JUDGMENT
Shiv Kumar Sharma, J.
1.The appellants in this appeal were put up for trial before the Additional essions Judge Bayana District Bharatpur in Sessions Case No. 3/1998 for having committed murder of Sunil Kumar. Learned Additional Sessions Judge vide judgment dated September 29, 2000 convicted and sentenced the appellants as under-
(1) Babu Lal
U/s. 302 IPC To suffer Imprisonment for life
and fine of Rs. 500A, in default to
further suffer Ten Days Rigorous
Imprisonment.
(2) Ramswaroop (3) Neetu & (4) Ashok Kumar:
U/S. 302/34 IPC To suffer Imprisonment for life
and fine of Rs. 500/-, in default to
further suffer Ten Days Rigorous
Imprisonment.
2. Put briefly the prosecution case is that on August 23, 1997 at 8.45 PM informant Manohar Lal instituted written report (Ex.P- 1) with the Police Station Bayana alleging therein that at about 7.30 PM when he along with his sons Sunil Kumar, Mukesh Kumar, Yogesh Kumar and Mahesh Kumar s/o Gopi Chand were sitting in their shop, the appellants Babu Lal, Ramswaroop, Ashok and Neetu came to the shop and started hurling abuses. Babu Lal who was armed with knife, exhorted to catch hold of all the persons present in the shop, pursuant to which they caught hold of the persons present in the shop and thereafter Babu Lal inflicted knife-blow on the right side of chest of Sunil Kumar who dropped dead. The appellants then took to their heels. On the basis of said report the police registered a case under Section 302/34 1PC and investigation commenced. After completion of the investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Bayana. Charges under Sections 147, 149, 341 and 302 IPC were framed against the appellants who denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 19 witnesses. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. Four witnesses in defence were however examined. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated herein above.
3. The structure of the prosecution case is built on the foundation of the testimony of Manohar Lal (PW.1), Mahesh Kumar (PW. 2), Mukesh Kumar (PW.3), Gopi Chand (PW. 7) and Yogesh Kumar (PW. 8). Dr. K.G. Mittal (PW. 5) is the doctor who conducted the post mortem examination on the body of the deceased. The post mortem report and the evidence of Dr. K.G. Mittal leaves no manner of doubt that Sunil Kumar met a homicidal death. Rajendra Singh (PW.18) and Nasir Khan (PW.19) are the Investigating Officers.
4. Informant Manohar Lal (PW.1), the father of deceased Sunil Kumar, in his deposition stated that while he and his sons Sunil, Mukesh and Yogesh and nephew Mahesh were sitting in the shop the four appellants and one Thankur Das came to the shop and Babu Lal started hurling abuses to Sunil. The informant then asked not to hurl abuses. Babu Lal who was equipped with knife, exhorted to catch hold of all. Ram Swaroop and Thakur Das then caught hold of Sunil and Babu Lal inflicted knife blow on the right side of abdomen of Sunil who fell down and became unconscious and Neetu and Ashok caught hold of the informant. Finding Sunil dead, the assailants fled. In his cross examination Manohar Lal admitted that in the written report (Ex.P-1) and his police statement (Ex.D-1) he did not state that Babu Lal hurled abuses individually to Sunil and Ram Swaroop and Thakur Das caught hold of Sunil.
5. Mahesh Kumar (PW.2), Mukesh Kumar (PW.3), Gopi Chand (PW. 7) and Yogesh Kumar (PW.8) in their examination in chief repeated the version narrated by the informant Manohar Lal. However, when these witnesses were confronted with their police statements, they deposed that although they told the police that Ram Swaroop and Thakur Das caught hold of Sunil and Neetu and Ashok belaboured Manohar Lal but the police did not mention this fact in their statements. In the police statements, which got exhibited by the defence, the initial version of these witnesses was that Ram Swaroop, Neetu, Ashok Kumar and one Thakur Das caught hold of all and Babu Lal inflicted knife blow on the person of Sunil. From the record it appears that although supplementary charge sheet was filed against Thakur Das but no prima facie case was found established against him and he was discharged.
6. Adverting to the post mortem report (Ex.P-4) we find that deceased Sunil sustained following antemortem injury:
Obliq stab wound sharp in nature 9 x 4 cm, 10cm depth in right lobe of Liver Muscle of adjacent area cut and lacerated in nature. Fracture of 9, 10, 11th rib present on right side of back laterally.
Cause of death was severe uncontrollable haemorrhage that caused death in few minutes.
7. Investigating Officer Nasir Khan (PW. 19) got recovered single part of scissors vide Ex.P-14 allegedly used in commission of offence at the instance of appellant Babu Lal. It was sent to FSL and as per FSL report (Ex.P-21) it was not found stained with blood.
8. Mr. S.R. Bajwa, learned Senior Advocate, appearing for the appellants criticised the impugned judgment of learned trial Judge from the various angles. According to learned counsel the prosecution witnesses have indulged in making material improvements in their court statements upon their earlier version divulged before the Investigating Agency. The so-called eye- witnesses are highly partisan being related to the deceased and their testimony calls for a stringent scrutiny. They cannot be placed in the category of wholly reliable witnesses. It is further contended that the allegation leveled in the FIR against Babu Lal is that he inflicted knife-blow on the person of deceased with a knife, but the recovery allegedly effected from him is that of scissors. There is material discrepancy between the medical evidence and the ocular evidence. The site plan of the place of incident does not lend any corroboration to the ocular testimony of prosecution witnesses. The incident admittedly occurred in the market place, still no independent witness has been examined by the prosecution. It is also contended that the injuries suffered by the appellant Babu Lal have not been explained by the prosecution. The prosecution has miserably failed to spell out the proximate cause of the occurrence. The defence evidence has been brushed aside by the learned trial Judge in a callous manner. Learned Senior Counsel alternatively submitted that from the evidence adduced by the prosecution the common intention of appellants to commit the crime is not established. In so far as the allegation against appellant Babu Lal is concerned, it is contended that only one single injury has been attributed to him, therefore, from the evidence on record and established circumstances it is not possible to say that certainity that Babu Lal intended to cause the death of Sunil. Thus the case against Babu Lal does not travel beyond Section 304 part II IPC. Reliance is placed on Mavila Thamban Nambiar v. State of Kerala (1), and R.V. Thankur v. State of Maharashtra (2).
9. On the other hand Mr. B.M. Sharma, learned Public Prosecutor, and Mr. Bin Singh, learned counsel for the complainant, supported the impugned judgment and contended that the guilt of appellants is established from the material on record and they have been rightly convicted and sentenced. Reliance is placed on Nandu Rastogi @ Nandji Rastogi and Anr. v. State of Bihar (3), Kalpesh Kumar @ Bhajiyu Gunvantlal Soni v. State of Gujrat (4), Dhupa Chamar and Ors. v. State of Bihar (5), Surendra Chauhan v. State of M.P. (6), and Mahesh Balmiki @ Munna v. State of M.P. (7).
10. With the help of learned counsel for the parties, we have stringently scrutinised the material on record. As already noticed there are material inconsistencies in the deposition of Manohar Lal (PW.1), Mahesh Kumar (PW.2), Mukesh Kumar (PW. 3), Gopi Chand (PW. 7) and Yogesh Kumar (PW.8) in so far as it relates to the manner of participation of appellants Ram Swaroop, Neetu and Ashok Kumar with crime. As already noticed by us these witnesses have indulged in making material improvements in their court statements upon their earlier version divulged before the Investigating Officer. From the FIR it is not established that the appellants had shared common intention to kill Sunil Kumar. Even individual act of appellants Ram Swaroop, Neetu and Ashok Kumar was not specified in the written report. There is no difference between the evidence adduced by the prosecution against co-accused Thakur Das and the appellants Ram Swaroop, Neetu and Ashok Kumar. The inconsistencies in the statements of the prosecution witnesses qua the appellants Ram Swaroop, Neetu and Ashok Kumar are of such nature that they undermine the substraturm of the evidence. We therefore, entertain doubt that all the appellants Ram Swaroop, Neetu and Ashok Kumar who came to the shop of informant had shared common intention to commit the murder of Sunil Kumar and they acted pursuant to a pre-arranged plan.
11. The facts of the case of Nandu Rastogi v. State of Bihar (supra) are distinguishable. In that case the assailants came together armed with country made pistols. Two of the assailants stood as guard and prevented prosecution witnesses from intervening and three of them took the deceased the inside and one of them shot him dead, thereafter they fled together. Under these circumstances the Hon’ble Apex Court indicated that the assailants shared common intention to commit the offence and in furtherance thereof each one played his assigned role by doing his separate act with a view to achieve the ultimate object of killing the deceased.
12. The Hon’ble Apex Court in Vitthal Tuka Ram More v. State of Maharashtra (8), indicated that mere presence of accused in the house, where the deceased was physically assaulted by other accused person, at the time and date of occurrence cannot be reasonably lead to an inference of their joint participation in the said crime.
13. In the case on hand what the prosecution is able to establish is the presence of the appellants Ram Swaroop, Neetu and Ashok Kumar at the scene of occurrence but it could not be established that they had shared common intention to commit the offence and in furtherance thereof each one played his assigned role by doing his separate act with a view to achieve the ultimate object of killing Sunil Kumar. Thus the conviction of appellants Ram Swaroop, Neetu and Ashok Kumar under Section 302/34 IPC can not be sustained.
14. Recovery of single part of scissors at the instance of appellant Babu Lal in our opinion, does not render the prosecution case doubtful. Although as per the prosecution story knife blow was attributed to Babu Lal but the single part of scissors and knife are alike from the side of blade. If one holds single part of scissors in his hand it, from the side of the blade, appears like a knife.
15. In so far as the non-explanation of the injuries sustained by the appellant Babu Lal is concerned, we find that although Babu Lal vide injury report (Ex.D-11) sustained as many as thirteen injuries but all the injuries were superficial abrasions. In Sekar v. State (9), the Apex Court propounded that more non explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by the accused are minor and superficial.
16. That takes us to another submission of learned Senior Counsel that the offence committed by the appellant Babu Lal does not travel beyond Section 304 Part II IPC. We do not find any merit in this submission. In Mavila Thamban Nambiar v. State of Kerala (supra) on which reliance is placed by learned counsel, the deceased had gone to the shop of the accused with a request to give him a lighted petromax and on the latter’s refusal there were exchange of words which was followed by scuffle. The accused picked up a pair of scissors lying on the table infront of him and caused a stab injury on the right side of the chest of the deceased. In view of these facts it was held that the offence of the accused would more appropriately fall under Section 304 Part II IPC. Case of R.V. Thakur v. State of Maharashtra (supra) is also distinguishable. In that case the deceased got single blow by knife in abdomen by the accused while intervening to save her brother being attacked by the accused. The Apex Court therefore held that it was not possible to say that the accused intended to cause death of intervenor.
17. As per ratio indicated in Mahesh Balmiki v. State of M.P. (supra) even a single blow may in some cases, entail conviction under Section 302 IPC. The question with regard to the nature of offence has to be determined on the facts and circumstances of each case. The nature of injury, whether it is on vital or non- vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the case on hand as already noticed the impact of the single blow caused with sharp edged weapon by the appellant Babu Lal has been disastrous. It was an oblique stab- wound measuring 9x4cm, depth of which was 10cm on right lobe of liver, cutting muscle of adjacent area resulted in uncontrollable haemorrhage and the deceased died in few minutes. On the facts of this case, it can not be said that injury was inflicted without premeditation and the appellant Babu Lal has not taken undue advantage or not acted in a cruel or unusual manner. In our view, Exception 4 to Section 300 IPC, has therefore, no application on the facts of this case.
18. For the reasons aforementioned, we dispose of the instant appeal in the following terms:-
(i) Appeal of appellants Ram Swaroop, Neetu and Ashok Kumar stands allowed, their conviction under Section 302/34 IPC stands set aside and they are acquitted of the said charge. They are on bail, they need not surrender and their bail bonds stands discharged.
(ii) Appeal of appellants Babu Lal fails and stands dismissed. The conviction and sentence awarded to appellant Babu Lal under Section 302 IPC are confirmed.