2 has stated in his cross-examination that he was frightened and therefore did not try to intervene and save Deepak Das. 10. PW-2 and PW-8 have been criticised as chance witnesses. They have seen the persons with criminal antecedent assaulting Deepak Das. They have informed the family of Deepak Das and several persons had gathered there. PW-2 has stated in his cross-examination that he was frightened and therefore did not try to intervene and save Deepak Das. 10. PW-2 and PW-8 have been criticised as chance witnesses. PW-2, who has stated in his cross-examination that the shop in which he was working would be closed by 10:00 PM in the night, has denied a suggestion that at the time of the incident he was at the shop. PW-8 was also cross-examined with regard to his profession and we find that there is nothing in his testimony which may create a doubt on his presence near the Pandal at the time of occurrence. The informant has stated in the fardbeyan that PW-8 had informed him about the appellants assaulting his brother. PW-2 and PW-8 both are named in the First Information Report as eye-witnesses and when the informant had gone to the place of occurrence they were present there. Anyone going by the road near the place of occurrence can be said to be a chance witness but this fact by itself would not be enough to discredit his testimony. In the cross-examination of PW-5 the defence has elicited that PW-8 was implicated in a criminal case. In view of section 8 read with section 155 of the Indian Evidence Act to discredit PW-8 his past criminal history must first should have been brought to his notice, but that was not done in this case. Through these witnesses it has been brought out that both the appellants had criminal antecedent and Dara Bhuiyan was recently released from custody. It has also come on record that Rajesh Lohar had also gone to jail in connection to a theft case. He was working as associate of Dara Bhuiyan who was a muscle man of the area. After an assessment of these facts, we conclude that the evidence of PW-2 and PW-8 does not suffer from any inherent weakness and they are reliable witnesses. 11. There were several persons gathered at the place of occurrence as would appear from the testimony of PW-5 and PW-6. After an assessment of these facts, we conclude that the evidence of PW-2 and PW-8 does not suffer from any inherent weakness and they are reliable witnesses. 11. There were several persons gathered at the place of occurrence as would appear from the testimony of PW-5 and PW-6. They have deposed in the Court that on receiving the information about assault on Deepak Das when they reached Ganesh Puja Pandal the people present there had informed them that Dara Bhuiyan and Rajesh Lohar have killed Deepak Das with stone. PW-5 and PW-6 are intimately related to Deepak Das and their evidence has been challenged on the ground that they are interested witnesses and not truthful. PW-5 and PW-6 are not eye-witnesses and their statements recorded during the investigation under section 161 Cr.P.C. have been proved by the investigating officer. Their evidence is relevant under section 157 of the Evidence Act which provides that to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, may be proved. They had arrived at Ganesh Puja Pandal immediately after the occurrence. PW-2 and PW-8 had informed them about the incident and the persons present at Ganesh Puja Pandal have again told them about complicity of the appellants in the occurrence. There is no bar in examining the family members, friends or any other person as a witness and the law on the point is by now well-settled that testimony of a related witness cannot be disbelieved on the ground of relationship. In Mano Dutt vs. State of U.P. (2012) 4 SCC 79 the Hon'ble Supreme Court has observed that: “Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party.” 12. The prosecution has laid evidence through PW-5 and PW-6 to establish that before the occurrence the appellants were found in the company of Deepak Das. The prosecution has laid evidence through PW-5 and PW-6 to establish that before the occurrence the appellants were found in the company of Deepak Das. At about the same time when PW-2 and PW-8 saw the appellants assaulting him, they were seen by PW-3 fleeing away towards Tilu Bhatta. This circumstance that they were found fleeing away, but not from the place of occurrence, looked at in isolation would not be a relevant circumstance but it assumes significance in proximity with the time of occurrence. PW-5 and PW-6 have seen Deepak Das in the company of the appellants on 16.09.2007. PW-5, the father of Deepak Das has stated that at about 10:00 AM on 16.09.2007 his son was with the appellants. PW-6, the elder brother of Deepak Das has stated that on 16.09.2007 his brother was roaming around New Kapali Basti in the company of the appellants. This piece of evidence has remained unchallenged. In the examination under section 313 Cr.P.C. the attention of the appellants was drawn to this evidence but they have not offered any explanation and simply denied the evidence. The evidence of last seen together is a highly incriminating circumstance if a person who was seen in the company of the accused is found dead soon thereafter. There would be strong suspicion against the accused that he is the person who has committed his murder. An accused has a right to silence and failure of the accused to offer an explanation to the incriminating circumstance of last seen together cannot be the sole ground to record his conviction, but that shall provide an independent additional incriminating material against the accused. In Navaneethakrishnan vs. State, (2018) 16 SCC 161 the Hon'ble Supreme Court has held as under: “22......It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration.” 13. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However this evidence alone cannot discharge the burden of establishing the guilt of the accused beyond reasonable doubt and requires corroboration.” 13. The appellants have taken a defence that Deepak Das was drunk and he died due to an accidental fall on a hard surface. PW-7 in his cross-examination was put to a suggestion by the defence whether the injuries found on Deepak Das are possible from a fall or due to collusion, however, he has denied that such injuries can be caused by fall. PW-4 has found him consuming liquor in the company of the appellants and PW-5 has found him drunk in the morning itself. The appellants have examined three witnesses to fortify their stand that Deepak Das was inebriated. However, PW-7 has not found any trace of alcohol in the stomach of Deepak Das. In Madan Gopal Kakkad vs. Naval Dubey, (1992) 3 SCC 204 the Hon'ble Supreme Court has observed that a medical witness is not a witness of fact and the evidence given by him is of an advisory character given on the basis of the symptoms found on examination. No trace of alcohol was found in the stomach of Deepak Das is a fact, which cannot be ignored merely because the witnesses have stated that they have found Deepak Das in drunken condition. Some exaggeration and embellishment in the testimony of a prosecution witness is a well-accepted fact. In Bihari Nath Gaswami vs. Shiv Kumar Singh and Others, (2004) 9 SCC 186 the Hon'ble Supreme Court has observed that the exaggerations per se do not render the evidence brittle. The injuries found on Deepak Das cannot be caused by a fall and the medical evidence would completely rule out any possibility of the defence set up by the appellants during the trial. The appellants have failed to offer any explanation to the incriminating circumstances proved by the prosecution that Deepak Das was lastly seen in their company at about 10:00 AM by PW-5 and at about 17:00 PM by PW-4. In such a situation the law enjoins upon the accused to tell the Court what has happened thereafter but in their examination under section 313 Cr.P.C. the appellants have remained completely silent. 14. Mr. In such a situation the law enjoins upon the accused to tell the Court what has happened thereafter but in their examination under section 313 Cr.P.C. the appellants have remained completely silent. 14. Mr. Sahil, the learned counsel for the appellants has contended that the prosecution has failed to prove motive for murder of Deepak Das and the indication on motive coming in the testimony of the father of Deepak Das is too fragile to carry the prosecution case. In Atley vs. State of U.P. AIR 1955 SC 807 the Hon'ble Supreme Court has held that where there is clear proof of motive for the crime that would lend additional support to the finding of the Court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. In Nathuni Yadav vs. State of Bihar, (1998) 9 SCC 238 the Hon'ble Supreme Court has observed that one cannot normally see into the mind of another. Deepak Das was roaming around in the company of the appellants and there is no clinching evidence to say that for money the appellants have killed Deepak Das. He was working as a painter with XLRI and on 16.09.2007 after getting wages had come back in the Basti (village). But except PW-5 no one has spoken about this fact. What was the amount received by Deepak Das has not been disclosed and there is no evidence on record to suggest that Deepak Das was murdered for money. Still, as observed by the Hon'ble Supreme Court the absence of clear proof of motive would not lead to a conclusion about innocence of the appellants. On identification of the appellants as the perpetrators of the crime, we would simply say that they were known to the prosecution witnesses for years and there was sufficient source of light at the place of occurrence. The persons who were present in the Ganesh Puja Pandal were not examined but the reason for that is on the record. The prosecution witnesses have stated that both Dara Bhuiyan and Rajesh Lohar were persons of criminal character. The persons who were present in the Ganesh Puja Pandal were not examined but the reason for that is on the record. The prosecution witnesses have stated that both Dara Bhuiyan and Rajesh Lohar were persons of criminal character. Therefore, it is not surprising that many of the witnesses would not gather courage to stand up against such accused persons and there is nothing unusual if the co-villagers or for that matter any independent witness has not come to the Court to give direct evidence against them. 15. The eye-witnesses have given cogent and reliable evidence against the appellants and the circumstance of last seen together enjoins upon the Court to draw a presumption on complicity of the appellants under section 106 of the Evidence Act. 16. Mr. Sahil, the learned counsel for the appellants has lastly submitted that the appellants who were seen taking liquor in the evening of 16.09.2007 possibly on account of an altercation with Deepak Das in the heat of moment have assaulted him. The learned counsel would submit that there was complete absence of intention to commit murder on the part of the appellants and at best the acts of the appellants would fall under Exception 4 to section 300 IPC. 17. Section 300 IPC provides four eventualities under which culpable homicide would amount to murder. It says that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death. Clause secondly which refers to intention of causing a bodily injury as the offender knows to be likely to cause the death and Clause thirdly states that if the bodily injury to a person is sufficient in the ordinary course of nature to cause death culpable homicide would amount to murder. The fourth Clause deals with knowledge of the accused that the act committed by him was so eminently dangerous that it must in all probability would cause death or such bodily injury as is likely to cause death. Section 300 IPC however provides five exceptions under which culpable homicide would not amount to murder and the act of a person would be punishable under section 304 IPC - Part-I or Part-II. Section 300 IPC however provides five exceptions under which culpable homicide would not amount to murder and the act of a person would be punishable under section 304 IPC - Part-I or Part-II. Exception 4 to section 300 IPC reads as under: “Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.” 18. Mr. Sahil, the learned counsel for the appellants has referred to a judgment in Surinder Kumar vs. Union Territory, Chandigarh, (1989) 2 SCC 217 , to contend that number of injuries would not take out a case from purview of Exception 4 to section 300 IPC. The facts in Surinder Kumar would indicate that it was a dispute in respect of tenancy, particularly handing over of the kitchen. The doctor had found two minor injuries besides the injury which proved fatal. It was in such facts that the Hon'ble Supreme Court has observed that the number of injuries on the victim would not exclude application of Exception 4 to the benefit of the accused. 19. PW-7, Dr. J. Sriniwas Rao, who has conducted the post-mortem examination has found the following injuries on Deepak Das: “External Injuries: (i) Abrasion 10 cm. x 6 cm. over right side of the forehead or head. (ii) Laceration 3 cm. x 2 cm. x bone deep: 2½” cm. x 1½” cm. x muscle deep: 2 cm. x 1½” cm. x bone surface deep, 3 cm. x 2 cm. x bone surface deep over the left back of the head. (iii) Abrasion 3 cm. x 2 cm. x 4 cm. x 2 cm. overt the left back chest. (iv) Laceration 3 cm. x 1 cm. x soft tissue deep over the back of left ear pinna. (v) Abrasion 4 cm. x 3 cm. left side of the face. Internal Injuries: (i) Contusion of the whole scalp. (ii) Fracture frontal left tempro parietal bone of skull. (ii) Contusion of both temporal muscles. (iv) Contusion of whole brain, subdural haemorrage and laceration of left parietal lobe of brain.” 20. The injury No. (ii) is infact a group of four lacerated injuries. x 3 cm. left side of the face. Internal Injuries: (i) Contusion of the whole scalp. (ii) Fracture frontal left tempro parietal bone of skull. (ii) Contusion of both temporal muscles. (iv) Contusion of whole brain, subdural haemorrage and laceration of left parietal lobe of brain.” 20. The injury No. (ii) is infact a group of four lacerated injuries. The injuries were ante-mortem in nature and caused by hard and blunt substance. In the opinion of PW-7 the death was caused due to head injuries and the internal injuries would give an idea about the force with which Deepak Das was struck on his head. The intention of an accused can be gathered from the manner of occurrence, the number of injuries, the weapon held by the accused and whether injury was caused on vital or non-vital part of the body. 21. A single blow may prove fatal while a victim can survive multiple assaults. Therefore the question with regard to the nature of offence has to be determined on the facts and in the circumstances of the case. Deepak Das has suffered several injuries on his head and other occipital region - his head was smashed with hard and blunt substance. Three lacerated injuries were bone deep and the nature of abrasion injuries found on him would indicate that he was brutally beaten. The fact that there were multiple assaults on the most vital pan of the body would establish clear intention of the appellants to commit murder of Deepak Das. It may be possible that there was an altercation between Deepak Das and the appellants whereafter the appellants have assaulted him, but the brutal beating of Deepak Das at the hands of the appellants would establish that the appellants have acted in concert and cruel manner. The benefit under Exception 4 to section 300 IPC comes with certain conditions. One of the necessary conditions to apply Exception 4 is that the offender has not taken undue advantage or acted in a cruel or unusual manner. The case of the appellants clearly does not fall under Exception 4 to section 300 IPC. Their intention was very clear and they have assaulted Deepak Das with an intention to murder. 22. In the aforesaid facts and circumstances of the case, we have no hesitation to hold that the prosecution has proved the charge under section 302/34 IPC against the appellants. Their intention was very clear and they have assaulted Deepak Das with an intention to murder. 22. In the aforesaid facts and circumstances of the case, we have no hesitation to hold that the prosecution has proved the charge under section 302/34 IPC against the appellants. There is no merit in this criminal appeal and, accordingly, Criminal Appeal (DB) No. 1155 of 2012 is dismissed. 23. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail Superintendent through “Fax.” 24. Let the lower Court records be sent to the Court concerned forthwith. Appeal dismissed.