Rajiv Gupta, J.

1. Heard Shri Saurabh Basu, learned counsel for the appellants, Shri Purshottam Upadhyay, learned AGA for the State and perused the record.

2. The instant criminal appeal as well as government appeal has been filed against the judgment and order dated 18.02.1983 passed by 4th Additional Sessions Judge, Mirzapur in Sessions Trial No. 134 of 1981 (State of U.P. Vs. Nanhak and 4 Others), arising out of Case Crime No. 109 of 1979, Police Station Kotwali Dehat, District Mirzapur, by which the appellants have been convicted for the offence under Section 147 IPC and awarded the sentence of one year rigorous imprisonment, under Section 325/149 IPC and awarded the sentence of five years rigorous imprisonment with a fine of Rs.500/-, under Section 323/149 IPC and awarded the sentence of six months imprisonment with a fine of Rs.500/- and under Section 426/149 IPC and awarded the fine of Rs.50/- with default stipulations.

3. Apart from the aforesaid criminal appeal, State of U.P. has also preferred a government appeal against the said judgment and order with the prayer to reverse the acquittal of the accusedappellants under Section 302/149 IPC and convict them for the said offence.

4. During the pendency of the aforesaid appeals, accusedappellants Purshottam and Hira Lal have passed away and as such, criminal appeal as well as government appeal, qua the said accused persons, has been dismissed as abated.

5. Since both the appeals arise from the same judgment and order, they are being taken up together and disposed of by a common judgment.

6. Shorn of unnecessary details, the prosecution case is unravelled in the written report lodged by one Ramdev, which was registered vide Case Crime No. 109 of 1979, under Sections 147, 149, 307, 325, 426 IPC, Police Station Kotwali Dehat, District Mirzapur registered vide G.D. Report No. 21. The written report, on the basis of which, chik FIR has been registered, has been marked as Exhibit Ka-1, prepared by PW-10 Juit Ram at the relevant date and time.

7. The allegations made in the FIR are that first informant Ramdev is a permanent resident of Village Mahkuchhwa, Police Station Kotwali Dehat, District Mirzapur. It is further stated that on 08.05.1979, accused Nanhak had cut the Bamboo belonging to Khetal and this fact was disclosed to Khetal by the first informant Ramdev, consequent to which, Nanhak got angry with Ramdev and threatened to teach him a lesson.

8. It is further stated that on 09.05.1979 at about 6:00 PM, when the first informant Ramdev was guarding his mango crop, which he had purchased from one Ram Khelawan, accused persons Nanhak, Purshottam, Hira Lal, Baul and Bihari, armed with lathi danda, reached there and started, felling mangoes and further hurled abuses to Ramdev. On being resisted not to abuse and pluck the mangoes, Hira Lal exhorted the accused persons to assault and kill the first informant Ramdev. On his exhortation, all the assailants with a common object, started assaulting Ramdev with lathi danda. On alarm being raised, Khetal, Sukhdev, Shiv Kumari and many other persons rushed to rescue Ramdev, however, the assailants started assaulting them also, consequent to which, Khetal, Sukhdev and Shiv Kumari received injuries. On alarm being raised, the assailants made their escape good.

9. On the basis of the said allegations, the first informant/ injured Ramdev got a written report scribed by one Lallan (PW-4) and reached the Police Station and handed over the said written report to the Head Moharrir Juit Ram (PW-10), who, on the basis of the said written report, lodged the chik FIR, which has been proved and marked as Exhibit Ka-18. Corresponding G.D. Report No.21 was also drawn, which has been proved and marked as Exhibit Ka21. Khetal, Sukhdev and Shiv Kumari, who also received injuries in the said incident, had reached the Police Station alongwith Ramdev, who was also an injured and their Chitthi Majroobi was prepared, which has been proved and marked as Exhibit Ka-22 and Exhibit Ka-23. On the basis of Chitthi Majroobi, the first informant alongwith three other injured persons were medically examined on 09.05.1979 by Dr. C.P. Singh (PW-6) and their injury reports were prepared, which has been proved and marked as Exhibit Ka-20, 21, 22, 23.

10. The investigation of the said case was entrusted to S.I. Mohammad Kamil, who visited the place of incident and prepared the site plan, which has been proved and marked as Exhibit Ka-8. The Investigating Officer also collected the blood-stained and plain earth from the place of incident and kept it in a container and prepared a fard recovery memo, which has been proved and marked as Exhibit Ka-9. The blood-stained clothes of the injured Ramdev were also taken in possession by the police, who prepared the fard recovery memo, which has been proved and marked as Exhibit Ka-10.

11. The Investigating Officer thereafter recorded the statement of the witnesses, however, since the condition of the victim Ramdev was serious, he was admitted in District Hospital, Mirzapur. The Investigating Officer reached the District Hospital, Mirzapur to record his statement, however, he was found unconscious, thereafter, he could not regain his consciousness and ultimately, he succumbed to his injuries on 12.05.1979. The information about the death of the victim Ramdev was sent to S.O., Police Station Kotwali Dehat, District Mirzapur through ward boy, which was reduced in writing in the General Diary at 4:00 PM, which has been proved and marked as Exhibit Ka-27. On the basis of the said death memo, the case was converted under Section 302 IPC. Thereafter, on the basis of the said death memo, the police of Police Station Kotwali Dehat reached the District Hospital, Mirzapur and conducted the inquest on the person of the deceased and thereafter, prepared the relevant documents, namely, photo nash, challan nash, Chitthi R.I., Chitthi C.M.O., etc. and thereafter, dead body was sealed and despatched for post-mortem and an autopsy was conducted on the person of the deceased on 12.05.1979 at about 12:30 PM. In the said post-mortem report, the Doctor has noted following injuries on the person of the deceased, which are noted herein-below:-

(i) Lacerated wound 3 cm. x ¼ cm. x scalp deep on middle of left side head 11 cm. above left ear with contused swelling 16 cm. x 9 cm. extending to forehead and bridge of nose.

(ii) Contusion 5 cm. x 2.5 cm. over both eye lids of Rt. Eye.

(iii) Abrasion 5 cm. x 3 cm. outer, middle of Rt. A

(iv) Lacerated wound 2 cm. x ½ cm. x muscle on front and middle of Rt. leg.

(v) Abrasion 2.5 cm x ½ cm. over outer part of Rt. Elbow

The cause of death has been noted to be head injury and shock as a result of anti-mortem injury.

12. The Investigating Officer after concluding the investigation, submitted the charge-sheet against the accused persons, on the basis of which, learned Magistrate had taken cognizance of the offence and since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions for trial, where it was registered as Sessions Trial No. 134 of 1981 (State of U.P. Vs. Nanhak and Others). The trial court thereafter framed the charges against the accused-appellants, which were read out and explained to them, however, they abjured the charges, did not plead guilty and claimed to be tried.

13. During the course of trial, the prosecution, in order to bring home the guilt against the accused-appellants, examined following witnesses. Their testimony, in brief, is enumerated hereinunder :-

14. PW-1 Khetal is an injured witness and he, in his testimony, has stated that on the day and time of the incident, thedeceased Ramdev was guarding his mango crop, when the accused-appellants Nanhak and Purshottam, Bihari, Hira Lal and Baul reached there at about 6:00 PM and at the relevant time, he was standing in the eastern side, where Sukhdev and Shiv Kumari were also present. He further stated that at the relevant time, all the five assailants hurling abuses to Ramdev started felling/ plucking his mangoes. On resisting not to abuse and to pluck the mangoes, Hira Lal exhorted the assailants to kill him. He alongwith Sukhdev and Shiv Kumari rushed to rescue him, however, the said five assailants started assaulting Ramdev, when they reached there, he alongwith Sukhdev and Shiv Kumari were also assaulted. On receiving injuries, Ramdev fell down and his injuries were bleeding, when the villagers reached there, the assailants made their escape good. The report in respect of the incident was scribed by one Lallan, which was read out to him and thereafter, he alongwith Ramdev, Sukhdev and Shiv Kumari reached the Police Station and handed over the report, on the basis of which, the FIR was registered. The police thereafter had sent them to the hospital for medical examination, however, since the injuries of Ramdev were serious, he was admitted in the District Hospital, Mirzapur, where he survived for two days and thereafter, he succumbed to his injuries. He further stated that one day prior to the said incident, Nanhak had forcibly cut his Bamboo and this fact was disclosed to him by Ramdev, however, Nanhak came to know about the said incident, as such, he threatened to see him.

15. During cross-examination, PW-1 has reiterated the same story and further stated that at the time of incident, Sukhdev had pelted stones, which hit Purshottam, however, Sukhdev had not assaulted Purshottam with the lathi. In the said incident, Sukhdev and Shiv Kumari also received injuries. Ramdev suffered five injuries, which were bleeding. At the time of incident, Ramdev was not in a serious condition and was speaking. The FIR was scribed by Lallan, however, he did not visit the Police Station. The FIR was registered on the dictation of Ramdev and thereafter, he was taken to the Police Station on a Rickshaw. He has denied the fact that Ramdev was not unconscious and had not dictated the FIR. He further denied the suggestion that no attempt was made to pluck the mangoes, consequent to which, the quarrel started. He further denied the suggestion that Sukhdev assaulted Baul by kicks and fists, consequent to which, Purshottam assaulted him, then he was assaulted by Sukhdev and in the said fight, they received injuries. He has further denied the suggestion that FIR was lodged on the next day.

16. PW-2 Sukhdev is another injured witness and he has stated that on the day of incident at about 6:00 PM, Ramdev was guarding his mango crop and on the eastern side, he was standing alongwith Khetal and Shiv Kumari, when the assailants Nanhak, Purshottam, Bihari Lal, Baul and Hira Lal reached there and hurling abuses to Ramdev, started plucking the mangoes. On resistance being raised by Ramdev, Hira Lal exhorted the accused persons to kill Ramdev, consequent to which, all the five accused persons assaulted Ramdev by lathi and when they reached near Ramdev to to rescue him, they were also assaulted. On receiving injuries, Ramdev fell down and blood had also fallen there. He further stated that on account of cutting of Bamboo belonging to Khetal, there was quarrel between Nanhak and Ramdev, who extended threats to see him leading to enmity. The information in respect of the incident was scribed by Lallan on the dictation of Ramdev and he alongwith Khetal, Shiv Kumari and Ramdev had reached the Police Station and lodged the report. He has further stated that the police constable has noted their injuries and thereafter, they were taken for medical examination, however, since the condition of  Ramdev was serious, he was admitted in the District Hospital, Mirzapur.

17. During cross-examination, he stated that at the relevant time of incident, Lallan was not present there, however, he reached subsequently. He further denied the suggestion that mangoes were not plucked and no quarrel took place. He further stated that Ramdev suffered four-five injuries and at the relevant time, Shiv Kumari was grazing her cattle. He further denied the suggestion that at the relevant time of quarrel, five accused persons were not present.

18. PW-3 Shiv Kumari is another injured witness and she, in her examination-in-chief, has stated that incident had taken place at about 6:00 PM in the evening and at the relevant time, Ramdev was present in the orchard guarding his mango crop, while she was present in the sugar-cane field, Khetal and Sukhdev were also present there. She further stated that at the relevant time, five persons Nanhak, Purshottam, Bihari, Baul and Hira Lal, armed with lathi danda, reached there and started plucking mangoes and hurled abuses. On resistance by Ramdev, Hira Lal exhorted to kill him, consequent thereto, all the accused persons started wielding lathi and when, she alongwith Sukhdev and Khetal rushed to rescue him, they were also assaulted. When Sukhdev received injuries, he pelted stones, which hit Purshottam causing him injury. The FIR was scribed by Lallan and thereafter, they reached the Police Station and lodged the report, from where, they were taken to the hospital for medical examination.

19. During cross-examination, she stated that they had reached the Police Station on a Rickshaw and the injuries of Ramdev were not simple in nature and at the relevant time, she was grazing her cattle in the field of Ram Khelawan, where sugar cane was grown and she received injuries in the incident and fell down. Her statement was recorded at about 10:00-12:00 PM. She denied the suggestion that they received injuries due to pelting of stones and not on being assaulted by lathi. She further denied the suggestion that Lallan was not present and the FIR was scribed by some other person.

20. PW-4 Lallan Ram is the scribe of the FIR, who, in his examination-in-chief, has stated that Ramdev was assaulted under the mango tree and after the incident, he had scribed the FIR on the dictation of Ramdev, which was read out to him, who had put his thumb impression. The written report has been proved by him, which has been marked as Exhibit Ka-1.

21. During cross-examination, he denied the suggestion that Ram Lakhan is his real brother and he is falsely deposing in the instant case. On hearing alarm, he himself reached the place of incident and Ramdev asked him to scribe the report, which was scribed at the dictation of Ramdev. He further denied the suggestion that he was not present at the place of incident and had not scribed the FIR at the dictation of Ramdev. He further denied the suggestion that on the written report, thumb impression of Ramdev is not marked and subsequently, manipulated.

22. PW-5 Ram Nath is another witness of the incident and has stated that incident had taken place at 6:00 PM, while he was returning to his home, however, he had not witnessed the incident of assault as the assailants had already made their escape good, when he reached there, however, saw Khetal, Shiv Kumari, Sukhdev and Ramdev in an injured condition.

23. During cross-examination, he stated that when he would proceed towards his house from the shop, the mango tree would fall on the way, where the incident had taken place and he had seen the assailants running away from the place of incident and Ramdev had informed him the name of the assailants. He further denied the suggestion that he has falsely deposing in the incident.

24. PW-6 is the Doctor C.P. Singh, who had examined all the four injured witnesses and prepared the injury reports, which has been proved and marked as Exhibit Ka-2, 3, 4, 5 respectively. All the injured persons were brought to the hospital by Constable Janardan Pandey on 09.05.1979.

25. During cross-examination, he stated that Ramdev was got admitted in the hospital and at the time of his admission, he was conscious and oriented, however, on 12.05.1979 at about 3:00 PM, he died. The death memo was sent at the Police Station. He further proved the post-mortem examination report of the deceased Ramdev and has found anti-mortem injuries on the person of the deceased. He further stated that on account of assault, frontal bone of the deceased was fractured in several pieces and blood had coagulated there. He further stated that on account of antimortem injuries, he died and proved the post-mortem examination report, which has been exhibited as Exhibit Ka-7. He further stated that in the ordinary course, his head injury was sufficient to cause death. He further stated that injuries of injured persons and the deceased could have been caused by pelting of stones.

26. PW-7 Mithoo Ram had accompanied the Investigating Officer Mohammad Kamil Siddiqui (Now Dead) for the investigation. He further stated that on the next day, the Investigating Officer had recorded the statement of Sukhdev, Khetal and Shiv Kumari and prepared the site plan, which has been proved and marked as Exhibit Ka-8. The factum of recovery of blood-stained earth and plain earth collected by the Investigating Officer and kept in a container, was also proved by him and marked as Exhibit Ka-9. The blood-stained cloth, which was brought at the Police Station by one Murli Prasad, was also taken in possession and fard recovery memo was proved and marked as Exhibit Ka-10. After concluding the investigation, the charge-sheet was submitted by the Investigating Officer, which has been proved by him as Exhibit Ka-11. 27. During cross-examination, he stated that blood was found under the mango tree, however, no Bamboo was found. He denied the suggestion that he had not accompanied the Investigating Officer.

28. PW-8 Tribhuwan Yadav is the Constable, who had taken the dead body of the deceased for post-mortem examination and handed over the relevant papers to the Doctor for conducting the post-mortem, however, he has not cross-examined.

29. PW-9 Murli Prasad is the witness of fard recovery memo and has stated that at the relevant time, from the field of Ram Khelawan, the Investigating Officer had collected the blood-stained earth and plain earth and prepared the recovery memo, which has been proved and marked as Exhibit Ka-9. He further stated that blood-stained cloth of the deceased was also given by him to the Investigating Officer to prepare its recovery memo and was got signed by him.

30. PW-10 Juit Ram is the Head Moharrir, who on the basis of written report of the deceased Ramdev, had scribed the chik FIR, which has been proved and marked as Exhibit Ka-18. On the basis of the said FIR, corresponding G.D. entry was made vide G.D. Report No.21, which has been proved and marked as Exhibit Ka-19. He further stated that alongwith Ramdev (Deceased), Khetal, Shiv Kumari and Sukhdev had also reached the Police Station and majroobi chitthi was prepared by Chandra Bhan Yadav, which has been proved and marked as Exhibit Ka-22 and Ka-23. He further stated that at the relevant time, S.I. Mohammad Kamil Siddiqui was not present at the Police Station, however, on his return, the investigation was entrusted to him, who reached the place of incident and prepared the relevant documents including the fard recovery memos. On 12.05.1979, information about the death of Ramdev was transmitted by ward boy, which was noted in the G.D. and thereafter, the case was converted from Section 307 IPC to Section 302 IPC. The inquest on the person of the deceased was done by S.I. Bharat Ratna and relevant documents were prepared by him. On 09.05.1979, accused Purshottam gave a report at the Police Station on the basis of which, a non-cognizable report (NCR) under Section 323 IPC was registered, which has been proved and marked as Exhibit Ka-31. On the basis of which, G.D. Report No.23 was prepared and accused Purshottam was also medically examined.

31. During cross-examination, he further denied the suggestion that Ramdev had not reached the Police Station and his injuries report was subsequently prepared. He further denied the suggestion that at the relevant time, the FIR was not registered and was subsequently registered.

32. PW-11 Dr. O.P. Taneja is the Assistant Chemical Analyst at Vidhi Vigyan Prayogshala and has stated that relevant material relating to Case Crime No. 109 of 1979 was received by him in the lab and on the basis of which, Guru Sharan Bhatnagar had prepared the analysis report and he had seen him preparing the documents in his hand writing, which has been proved and marked as Exhibit Ka-13.

33. After concluding the testimony of the witnesses, statement of accused-persons under Section 313 CrPC was recorded by putting all the incriminating circumstances to the accused-appellants, who denied the incriminating circumstances and stated that they have been falsely implicated and in his defence, produced DW-1 Dr. G.D. Dubey, who examined accused Purshottam to prove his injuries, which are as under :-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

34. Dr. G.D. Dubey has further stated that all the injuries are simple in nature caused by blunt object and has proved the said injuries, which has been marked as Exhibit Kha-1. He has further stated that said injuries are caused by lathi at 4:00-5:00 PM in the evening.

35. During cross-examination, he stated that injury no.3 could be caused by friction, whereas injury no.2 could be caused by some blunt object, which may be a result of pelting stones. He further stated that injury nos. 2 & 3 are superficial, however, injury no.1 is not superficial but such injuries could be fabricated.

36. The trial court, after appreciating the entire material and evidence available on record, has held that the prosecution has successfully established its case beyond all reasonable doubts against the surviving accused-appellants Nanhak, Bihari and Baul, however, not for the offence under Section 302/149 IPC but under Sections 147, 325/149, 323/149, 426/149 IPC. The explanation tendered by surviving appellants has been found to be inadequate and as such, they are liable for conviction for the aforesaid offences.

37. Learned counsel for the appellants has submitted that trial court has not appreciated the material evidence on record in right perspective and has illegally recorded the finding of conviction against the appellants even under the aforesaid offences.

38. Learned counsel for the appellants has next submitted that injuries of the injured persons, namely, Khetal, Sukhdev and Shiv Kumari are self inflicted and has not been caused as alleged in their respective testimonies.

39. Learned counsel for the appellants has further submitted that in fact, accused-appellant Baul was being assaulted by Surli, Murli and Sukhdev by kicks and fists and at the relevant time, accused-appellant Purshottam reached there and tried to rescue Baul, he was also assaulted by Surli, Murli and Sukhdev, on account of which, Purshottam also received injuries and was medically examined, which has been proved by D.W.-1 however, the trial court has completely overlooked the injuries received by Purshottam and has illegally recorded the finding of conviction against the appellants, though a non-cognizable report has also been lodged by Purshottam at the relevant Police Station for assaulting him in the said incident, as such, the impugned judgment and order convicting and sentencing the appellants is bad in law and is liable to be set aside.

40. Per contra, learned AGA has submitted that information in respect of the said incident was lodged by victim Ramdev himself, who has given a compete version of the incident, wherein it is stated that accused-appellants formed an unlawful assembly and with a common object to kill him, had assaulted him with lathi danda and when other witnesses came to rescue him, they were also assaulted having suffered injuries on their person, who have testified before the court and the defence has not been able to elicit anything to doubt the credibility of the said witnesses.

41. Learned AGA has next submitted that looking to the injuries sustained by the deceased and the injured persons as well as the impeccable testimonies of the injured witnesses recorded during the course of trial before the court below, a clear case under Section 302/149 IPC is made out against the appellants. The contrary finding recorded by the trial court that since only a single fatal injury has been suffered by the deceased but the author of the said fatal injury has not been specified by the prosecution in its evidence, as such, the offence would fall under Section 325 read with Section 149 and not under the changed section i.e. 302/149 and other allied offences is patently illegal, erroneous and liable to be set aside outrightly.

42. Learned AGA has further submitted that in the instant case, as many as five persons had formed an unlawful assembly and with a common object had assaulted the deceased with an intention to kill him, therefore, in any case, the offence would not fall under Section 325/149 IPC as held by the trial court but under Section 302/149 IPC, the contrary finding given by the trial court is wholly illegal and is liable to be set aside.

43. Having considered the rival submissions made by learned counsel for the parties and the evidences adduced by the witnesses during the course of trial, it is clear that the accusedappellants, who were five in number, had formed an unlawful assembly and armed with lathi, had reached the place of incident and hurling abuses to Ramdev started plucking mangoes and when he resisted not to hurl abuses, on the exhortation of accusedappellant Hira Lal, all the five persons, armed with lathi danda, assaulted the victim Ramdev and further when other witnesses, namely, Khetal, Sukhdev and Shiv Kumari rushed to rescue him, they were also assaulted, consequent to which, they suffered injuries and have been medically examined. During the course of trial, all the three injured witnesses have completely corroborated the prosecution story in all material particulars and the defence has not been able to point out any ambiguity or embellishment, exaggeration or improvement in their testimony so as to doubt the credibility of the said witnesses. Even the medical report of the deceased as well as that of the injured witnesses completely corroborates the prosecution story and there is nothing on record to doubt the credibility of the said witnesses.

44. So far as the submission of learned counsel for the appellants to the extent that in the said incident, accused-appellant Purshottam has also suffered injuries on his person and was also medically examined and has also lodged a non-cognizable report against the injured person Sukhdev, however, trial court has not considered the said evidence and has illegally recorded the finding of conviction against the appellants is concerned, it may be pointed out that the said incident of assault made on Purshottam, incident is said to have taken place at 4:00 PM in the evening, while the incident in question is alleged to have occurred at 6:00 PM in the evening and therefore, the information lodged by Purshottam in respect of his assault by Sukhdev can not be said to be the counter version of the instant case, where victim Ramdev was done to death and in fact, the incident reported by Purshottam is completely a different incident and therefore, on account of receiving injuries by Purshottam, the veracity of the instant case can not be affected, in any manner, as pleaded by learned counsel for the appellants and therefore, the non-cognizable report lodged by Purshottam in respect of his assault by Sukhdev and two others, does not affect, in any way, the credibility of the said incident, in which, Ramdev was killed and Khetal, Sukhdev and Shiv Kumari had received injuries. Thus, we are of the opinion that the said incident, in which, Purshottam suffered injuries will not have any hearing upon the instant case and the prosecution will not have any burden to explain the injuries alleged to be received by Purshotttam probably in some other incident and both the cases cannot be linked together.

45. Thus, we find that the defence has not been able to point out any circumstance, which may doubt the credibility of the witnesses, who by their impeccable testimonies has proved the case against the appellants beyond all reasonable doubt and therefore, the finding of conviction recorded by the trial court against the appellants do not suffer from any illegality and the same is just, proper and legal and the conviction recorded against the appellants is liable to be affirmed by dismissing the criminal appeal.

46. Now, the main question that arises for our consideration in the Government Appeal filed by the State is whether the judgment and order passed by the trial court acquitting the accused-appellants under Section 302/149 IPC and convicting him only under Section 325/149 IPC and other allied offences is just, proper and legal or erroneous, on the basis of evidence adduced by the witnesses during the course of trial.

47. It is germane to point out here that while recording the finding of acquittal against the appellants under Section 302/149 IPC, the trial court has held that in the instant case, since the deceased Ramdev received only a single fatal injury on his head at the hands of the accused persons, which was caused by lathi but there is no cogent evidence on record to prove that the accusedappellants had common object to kill Ramdev and the author of said injury has not been specified, therefore, the offence, in any case, would not fall under Section 302/149 IPC but under Section 325/149 IPC.

48. In our considered opinion, the said finding recorded by the trial court does not appears to be just, proper and legal. From the entire evidence adduced before the trial court, it is evident that the accused persons, who were five in number, had formed an unlawful assembly and with a common object, had assaulted the deceased and the injured persons in furtherance of their common object to kill Ramdev, as such, present offence would not fall under Section 325/149 as held by the trial court.

49. Moreover, since the appellants were the part of an unlawful assembly, it was not necessary for the prosecution to attribute the specific role to each of them. In Masalti Vs. State of U.P. reported in (1964) 8 SCR 133, the Constitution Bench of this Court has observed as under :-

13. The law with regard to conviction under Section 302 read with Section 149 of IPC has been succinctly discussed by a Constitution Bench of this Court in the locus classicus of Masalti Vs. State of U.P., wherein this Court observed thus:

“17. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly

In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly

It is in that context that the observations made by this Court in the case of Baladin [AIR 1956 SC 181] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly.

In fact, Section 149 makes it clear that 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."

14. It could thus clearly be seen that the Constitution Bench has held that it is not necessary that every person constituting an unlawful assembly must play an active role for convicting him with the aid of Section 149 of IPC. What has to be established by the prosecution is that a person has to be a member of an unlawful assembly, i.e. he has to be one of the persons constituting the assembly and that he had entertained the common object along with the other members of the assembly, as defined under Section 141 of IPC. As provided under Section 142 of IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly

50. Undisputedly, from the evidence of PW-1 Khetal, PW-2 Sukhdev and PW-3 Shiv Kumari, it is clear that the present appellants were members of an unlawful assembly and undoubtedly, in pursuit of their common object has committed the incident, as such, in view of law laid down by this Court in the case of Masalti (Supra), it is not necessary that each of such person for being convicted, must have actually assaulted the deceased.

51. The Hon'ble Apex Court in Criminal Appeal No. 890 of 2012 (Bholey Vs. State of M.P.) has clearly held that to constitute an offence under Section 149 IPC, one cannot expect a witness to speak with graphic detail about the specific overt act that can be attributed to each accused. Further, the Hon'ble Apex Court in Criminal Appeal No. 2195 of 2023 (Sandeep Kumar Vs. State of Haryana) has held that “for offence” under Section 149 IPC, one simply has to be a part of unlawful assembly. No overt act needs to be assigned to a member of unlawful assembly.

52. In Criminal Appeal No. 524 of 2021 (Parshuram Vs. State of U.P.), Hon'ble Apex Court held that individual role/ and or overt act by individual accused is not significant, when all accused persons are charged under Section 149 IPC and were part of unlawful assembly.

53. As such, in view of the aforesaid proposition of law laid by Hon'ble Apex Court, we are of the view that in the facts and circumstances of the case and the evidence adduced by the injured eye witnesses, the act of the accused respondents would not fall under Section 325 read with Section 149 IPC as held by the trial court, which finding in our opinion is bad in law and liable to be set aside.

54. Having held that the question, which we are left to answer is as to whether the conviction under Section 302/149 IPC, as submitted by learned AGA in the connected government appeal, would be tenable or not. In this respect, we have already gone through the evidence adduced by the prosecution and the genesis of the occurrence and the participation of the appellants herein, PW-6 Dr. C.P. Singh was medically examined by the prosecution, being the Medical Officer, who conducted the post-mortem on the person of the deceased. In the post-mortem report, the Dr. C.P. Singh has noted five injuries, which are as under:

(i) Lacerated wound 3 cm. x ¼ cm. x scalp deep on middle of left side head 11 cm. above left ear with contused swelling 16 cm. x 9 cm. extending to forehead and bridge of nose.

(ii) Contusion 5 cm. x 2.5 cm. over both eye lids of Rt. Eye.

(iii) Abrasion 5 cm. x 3 cm. outer, middle of Rt

(iv) Lacerated wound 2 cm. x ½ cm. x muscle on front and middle of Rt. leg.

(v) Abrasion 2.5 cm x ½ cm. over outer part of Rt. Elbow.

55. The cause of death, as noted in the post-mortem report, appears to be coma and shock due to head injury resulting from injury no.1, whereas other injuries have been noted to be simple in nature.

56. It is further germane to point out here that in the instant case, the weapon assigned to the appellants is lathi danda, which, by no stretch of imagination, can be said to be a lethal weapon used in the incident, on the basis of which, we will now determine as to whether there was any intention on the part of the accusedappellants to cause the death of the deceased or just to assault him with an intention to cause bodily injury.

57. The Hon'ble Supreme Court in its recent decision in Criminal Appeal No. 2043 of 2023 (Anbazhagan Vs. The State Represented by the Inspector of Police) reported in ………………..… has very lucidly explained distinction between the terms 'intention' and 'knowledge'.

58. The word “intent” is derived from the word archery or aim. The “act” attempted to must be with “intention” of killing a man.

59. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person cannot be proved by direct evidence but is to be deduced from the facts and circumstances of a case.

60. In the case of Smt. Mathri Vs. State of Punjab, reported in AIR 1964 SC 986, at Page 990, Das Gupta J. has explained the concept of the word ‘intent’. The relevant observations are made by referring to the observations made by Batty J. in the decision Bhagwant Vs. Kedari, I.L.R. 25 Bombay 202. They are as under :-

“The word “intent” by its etymology, seems to have metaphorical allusion to archery, and implies “aim” and thus connotes not a casual or merely possible result-foreseen perhaps as a not improbable incident, but not desired-but rather connotes the one object for which the effort is made-and thus has reference to what has been called the dominant motive, without which, the action would not have been taken.”

(Emphasis supplied)

61. In the case of Basdev Vs. State of Pepsu, AIR 1956 16 SC 488, at Page 490, the following observations have been made by Chadrasekhara Aiyar J. :-

“6. ... Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion.”

(Emphasis supplied) 

62. In para 9 of the judgment, at page 490, the observations made by Coleridge J. in Reg. v. Monkhouse, (1849) 4 COX CC 55(C), have been referred to. They can be referred to, with advantage at this stage, as they are very illuminating:

“The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another's head, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act. So if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely; was he rendered by intoxication entirely incapable of forming the intent charged ”

(Emphasis supplied)

63. Bearing in mind the test suggested in the aforesaid decision and also bearing in mind that our legislature has used two different terminologies ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that ‘intent’ and ‘knowledge’ cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.

64. In another case reported in 2006 (11) SCC 444, Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of A.P., the Hon'ble Supreme Court has laid down various relevant circumstances, from which the intention could be gathered. Some relevant considerations are the following :-

(i) The nature of the weapon used, (ii) whether the weapon was carried by the accused or was picked up from the spot, (iii) whether the blow is aimed at the vital part of the body, (iv) the amount of force employed in causing injury, (v) whether the act was in the course of sudden quarrel or sudden fight, (vi) whether the incident occurred by chance or whether there was any premeditation, (vii) whether there was any prior enmity or whether the deceased was a stranger, (viii) whether there was a grave or sudden provocation and if so, the cause for such provocation, (ix) whether it was heat of passion, (x) whether a person inflicting the injury has taken undue advantage or has acted in a cruel manner, (xi) whether the accused persons has dealt a single blow or several blows.

65. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. The framers of the IPC designedly used the two words ‘intention’ and ‘knowledge’, and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he “must have been aware that certain specified harmful consequences would or could follow.” (Russell on Crime, Twelfth Edition, Volume 1 at Page 40).

66. The phraseology of Sections 299 and 300 respectively of the IPC leaves no manner of doubt that under these Sections when it is said that a particular act in order to be punishable be done with such intention, the requisite intention must be proved by the prosecution. It must be proved that the accused aimed or desired that his act should lead to such and such consequences. For example, when under Section 299 it is said “whoever causes death by doing an act with the intention of causing death” it must be proved that the accused by doing the act, intended to bring about the particular consequence, that is, causing of death. Similarly, when it is said that “whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death” it must be proved that the accused had the aim of causing such bodily injury as was likely to cause death.

67. Thus, in order that the requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the two specific intentions must be proved. But, even when such intention is not proved, the offence will be culpable homicide if the doer of the act causes the death with the knowledge that he is likely by his such act to cause death, that is, with the knowledge that the result of his doing his act may be such as may result in death.

68. The important question which has engaged our careful attention in this case is, whether on the facts and in the circumstances of the case we should maintain the conviction of the appellant herein for the offence under Section 302 or we should further alter it to Section 304 Part II of the IPC

69. Sections 299 and 300 of the IPC deal with the definition of ‘culpable homicide’ and ‘murder’, respectively. In terms of Section 299, ‘culpable homicide’ is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it emphasises on the expression ‘intention’ while the latter upon ‘knowledge’. Both these are positive mental attitudes, however, of different degrees. The mental element in ‘culpable homicide’, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be ‘culpable homicide’. Section 300 of the IPC, however, deals with ‘murder’, although there is no clear definition of ‘murder’ in Section 300 of the IPC. As has been repeatedly held by this Court, ‘culpable homicide’ is the genus and ‘murder’ is its species and all ‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are not ‘murders’. (see Rampal Singh vs. State of U.P., (2012) 8 SCC 289).

70. The scope of clause thirdly of Section 300 of the IPC has been the subject matter of various decisions of this Court. The decision in Virsa Singh (supra) has throughout been followed in a number of cases by this Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then clause thirdly of Section 300 of the IPC is attracted.

71. The Hon'ble Supreme Court further in its decision in Criminal Appeal No. 2043 of 2023 (supra) has thus held that the distinction between culpable homicide (Section 299 of IPC) and the murder (Section 300 of IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

72. The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

72. The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

74. When single fatal injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

75. Now, we recapitulate the facts and circumstances of the instant case on the fateful day of the incident, the appellants had reached the mango orchard of the deceased and started plucking mangoes and hurling abuses and on resistance being raised by the deceased, the appellants, who were five in number, had started assaulting the deceased by lathi, consequent to which, the deceased suffered a single fatal blow on his head resulting in his death, though, there was no intention to cause his death, therefore, we find it is difficult to come to the conclusion that when the appellants struck the deceased with the lathi, they intended to cause him bodily injury, sufficient in the ordinary course of nature, to cause death. In the present case, admittedly the weapon of offence is lathi danda, which is a common item carried by the villagers in this country linked to his identity.

76. It is true that the deceased had suffered internal head injury, consequent to which, he succumbed injuries, however, the important question is whether internal head injury is sufficient to draw inference that the appellants intended to cause such bodily injury to the deceased, was sufficient to cause his death.

77. Thus, from the aforesaid circumstances, we are of the considered opinion that none of the clauses of Section 300 of IPC are attracted as intention of the appellants to cause death or such bodily injury, which they knew would cause the death of other person or sufficient in the ordinary course of nature to cause death, is not proved.

78. Thus, we are of the considered opinion that the appellants had not committed the offence that fall within the meaning of Section 300 of IPC i.e “culpable homicide amounting to murder”, which is punishable under Section 302 of IPC. The present incident had occurred without premeditation in a fit of rage on a trivial matter of plucking mangoes and hurling abuses. Thus, in our considered opinion, the offence committed by the appellants would fall within the meaning of “culpable homicide not amounting to murder” under Section 304 of IPC.

79. Now, the next question would be as to whether the appellants would be guilty in Part-I or Part-II of Section 304 of IPC as is evident from the record. The purpose apparently was to beat up the deceased by giving a sound beating but certainly not with any intention to kill him. To us, it appears that at the most it can be said that the act of the appellant in hitting the deceased was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. The case of the appellant would, therefore, clearly fall under Section 304 Part II IPC. The trial court did not apply its mind in proper perspective and was rather swayed by the fact that on account of lathi blow by the appellants, deceased died an unnatural death and since, the author of single fatal injury to the deceased is not known, therefore, offence would fall under Section 325/149 IPC as held by the trial court, in our opinion, is not the correct view and sought to be reversed in the facts and circumstances of the case, however, the offence, in our opinion would fall under Section 304/149 IPC. There was no material on record to show that the appellant was bent upon killing the deceased and eventually death came out to be the result. Section 304 is as under :-

"Punishment for culpable homicide not amounting to murder.

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

80. This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a lathi danda on 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.

81. We, therefore, hold that the appellants to be guilty for an offence under Section 304 (Part II) of IPC. Their conviction under Section 325/149 IPC is, therefore, set aside. Instead of convicting the appellants under Section 325/149 IPC, they are liable to be convicted under Section 304 (Part II)/149 of IPC and sentence them for six years rigorous imprisonment with a fine of Rs.30,000/-.

82. Thus, in sum and substance, the appellants shall now stand convicted under Section 147 IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/- each, under Section 304 (Part II)/149 IPC and sentenced to undergo six years R.I. With a fine of Rs. 30,000/- each, under Section 323/149 IPC and to a fine of Rs. 100/- each and under Section 426/149 IPC and to a fine of Rs. 50/- each.

83. In case of default of payment of fine under Section 147 IPC, the defaulter accused shall undergo R.I. for three months each. In case of default of payment of fine under Section 304 (Part II)/149 IPC, the defaulter accused shall undergo R.I. for six months each. In case of default of payment of fine under Section 323/149 IPC, the defaulter accused shall further undergo R.I. for one month each. In case of default of payment of fine under Section 426/149 IPC, the defaulter accused shall undergo R.I. for 15 days each.

84. The appellants are on bail. Chief Judicial Magistrate concerned is directed to ensure the custody of the appellants to serve out the remaining sentences. Accordingly, the criminal appeal, filed by the appellants, is dismissed, however, government appeal, filed for reversing the acquittal of the appellants under Section 302 IPC, is partly allowed in terms of aforesaid order of conviction and sentence.

85. Let a copy of this judgment and order be forwarded to the court concerned along with the trial court record for information and necessary compliance.