Yad Ram & Babloo v. State NCT of Delhi

2. An abrasion of size 2 an x L cm in lateral side of Ieft knee 30 cm from heel (Ieft side). \

3. An abrasion of size 3 cm x L cm in tlrc outer aspect of middle ' third of the abdomen. It is 24 cm frgm Ieft iliac crest 27 cm fro* shoulder top and 10 cm from the midline. Opinion: The cause of death in this case is haemorrlogic shock dt'rc to injury no.L causedby sharp edged Taeapon which is sufficient to cause death in ordinary course of nature. Injury nos. 2 and 3 sre causedby blunt force. AII injuries are ante mortem in nature."

26. The prosecution produced lS,witnesses out of 22 witresses cited by it. The case of the prosecution hinges primarily on the eye-witness testimony of six witnesses, which includes three sons of the deceased being, PW-1 Rizr,van Khan; PW-4 Izaj Mohd. Khan; PW-15 Imran; his SdauShter PW-12 Kiran and widow PW-14 Smt Kamrortissa as well as one stranger PW-17 Gaurav Gupta, who was residing in the areat a chance wibress. The statements of the appellants in Crl.Appeal Nos.B97 e.9A0/20L0 were recorded under the provisions of Section 313 of the Code of Criminal Procedure in which th"y asserted that they have been falsely implicated in the case. These appellants chose to set up a defence and examined ttrree wihresses, DW-L Dinesh Kumar, DW-2 Smt. Suman '' and DW-3 Gulab in their defence.

27. After a careful consideration of the matter, the learned Trial Judge has passed the judgment dated 28tn May, 2010 holding Yadram and Crl.A. Nos.897/2070, 900/2070 & 487/20i_2 ' t8i Babloo gqilty of the offences punishable under Section 302/34 of the Indian Penal Code (IPC) and convicted them of the same. Yadram and Babloo were acquitted for commission of offences punishable under Section g07 / g[4] IPC giving them the benefit of doubt. By the same judgment, Sanjeev @ Sonu and Birender @ Boya have been found guilty for commission of offences punishable under Section 307/ L IPC with which they were charged, while acquitting them of the charge for commission of offences punishable under Section 302/34IPC. The court acquitted Manju of the charges of commission of the offence punishable under Section g02/g07/34IPcfor which she was tried.. The State has not challenged her acquittal or the acquittal of Sanjeev@Sonu and Birender@Boya for commission of offences punishable under Section 302/34 rPC.

28. The appellants Sonu were heard on Yuy, 2010, the.trial Jhem. Conviction of Rajiv @ Raju CrLA. Nos.897/2070, 900/2010 & 487/20j.[2] Yad Rarn, Babloo, Birender @ Boya and Sanjeev @ the point of sentence and by an order dated 3l_'t judge imposed the afore-noticed sentences upon

29. As noted above, by u separate judgment dated 2Tk March,.2012, Rajiv @ Raju has been held guilty for commission of an offence under Section 324/ 34 IPC and by urr order of sentence of the same date, awarded rigorous imprisonment of two years and find of Rs.L,0 00 / -. Challen$e to testimonies - on the ground of confradictions in the statements

30. It is urge dby Ms. Kamna Vohra, learned counsel for the appellants that the prosecution witnesses have contradicted themselves in all material particulars. 31'. Learned counsel for the appellants has pointed out that the oral $stimony of PW[1] Mohd Rizwan contradicts the rukka Exhibit pWI/ A as to the place where it was recorded is concerned. In his deposition in couri he has stated that the police recorded his statement at the spot that is the situs of the incident. However ExhibitPwl/ Ahas recorded that the statement was -record.ed in the hospital. In his further cross. examinatioru'he has stated that the statement was recorded outside the hospital buitding. ), nz We are unable to find any major contradiction between the statement given by'PW 1 and the statement attributed to him as pxnitrit PW1'/ A' Human memory with regard to an incident, especially one Crl.A. Nos.897/2010, 900/20,10 & 4g7/2012 A [' which must have been painful to recollect, suffers from such blurring' F{owever, there is no material contradiction between the statement Exhibit pW[1],/ Amade by PW[1] to the police and his deposition in court.

33. The challenge by Ms.Kamna Vohra, learned counsel for the appellants rests primarily on a close reading and examination of the testimony of the six eye-witnesses. It was urged by learned counsel for the appellants that the deposition of the six eye-wibresses in the instant case suffered from material contradictions and that they were not credible. It is urged that PW-17 Gaurav Gupth is a stock witness and his,,rrary presence at the spot was doubfful, and therefore his deposition with regard to the occurrence ought not to be relied. Learned counsel for the appellants urges that the testimony of eye-wibresses, PW-1, 4,12: 14 and tS woLld be motivated on account of their being close relatives of the deceased. It is urged that their testimony cannot be relied upon without corioboration in material particulars for this reason.

34. So far as the sequence of events is concerned, Exhibit P\,)/1/A which records the statement of Mohd Rizwan Khan as to the efforts to reason with Yad Ram, stands corroborated by the statement of PW12 Kiran; PW 14 Smt. Kamrunisha, widow of the deceased. PW15 Imran, crl.A. Nos.B97/2070, 900/2010 & 487/2012 Poge 18 pf 65 h son of deceased also refers to Mohd Rashid Khan trying to calm down accused Yad Ram. PW 12, 1,[4] and 15 all refer to yad Ram being under the influence of liquor and armed with a rod on the fateful duy. PW 12, 14 and L[5] referred to the exhortation by Manju while PW[1] Mohd Rizwan has made a categorical statement that it was Yad Ram who had called out his brothers-in-laws with the exhortation that it r,rras a good occasion to finish the other side.

35. The learned trial judge has disbelieved the case of the prosecution to the extent of the attribution of the role to Manju of calling her brcithers and exhorting them to kilt. It requires to be borne in mind that the occurrence took place in a crowded locality in the night time. While there were seven or more people from the family of the deceased. and six accused persons all present in the confined space. In the melee which would have ensued, it is reasonably possible to be mistaken about the exhortation. Flowever, in the given facts, nothing much would furn on. the question of who g.ave the exhortation. G[6]. Ms. Kamna Vohra has also emphasised that the post mortem report of deceased Mohd Rashid Khan contradicts the statement of pW[1] _l to thd effect that Yad Ram had given an iron rod blow on the head of the crl.A; Nos.B97/2070, 900/2010 & 4s7/2012 Poge 79 of 66 (u deceased. It is urged that no such injury is reported in ihe post mortem report. 37.. The prosecution has claimed to have effected a seizwe (Exhibit PWg/B) of an ironrod upon the disclosure made by accused Yad Ram. As per P\Al 9-Ct. Virender, the iron rod. was tying inside orr.,oori-, occupied by accused Yad Ram. Be that as it rrrdlr apart from its recovery, the iron rod has not been connected by the prosecution to the injuries suffered by the deceased. pe.rson. The charge against'the appellants ib that in furtherance of their common intention and object,,tn"t committed the murder of Mohd Rashid Khan by causing knife injuries. Even otherwise, there is no reference to an iron rod blow by Yad Ram tb the deceased. If it had been, it is not implausible that the iron rod blow was not sufficient to cause physical injury to the deceased persort or fbr it to have left a mark on his person.

38. The appellants have vehemently challenged the presence of PW[4] - Ijaz Khan. iwe find that it is not disputed thatljazKhan was a son of the deceased Mohd Rashid Khan. His presence in his,urid"r'r.e in the night or the scene of occurrence, given the hour of the night when the incident took place is therefore natural. PW-1 ljaz was also injured in the Crl.A. Nos.897/2010, 900/20L0 & 487/20L[2] Io incident. His MLC and injuries stand proved in the testimony of the doctor. Flowever, even if the contention of learned counsel for the appellants to the effect that his presence at the spot is doubtful was to be accepted, the appellants have not been able to challenge the testimony of PW L, 12 and L[4] who were eye wibresses.

39. In thie regard, the trial judge has carefully noticed that the testimonies of the prosecution witresses with regard to the violence against them is corroborated. by the injuries not only on the person of the deceased but also on PW-L Rizwan Khan, pW-4 Ijaz Mohd. Kharu mentioned in their MLCs exhibit VW:-f 1 A and.[7] /8.

40. It is noteworthy that with regard to the occurrence of.the intervening night of 2s,r. and, z6hFebruary, 2004, the court comrnenced recording of the deposition of pw-i. Rizwan Khan on,2^d May, 2005. " The recording of his evidence did not end that duy. As per the record, on 11ft August, 2005 a tttty six page deposition of PW 1 was recorded. t The testimony of Pw-4 \u" Mohd. Khan was recorded on 12th I daughter of the deceased was Kamrunisha was recorded on. AS JentemUer,2006 and went on till 16tn Jul/, 20.07, that is for almost ten months. The statement of pW-12 Kiraru recorded on 2L't laly, 2006; pW-1,[4] Smt. Crt.A, Nos.8g7/2070, 900/20j.0 U OUr/rOQ /.,r 12.9.2006; PW-15 Imran was recorded on l-3th Septembdr, 2006, more than two years seven months after the incident. 41,. The ability of the human mind to recollect events which have occurred even a few days prior varies from person to person. Passage of time has a definite and sombre effect on memories, especially those recollection whereof would be painful. The date when the occurrence took place is separated from the making of the deposition in the court of law by, not a few days or months, but by over a year. Human mind has a tendency to block out the unpleasant or painful events. It is also to be noted that the instant case is not concerned with one or two eyewitnesses' but involves the testimony of six eye-witresses to the occurrenie, two of whom also received injuries on their person in the a. r.i occurrencE as is supported by the evidence of the doctor at AIIMS and -.'their MLCs. Their testimony relates not only to injuries suffered by them but involves deposing about the traumatic and fatal injury to their father. 'i

42. I\4s.Kamna Vohra, learned carefully through the entire counsel for the appellants has taken us deposition of the eye-wibresses. Inconsisterrcies and contradictions pointed out by learned counsel for Crl.A. Nos.897/2070, 900/2010 & 487/201"2 K the'appellant in the testimonies of the eye wifilesses are natural and would. happen if different persons are asked to describe the same incident after passage of any length of time. The important aspect of the matter is that all the eye witnesses were categorical on Yad Ram holding the deceased while Babloo stabbed him. The injured persons also categorically named their assailants. 43: It is trite that contradictions in matters of detail does not impact the truthfuhress of the witnesses. In the instant case, in our view, apart from minor matters of detail, Ms.Kamna Vohra, learned counsel for the,I appellants could not point out any contradictions in material particulars. The evidence of the witnesses stand corroborated in material particulars and it is not possible to hold that contradictions go to the very basis of the prosecution case in the instant case. I

44. On the issue of contradictions in the deposition of wibresses, reference can usefully be made to the decision of the Supreme Court in the AIR 1986 SC Luxman Kumar vs, State. The court has observed as follows:- '43. xxx It is common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at crt.A. Nos,897/2070, 900/2070 & 487/2072 variance to a considerable extent. Ordinarily, if several ' Personsgivethesameaccountofanevent,evenwith,'referencecominordetails,theevidenceisbrandedas Parrotlikeandisconsideredtobetheoutcomeof tutoring.Havingread'theevidenceofthesewibresses withgreatcare|wealeofthgviewthattheSamehasthe touch of intrinsic truth and the variations are within reasonable limits and the variations instead of providing thegrgundforrejection,addtothequahtyofbeingnea"I to truth." It has been held that identical testimonies without any kind of contrad.ictions may render them suspect sometimes'

45. In the jud.gment of the supreme court reported at' AIR 1'973 SC 262 shiaaji sahabrao Bobade I Ant. vs. state of Maharashtra' fustice v'R',Q){'rirfrha lyermade the following observations on evaluation of evidence of a witress which may not be found. to be completely credible:-,,Wemustobservethatevenifawitnessisnot reliable, he need not be false and even if the Police have trumped uP one wibress or two or has embrOidur"d the siory to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the u..orld... Certainly, it is a primary principle that the accused. must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions'" Crt.A. Nos.897/20L0, 900/2010 & 487/2012 Poge 24 of 66 u' (4

46. These very observations apply to the present case as well, though no improvements in deposition have been pointed out to us. We hold that the defence has not been able to shake the testimony of these wifiresses in their cross-examination and that the testimonies stand corroborated in all material particulars.

47. Learned counsel for the appellant has also vehemently assailed the -_ testimony of the wibresses on the ground that they are "all family members of deceased Mohd Rashid Khan. It is urged that for this reason, their testimony needs to be closely scrutinised and in fact, given the nature of contradictions, deserves to be discarded. I

48. So far as some of the eye-witnesses being close relatives of the deceased person'is concerned, there is no absolute proposition that, related witresses must be disbelieved.

49. Ms. Ritu Gaaba,learned APP has drawn our attention to the pronouncement of the Supreme Court In (20L0) 3 SCC (Cri) 2ll Balaraje alias Trimbak os. State of Maharashtra and (2009) 3 SCC Gri) 1254 )Hqri us State of Maharashtra. In paras 29 to 3l-, the court dealt with a similar objection taken by the appellants against the prosecution. In this case, the court found that the evidence of the PWs 1 and 2 - who were Crl.A. Nos.B97/2070, 900/2010 & 487/2012 Poge 25 of 66 (4 sons of the deceased and eve-witnesses to the incident as that of PW 8 (rttfu of PW 1) was consistenf categorical and unfolded the prosecution version. Their presence at the place of occurrence, which was within their house, was natural. After exercising due care and caution, considering the fact that they were related witnesses their evidence was found acceptable.

50. On the issue of wifiresses who are related, reference may usefully be,made to the judicial pronouncement authored by Vivian Bose, J reported atAIR 1953 SC 364Dalip Singhas. State of Punjab (atpara26 at pg 366) wherein the court had observed as follows:- - tt26....Ordinarilp a close relation would be the last to screen the real culprit and falsely implicate an irurocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has d grudge along with the guilty, b.ot foundation must be iaid for such a criticism and 'the mere fact of, relationship far from being a foundation is often a sure guarantee of truth. Frowever, we are not attempting any.. sweeping generalisation. Each case must be judged on its own facts. our observations. are only *idu to combat what is so often put forward in cases before us, as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." crl.A. Nos.897/2070, 900/2010 & 487/2012 [^, This pronouncement was reiterated n (1974) 3 SCC 698: L974 SCC (Cri) 222 GuIi Chanil as. State of Raiasthan.

51. The Constitution Bench pronouncement of the Supreme Court in AIR L965 SC 202 Masalti as. State of U.P. approved the decision in Dalip Singfi (supra) observing as follows:- "14....But it would, we think, be unreasonable to contend that evidence given by wibresses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enougtL where. factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a pattisan type. The mechanical rejection of such evidence on the sole. ground that it is partisan would invariably lead to as to how much evidence should be appreciated. Judicial approaclr has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." -.52. So far as an incident which has occurred inside a dwelling house is concerned, in Qggg) 3 SCC 507: lggg SCC (Cri) 436 State of Rajasthan as. Teja Ram, Thomas, J speaking.for the Bench observed that "ouer;.nsistence on witnesses haaing no relation with the aictim znill result in the criminal justice system going au.t)ry". In para 20 at page 51-3, the court observed that " in such an incident, the inost natural witnesses zuould be the Crl.A. Nos.B97/2070, 900/1010 & 487/2012 inmates of the house and in such a situation "it is unpragmatic to ignore:such natural witnesses and'insist on outsiders who would not haae euen seen ' 't, anything".. The learned ]udge further clarified; "The prosecution cnnbe expected to examine only those who haae witnessed the eaents and not those: who haae not seen it though the neighborhood may be replete zuith other residents also."

53. Dalip Singh (supra)was extracted again in the judgment reported et (2007) 1 SCC 699: (2007) 1' SCC (Cri) 425 Salim Sahab as State of M.P. and in (2005) 1"5 SCC 65: AIR 2009 SC L57 But Singh us State of Puniab (pxa[7]). It needs no'elaboration therefore, that with regard to an occurrence inside a dwelling house, relatives may be the only witresses.

54. So far as the contention that the relatives in the present case would be partisan and biased, because of their antagonism against Manju and her doings/ we find that in (20L0) 3 SCC (Cri) 21L Balraje alias Trimbak as. State of Mahayashtra (supra), on a similar objection the court in para 30 has stated as fol'lows:- "30...........it would not be proper to conclude that they would ghield the real culprit and rope in innocent persons. The tnl,th or otherwise of the evidence has to be weighed pragmafically. The Court would be required to analy.se the Crt.A. Nos.897/20L0, 900/20L0 & 457/2012 i j' 4\ evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and Jcrutiny of their evidence, the version given by the witrresses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence." aspect was also considered by the Supreme Court in the judgment reported at (2009) 3 SCC (Cri) 1254 Hari as State "f Maharaihtra. The court held that relationship by itself cannot be a _ ground to discard their evidence. In this case, the evidence of the eye witnesses who were sons and wife of the deceased was found. consistent. On the aspect of eye witnesses who was alleged to be interested and ' -imically disposed towards the accused. The relevant portion of the judgment is reprod.uced hereund.er:- "2/1. On the question of appreciating the evidence of witresses, who are related, this court in Dalip Singh as. State of Punjab,.AIR 1953 SC 364 spoke very eloquently through Vivian Bose, I. In that case the learned Judge clearly laid down the law relating to appreciation of evidence by relations'with such lucidity that it deserves to be quoted:t '26.... Ordinarily a close relation would be the last to.screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there-is personal cause for e.nmity, that there is. a tendency to drag in an innocent person against whonr a witness has a grudge along with the guilty, but foundation must be laidfot ro& a criticism and the mere fact of relationship f.ar from being, a CrLA. Nosf97/2070, 900/20L0 & 487/2012 Poge 29 of 66

55. This 4u foundation is often a sule guarantee of truth. Flowever, we are not attempting any sweeping generalisation. Each case must be judged on its own iacts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of piodence. There is no such g.eneral ' ' iule. Each.us" trrort be limited to and be governed by its own facts." t The principle laid down in the aforesaid passage has been subsequently. reiterated by this Court in Gulli Chand tts. State -of Raiasthan, (1974) 3 SCC 698. Beg, I', as.His Lords.hip then W?s, quoted the said Passage in para 11 of the said report.,

25. The said principle was also followed by e Constitution Bench of this Court tnMasaltios. State of U.P, /IR 1965 SC

202. The Constitution Bench speaking though Gajendragadkar, C.1., approved the decision in Dalip singh (Supra) and held as under: "-J.4.... But it wou1d, we think, be unreasbnable ' to contend that evidence given by wifiresses should be d.iscarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground t\at it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." Crl.A. Nos.897/2070, 900/20L0 & 487/2012 Pqge 30 of 66

56. The record of the case also shows that the testimony of the only eye wihress to the incident who is not related to the injured stands corroborated. by the statement of PW-1 Rizwan Khan (exhibit PW-1'/ A), which was recorded by the police res'ulting in the registration of the FIR. The learned Trial Judge also found that there was no material', contradiction or deviation in his testimony on oath in court from the -contents of the exhibit PW-1"/ A. Learned counsel for the appellants was unable to point out any contradiction in his statements even before us. The trial court has also found. that all the witnesses w6re honest and truth-ful.and their testimonies stand'corroborated not only by the contents of exhibit (pW-l/A) but by the unshaken deposition of PW-17 Gaurav Gupta who was also residing in the area' ST. In the instant case, two of the related eye witnesses have suffered' injuries as well. The principles.laid down in these judicial precedents squarely apply to the present case. Therefore, the objection to the testimony of the $ons, widow and daughter of the deceased is of,ro t"gut.,significance given the clear deposition by these witresses as to the manner in which the events unfolded themselves and the occurrence which took place. Crt.A. Nos.897/2070, 900/2010 & 487/2012 q to

58. The objection on behalf of the appellants resting on relationship the deceased thus is untenable and hereby rejected' Failure to exPlain iniuries on accused Person

59. Ms.Kamna Vohra, learned counsel for the appellants has 'urged this court to disbelieve the prosecution also for the reason that Yadram had suffered serious injuries on his head and that the prosecution had withheld the MLC of Yadram deliberately and with mala fide intenlion.

60. It is also urged that in the light of the omission of the prosecution to explain the injuries on accused Yad Ram, the case against Yad Ram has failed. The prosecution deserves to be completely disbelieved. This submission is vehement$ opposed by Ms. Ritu Garfua, learned APP who has submitted that in the instant case, the failure to explain the injuries on the accused would be inconsequential., \,Ve find that no plea of self-defence has been set up by *y of the appellants. It is also not the case of the appellants that they were beaten by the other parry. 61". On the contrary, the appellants have disputed their very presence on the spot. An examination of the defence set. up by the actused persons would show that Yadram set up a plea that he was working in Crl.A. Nos.897/2070, 900/2010 & 487/2012. Poge 32 of 66 4{ the flower shop of DW-1 Dinesh Kumar and DW-3 Gulab on the fateful: night and that he had left their shop only in the midnight of 25ft June, 2004and was therefore not present at the alleged place of incident.

62. The accused persons denied all allegations made against them in their statements under Section 313 of the CrPC and have stated that they havebeen falsely implicated. This being the positiory it would be for the _. appellants to further suggest to the court and explain the circumstances,i in which the injuries were received by Yadram and to satisfy it that'such injuries, had resulted on his person during the occurrence in the jntervening night of. 25n and.Z6hFebruary,2004. o

63. It is also important to note that Yadram was not arrested at the;.., gpot immediately after the occurrence but ran away from there. The appellant, "Yadram, has been arrested on 26h February, 2004, the day lollowing the o..Lrrur-,.".

64. We find ttlat this issue was also considered by the Supreme Court n (2009) 111. S'CC 96 Hari as. State of Maharashtra, Here alsp the Qrosecution hacl'failed to explain the injuries on the accused. The Supreme Court held that there is no general or absolute. principle that non-explanation of an injury on an accused person shall in all casbs Crl.A. Nos.B97/2070, 900/2010 & 487/2012 Poge 33 of 66 1t vitiate the prosecution case and that it would depend on the facts and circumstances of this case. The prior adjudication in (1"976) 4 SCC 394: ' 1976 SCC (Cri) 671- Lakshmi Singh us. State of Bihar and Q975) 2 SCC 7: i.g75 SCCD (Cri) 384 State of Gujarat as Bai Fatima wasreiterated by the Supreme Court rnHari as. State of Maharashtra (surpa).

65. We may usefully reproduce the following principles laid down by the Supreme Court on t his aspect in para 17 of (1975) 2 SCC 7:7975 SCC '(Cri) 384 State of Gujarat as Bai Fatima-. '17. In a situation like this when the prosecution fails to explain the injuries on the Person of an accused, depending on the facts of each case, any of the three results may follow: (1).That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right: of self- defenc'e. (2) It makes the prosecution version of the occurrence: 'doubfful and the charge against the accused cannot be held to have been proved beyond reasonable doubt (3) It does nbt affect the prosecution case at aIL."

66. hr the instant case, the appellants had set up a plea of alibi which has been disbelieved. The appellants also led evidence in support of this plea before the trial court but failed to prove the same. Therefore, in case the defence of the appellants was accepted, Yad. Ram could not Crt.A. Nos.897/20LO, gO0/2070 & 487/20L[2] /Y\ have been injured in.the incident as he has claimed that he was not there. Nothing turns in the instant case on the failure of the prosecutioir to prove the MLC of Yad Ram. It would be for Yad Ram to prove when the injuries were received by him as they surface only after his arrest, which was long after the incident. ' 67. Given the defence set up by Yadram, the chall"ng: raised by him on the failure of the police to prove his MLC on record or explain his injuries is devoid of any legal merit. Effect of acquittal.of a co-accused

68. Ms. Kamna Vohra has also urged that Manju was a co-accused and lacing the same charge. In the face of her acquittal, the conviction. against the other persons cannot be sustained. It is submitted that the case of the prosebution against the appellants is based on the same evidence as was placed against Manju, such evidence having been disbelieved qua Manju, it is contended cannot be therefore believed so far as the appellants are concerned. J)e' In this regard., in para 29 of Balraje alias Trimbak (supra) the court held as follows:- "2g. Law is fairly well settled that even if acquittal is recorded in respect of the.co-accused on the ground "r Crl.A. Nos.897/20L0, 900/2010 & 487/20L[2] that there were exaggerations and embellishments; yet,, conviction can be recorded if the evidence is found' cogenf credible and truthful in respect of another accused."

70. The trial court has carefully analysed the evidence placed on record. so far as the allegations against Manju, who was a co-accused, is concerned. It was found that PW-4I1az-an injured eye-witness; PW-L[2] Kiran (daughter of the deceased) and PW-'1,[4] Smt.Kamrunisa, widow of - the deceased as well as PW-15 Imran, son of the deceased have deposed on oath that it was the co-accused Manju who had called her four brothers, Surinder @ Babloo, Rajiv @ Raju, Sanjeey @ Sonu, Birender @ oya to the spot. As against their depositiorv their brother PW-1 Rizwan Khan also an,eye witness made a statement (exhibit PW-l'/A ), which' was the first statement in time, that it was the accused Yadram who had called his four brothers-in-Iaw to the spot and exhorted them against the deceased Mohd. Rashid Khan. Other than this, there is nothing in the testimony of PW-1, 4,12 and L[4] that Manju had exhorted her brothers to /f kill the deceased Mohd. Rashid Khan. O.ly PW-15 Imran has made the Cn"gutions in this regard against the accused Manju. PW-14 Smt.Kamrunisa has alleged that Manju had got hold of her daughter, Crl.A. Nos.897/20L0, 900/2010 & 487/2012 ' Kiran (PW-12), by beatings to her. I her hair and thrown her on the ground, giving; normal place of their residence was held that in case they werq Page SZ o[7] Se 71,. The learned, trial judge has thus held that the prosecution had failed to prove the requisite intention on the paft of the accused Manju to cause the death of the deceased Mohd. Rashid Khan as also of ' inflicting of injuries upon thg rnjured PW-1 and 4. The trial court also held that the prosecution was unable to prove the case against Manju:' bevond reasonable doubt In view of the above, Manju was acquitted of the charge commission of offences punishabte under Seciion 302/307/34 IPC whi'ch she was charged. Flowever, all the eye wifiresses have categorically named the appellants as present at the tpol. Specific roles' in the incident are also assigned to them. Therefore, the acquittal of Manju would by itself not impact the case against the other appellants., The evidence against them has to be separately considered. Abscondance for of J[2] The learned trial court has also noticed the conduct of the accused persons in not being found at the immediately after the incident. It crl.A, Nos.897/2070, 900/2010 & 487/20L[2] I Qe.[1] lnnocent/ tnere was for a long period of instant case on 20u' r.[1] been arresteq. no warrant for them to run away from their houses almost four months and having surrendered in the and 24h June, 2004 respectively or when they have Whether the prosecution has established common intention (Section 34 of the IPC) to commit an offence of murder (Section 302 IPC) 7g. It is now necessary to examine the primary contention of learned -- counsel for the appellants. Ms.Vohra has urged that Yad Ram and Babloo have been found guilty of commission of the offence under Section 902/34 of the IPC and have been acquitted for offences under \ ection 307/34 of the IPC while Sanjeev @ Sonu and Birender @ Boya found guilty of comrnission of the offence punishable under Section. 307/34 IPC with which th"y stand charged and acquitted for commission of offences punishable under Section 302/34 of the IPC.

74. Ms.Kamna Vohra, learned counsel for the appellants has vehemently contended that even rt this Court was' to accept the i correctress of the evidence in its totality, the prosecution had failed to prove that the accusgd persons had the cornmo.n intention of murcl.ering and causing death of Mohd. Rashid Khan. it is further specifically submitted bv Ms.Kamna Vohra, learned counsel that there is no... evid.ence at all of any common intention between Yad.ram and Babloo commit an offence under Section 302 of the IPC. Learned counsel urges that the prosecution has in fact made allegations of common intention against six persons.

75. On this, we.find that this material aspect of the matter has completely escaped attention of the learned Trial judge and has not been ^ considered. in the impugned, iud,gment.

76. Ms. Kamna Vohra has also relied.on 49 pronouncement of the Supreme Court reported at AIR 2000 SC 1,876 Masumsha Hasanashn Musalman 7)s. State of Maharashtra; Q000) 10 SCC 307 Kunhayippu as. Stqte of Kerala in,which it was held that the accused cannot be said to have had the necessery intention of causing murder of the deceased while giving a particular blow though ultimately the blow had become - -fatal. Ms. Vohra has also placed reliance on (1998) I SCC 497 Ram Prakash Singh zts. State of Bihar and AIR L994 SC 1"060 Raniitsinh Chandrasinh Atoda.ria as. State of Guiarat. J[7]. Ms. Vohra, learned counsel points out that even PW 1 - Rizwan Khan states that at about 11.15 P.ffi., a drunken Yad Ram, who was..a. 1 1 r carrying an iron rod, came to the spot shouting abuses to his sister and Crl.A. Nos,897/2070, 900/2010 & 487/20L[2] Page 39 of'66 4\ to 61/ making false allegations against her. Hearing these abuses, th"y came' out and his father Mohd Rashid Khad asked Yad Ram as to why he was' abusing at this time of the night. Despite the admonition by his father, Yad Ram continued with the same. Mohd Rashid Khan (who was Iiving on the first floor), came down from the first floor with his family. As soon as Mohd Rashid Khan reached down) Yad Ram hit him on the head with the iron rod. He then exhorted his four brothers-in-law that "aaj mauka achclmhai, aaj saale ko khatam kar do." Babloo, Sonu, Rajiv and Boya came cairylng knives. While Yad Ram held Md. Rashid Khan from the back and Babloo attacked him on the neck; Sonu allegedly attacked Mohd Rizwan and his hand got injured; Rajiv and Boya; attacked Izal #hile Manju who was standing there took his sister by hel hair and threr,lr her on the ground. Mohd Rashed Khan started bleeding from the injuiy on his neck and he fell over on the cycles which were standing theie. At that trme, a lot of neighbours gathered there and seeing the crtlwd, the accused persons lan away from there. 78: The pronouncement of the Supreme Court in Ranjitsinh (Supra) is similar on facts to the instant case where three of the accused were alleged to have caught hold of the deceased. while the fourth accused is Crl..A. Nos.B97/20J0, 900/2010 & 487/2072 €9 stated to have inflicted a knife blow on the deceased. It was stated that the whole incident took place because of a quarrel that preceded it. The, dispute was regarding a house which has been.under the occupation of the brothers sometime or the other. Under the circumstanceq the court observed that it was difficult to hold that the accused intended to cause that particular irj*y which was found to be sufficient in the ordinary._ course of nature to cause death by the doctor. The court accordingly set aside the conviction of the appellant under Section 302 IPC and the ' sentence of imprisonment for life awarded thereunder. 'Instead, the appellant was convicted.under Section 304 Part II of the IPC and sentenced to undergo ten years rigorous imprisonment. '7g. Our attention has alsp been d.rawn to the Division Bench pronouncemerit reported at 23 (1983) DLT 338 Paramiit Singh €t Ann Vs. The State wherein A and B were charged with murder under Section

302. As per ttfe prosecution case, B was alleged to have only exhorted A "to teach less6n" to deceased. The injury was,caused by A resulting in Jhe death of a person. The court considered the issue as to whether there was any common intention and held that " teaching of lesson does not spell out aiy intention to cause death or to kiII. Teaching of le,sson could be confned Crl.A. Nos.897/2010, 900/201-0 & 487/2072 ' 4\ only to causing of simple hurt, It was by chance that the appellants met the deceased, There was, therefore no pre-arranged plan on their part. The mere fact that one of the appellant caught hold of the deceased would not make him guilty of murder, when he did not know that the other had a knife with him. He could only be conuicted of causing simple hurt under 5.323." On the issue as to whether the acts were done with the intention of causing d.eath in paras 18 and L[9], the following observations of the court may usefully be adverted to in'extenso and read as follows:- ' '18.'Ho*"ner/ we have to see if there was any conunon ' irrt"ntion on the part of the appellants and whether the.prbvisions of Section 34 IPC are applicpble or not.'So: that there should be a common intention there must be meeting of minds to commit a particular offence. The common intention pre-supposes prior concert. There ' should be some pre-arranged plan, even though the said plan is formed hastily or all of a sudden. In the prdsent case, as it appears from the evidence of prosecution, the intention of the appellants was to teach: a lesson to Hardev Singh and Anil on account of the. latter having indulged in sharp practice in gamblit g. Teaching of lesson does not spell out any intention to caiise death or kill. Teaching of lesson could be coirfined only to causing of simple hurt. It was by chance that the appellants happened to meet Hardev Singh. There was/ therefore, flo prearranged plan on their part. Surinder Singh did catch hold of Hardev Srqrgh from behind but it cannot be said that he knew. that Paramjit Singh would give knife stabs. Paramjit Singh was not carrying open knife. He took out the knife from his pocket. Therefore, Surinder Singh could Crl.A. Nos.897/2070, 900/2010 & 487/20L[2] 4( not imagine that Paramjit Singh would iake out the knife. It was.only one blow which was given. Had repeated blows by knife been inflicted it could be said. that although surinder singh did not have any meeting I of mind with Paramjit singh for causi.g *jories by ' knife, yet plan or meeting of mind between him and Paramjit singh was formed at the spot and then there, could be existence of common intention. But there could be no such formation of plan with single injury gnly. under these circumstances surinder singh is guilty of causing simple hurt punishable under Section 323 readwith Section 34IPC.

19. The definition.of 'murder' is given in section 300 IPC. That definition, inter alta, says that culpable homicide is murder if the act by which the death is caused is done with the intention of causing d.eath. According to the learned Additional Sessions Judge,. Delhi there was an intention on the part of the appellants to kill Hardev Singh. We have already held that there is no indication of existence of such an intention. Therefore, it is to be seen if any of the other parts of definition of 'murder' can be applicable. Clause '3rdly' of the said definition says that culpable homicide is murder if the act by which the death is caused, is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In Virsa Singh a. Tlrc State of Pr.tnjab: 195,8Cri Ll 818 the following was held by the Supreme Court while interpreting clause '3rdly' of Section 300 IPC: "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300. "3rdly"; First, it must establish, quite objectively, that a bodily tnjrry is presen! Crl.A. Nos.897/2010, 900/2010 & 487/2012 Poge 43 of 66 4( Secondly, the nature of the injury must be proved; These are PurelY objective investigations. Thirdly, it must be proved that there was an intention to inflict thit particular bodily injury, that is to. say, that it was not accidental or unintentional, or that some other kind of injury. was intended. Once these three elements are proved to be persent, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the.three: elements set out above is su-fficient to cause death in the ordinary course of nature. This paft of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender Once these four elements are established by the prosecution (and of course, the burden is on the prosecution tlroughout) the offence is murder: unaer Section 300, 3rd1y. It does not matter that therei was on intention to cause death. It does not matter that there was on intention even to cause an injury of a kind that is sufficient to / cause death in the ordinary course of nature not that there is any real distinction between the 'two)." (f

80. Learned counsel for thb appellants has also placed reliance on the pronouncement of the Supreme Court reported at 2006 (2) ICC 775 Rajpat 8 Ors. 'Vs. State of Haryana wherein it was observed that the;i, accused persons did not repeat the blows on the head of the deceased Crl.A. Nos,897/2070, 900/2010 & 457/2012 which showed that there was no intention to commit murder. In this case the supreme Court changed the conviction of the appellant from the conviction under Section 301'/34 to 304 Part II. The pronouncement deals at length with the distinction between "muldef" artd "culpable homicide not amQunting to mur der"

81. On the same asPect our attention has been drawn to the -_ pronouncement of the Supreme Court reported at Q006) 2 SCC Grl.) 394,'Sanilhya f ailhaa as. State of Maharashtra. In this case the court 'explained the conditions for applicability of section 300 Exception 4 of the IPC. The court laid down the circumstances which are necessary to be satisfied for invocation of the Exception 4 and held as follows:ttl

300 IPC, it has to be established that the act was. committed without premeditation, in a sudden fight in: the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manrter.

9. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exceptiory after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception L there is total deprivation of self-control, in case of Exception 4, there ' is only that heat of passion which clouds men's sober Crl.A. Nos.897/2070, 900/201.0 & 487/20L[2] & reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception '1,; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases ifl which notwithstanding that a blow' may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrdl may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual piorrocution and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception L. There is no previous deliberation oI determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that ' one of them starts 7t, but if the other had not aggravated it by his own conduct it would not have, tulien the serious turn it did. There is then mutual provocation and aggravationu and it is difficult to apportion the share of blame which attaches to each fig,hter. The help of Exception 4 can be invoked if death ' is caused (u) without premeditation, (b) in a sudden fighg (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and.

(d) the fight must have been with the person ki|led. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for ttre passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the begiruring. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any Crt.A. Nos.897/2070, 900/2010 & 487/2012 general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel ip sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the. provision means 'urrfair advarrtage'-"

82. On the same aspect learned counsel has placed the pronounc'ement ^ of the Division'Bench of this court reported at 123 (2005) DLT 487 SubhashKumar'as. State of NCT of Delhibefore this court.:,

83. We may caution that the plea that because only a single blow was iven has to lead to only one conclusion that the case falls under the Exception 4 to Gection 300, is not an absolutb proposition of law and,[9] must be tested in the facts and circumstances of each case.

84. On the isdire of whether there existed common intention to do'the alleged acts in the instant case, learned counsel for the appellants has relied on 89 (2001.) DI-f %7 Raj Kumar os. State wherein the ovett act I athibuted to appellant was that he caught hold of the arms of Tara Chand and Sunil, the deceased. It was alleged that Dharamvir stabbed Sunil and there was nothing to show that the appellant had known that DharAmvir was carrying a knife. The exhortation was only to teach him Crl.A. NosB97/20L0,900/20L0 & 457/2072 0p a less'on and not to kill him. In this background, it was held that the, conviction of the appellant under Section 302/34IPC could not be sustained.

85. It is pointed out that the occurrence, as portrayed by the ' prosecutior;.was a sudden occurrence on the sPur of the inoment without any pre-meditation and without any common intention. It is _ grged that Yadram did not even know whether any of his brothers-inlaw would come, or, that any of them would.be, armed. He had no knowledge that they were bringing knives with them. It is urged that the brothers-in-Iaw came from a different direction. There is no evidence that other than Yad Ram, the appellants had knowledge of the presence of the deceased at that p1ace. The post mortem report shows that a single blow to the deceased Mohd. Rashid Khan resulted in his death. The prosecution has alleged that the appellant Babloo inflicted this,fatal injury.

86. Learned counsel contends that the prosecution wifiresses have rttributed exhortation to Manju; that as per the exhortation atkibuted to her, she only called out to her brothers and did not say that they should kill the appellant. Learned'counsel points out that as against this the Crt.A. Nos.89ZlZOtO, gOO/2070 & 457/2012 a\ star witness of the prosecution PW 1 - Rizwan Khan has deposed that it was Yadram who has given the exhortation to his brothers-in-law to kill Mohd. Rashid Khan, that there was no exhortation to any particular person and that the exhortation did not refer to Babloo in particular to kill the deceased. The four brothers (including Babloo) came from the other house and did not even know who was the object of the exhortation. In this background, learned counsel has urged that."there was no evidence at all to show that either Yadram or Babloo or anv of J the other appellants had intended to inflict a particular injury which resulted in his death or to kill Mohd. Rashid Khan. It is urged by learned counsel that there is no evidence at all that the appellants have acted in furthercu:rce of a common intention of all of them.

87. So f.at as Yad Ram is concerned, Ms. Kamna Vohra, learned counsel for the appellant has submitted that the role ascribed to him was exhortation of the co-accused and holding the deceased. In the pronouncement of the Supreme Court 122 Q005) DLT 399 Laxman us. (jtott, it is urged that other thal using the exhorting words "maar saale ko" and catching the deceased from behind, no other role was ascribed in Crl.A. Nos.B97/2070, 900/2010 & 487/2012 4u the evidence against Shyam while the fatal blow was alleged to have been given by Laxman.

88. Learned counsel has drawn our attention to a decision dated. 15th f anuar!,201,0of the Division Bench of this court rn Cil.App.No.3042005 ChhoteLalas. State anit CrI.App.No.578/2005 B.hurey Lalas' State' The court observed. that the appellants had a chance to inflict much more than one injury but were satisfied by causing a single injury. Placing reliance on the pronouncement of the Supreme Court, reported at 1984 SC 7Sg Tholan as. State of Tamil Nadu and 1982 SC 1466 Gurmail Singlt t Ors as. State of Punjab, rtwas observed that there was only a.single rnjury and the incident happened on the spur of the moment. In this background, the conviction under Section 302 IPC was altered to one under Section 304 Part II of the Indian Penal Code. 'Bg. It is asserted by Ms. Vohra that even the exhortation attributed to Yad Ram does not exhort to kill but refers only to "maar" which when translated reads "bea{'. From the facts on record in the present case as well it could not be said that there was prior meeting of mind r preconcert and pre-determination to murder the deceased. Crl"A. Nos.897/2010,,900/2010 & 487/2012 ae

90. In this regard., reference can also be made to the pronouncement of the Supreme\ Court rdported at (1998) 7 SCC 21'6 Matadin I Anr, Vs, State of Mah1rashtra wherein also the allegation that Matadin had exhorted his fellows by sayi ng"mAaro saale ko" whereafter other accused stabbed the deceased resulting in his death. Here conviction of Matadin under Section \02/34IPC was varied to a conviction'under Section ^324/g4of the IPC and his sentence was reduced to imprisonment for the period already undergone by him. 91.. In the case reported at L999 SCC (Cri) 74, Ajay Sharma as. Siate of Rajasthan, the expression used by one of the accused was'maaro'. On, the said facts, the Supreme Court held that by saying 'maaro',-it cairnot be said that cornmon intention to. kill the deceased and since the appellant only said 'maaro'which did not mean to kilI, therefore he ought not to have been convicted under section 302 read with section 34 IPC and was accordingly convicted under section 324 read with Section 34IPC and sentenced to the period already undergone. e92. Yad Ram and Babloo have been convicted for commission of examining the offence punishable under Section 302/34 IPC. Before factual matrix which has been established by the prosecution before us, Crl.A. Nos.897/2070, 900/20L0 & 487/2012 Poge 57 of 56 A\ the criti.ul'qourtion which has to be answered' is as to whether the conviction of these appellants under section 302 of the Indian Penal Code is contrary to law or whether they could, at the most' have been held guilty for culpable homicide not amounting to murder' In this regard.,we may usefully refer to the authoritative pronoirncement of the Supreme Court in the judgment reported' at (2005) Narayan Bhadolk&r as. state of Maharashtra wherein the binding principles which would guide consideration authoritatively laid down' The discussion Supreme Court deserve to be considered -) follows:on this issue have been and the findings of the in extenso and reads as,,vL. Tne acad.emic distinction between "murder" and ',culpablehomicidenotamountingtomurder''has ulwuys vexed the Courts. The confusion is caused, if " Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections,.allow themselves to be drawn into minute abstractions' The safest way of approach to the interpretation and application of thet" ptonisions seems to be to keep in 'fo...,r the keywords used in the various clauses of sections 299 artd,300. The following comparative table will be helpful in appreciating the.points of distinction between the two offences. CIt.A. Nos.8g7/2070, 900/201'0 & 487/2012 ^{ Section 299 A persor commits orlphUtehomiciOe i f the act by uf,ti dr the death i s causedis done- INTENTION (a) with the irfenilon of causing death; or car:sing death; or ft) with the intention of causing zuctr bodily injuryas is likely to cause death; or

(c) with the knowledge that lhe act is lila,ly to cause death.

Section300 Strbj ect to ceriain a<ceptions crrlpable homicide is nanrder i f the act by uttidt the death i s caused is dore- (1) with the intention of (2) with the intet, lion of car,rsing zudr b odily injury as the o ffeoder larorps to b e likdy to cause the death of theperson io wtrom the harm is caused; or (3) Wirh the irtenlion of causing bodily i4iuryto ary p erson and the b o dily injwy inEnded to beinflicted is sufflcient. in lhe rdinary course of nalirre to ause death; or (4) with the knwledge ttet theact is so imminerdly dargerous tlat it rrurst in all probability cause death or zudr bodily injury as is likdy to cause death, and witroutany erause frr inarrring the ri slr of causing dedh r sudrinjuryas is mmtioned above

25. Clause (b) of Section2gg conesponds with Clause (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fataI, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention tg cause death" is not an essential requirement of Clausei (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the partitular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) ip borne out by illustration (b) appended to Secdqrn 300. crl.A. Nos.B[9].7/2070, 9q0/2010 & 487/2012 4("

26. Clause (b) of Sectior-zgg does not postulate any suc.h knowledge on the part of the offender. Lrstetnces of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a first blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and sqch blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the a'ssailant had no such knowledge about the disease or special, frailty of the victim, nor an intentiolr to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding Clause (b) of Sectron299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distirlction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary couise of nature to cause death. The distinction is fine but'ieal and if overlooked, may result in miscarriage'of justice. The difference between Clause (bt of section 299 and Clause (3) of section 300 is one of the degiees of probabitity of death resulting from the interided bodity injury. To put it more broacily, it is the de$ee of probability of death which determines whether a culpable homicide is of the graves! medium or the lowest degree. The word 'likely' in Clause (b) of, Section2gg conveys the sense of probable ' as distinguished from a mere possibility. The words "bodily injury.......... sufficient in the ordinary coursei of na'Lurfe to cause death" mean that death wilr be the "most probable" result of the injury, having regard to the ordinary course of nature. Crl,A. Nos.B97/207C, 900/2010 & 487/2012 t A

27. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so rong as the death ensues from the intentional bodily injury or -juries sufficient to cause death in the ordinary-.oorr. of nature. Rajwant and Aff. v. state of Keiala, AIR, 1Se0 SC1874is an apt illustration of this point.,,

93. The Supreme Court thereafter discussed the principles laid down by Vivian Bose, l. in the well known prior pronouncement reported at 1958 sc 465, virsa singh as. state of punjab in para29 thus:-

29. The ingredients of clause "Thirdly" of section300, IPC were brought out by the ilustrious Judge in his terse language as follorvs: "12. To put it shortly, the prosecution must prove the following facts before it can bring i.are under Section 300, "thirdly". First, it'must establish, quite objectively, that a bodily itrjrry is present. Secondly, the nature of the injury must,be lt"": These are purely objective investigations., F*dLy, it must be proved that there was an rptention to inflict that particular bodily injury,. Fut is to say that it was not accidentar or rinintentional, of that some other kind of injury, ' *as intended. once these three elements are proved to be present, the enquiry proceeds i-urther and" Fourthly, it must be proved that the injury of the fype just described made up of the, three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the frl.A. Nos.897/20i.0, 900/2010 & 487/2012 eage is.,of oa N enquiry is purely objective and inferential and' has nothing to do with the intention of the offender." t:

94. Lr para 30, the Supreme Court has also reiterated the explanation of Vivian Bose, I. in paTa'1"6 of Virsa Singh (Supra) in the following terms:-

31, the Supreme Court finally thereafter culled out the I

95. In para following applicable principles:- Crl.A. Nos.897/2070, gO0/2010 & 487/2012 M "31-. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa ' Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both ' the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing'a bodily injwy; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It, must be proved that there was all intention to inflict that particular bodily i.j*y which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the

96. The above principles have been reiterate dbythe Supreme Court in ' the subsequent pronouncement reporte d at (2007)gsccL2g,Abbas AIi as. State of Rajasthan. 97' In the instant case, it is the case of the prosecutiop that it was yad Sum alone who was abusing the daughter of the deceased and that the other appellants were called from their residence. There remains an area, 'of doubt even,as to who exhorted or whether there was exhortation. l' While Manju was charged with exhortatioru she has been acquitted of ' 'charge' There remains the testimony of PW '1, who attributes the: exhortation to'Yad Ram. As noted above, the exhortation was made g'enerally and not specifically to Babloo. The other appellants could 'ot Crl.A. Nos.B97/20L0, 900/2010 & 487/20j.[2] \cP \ have known as to who was the object of the exhortation. The case of th[9] prosecution itself shows that there was no pre-meditation in the incident. Yad Ram and the other appellants did not come together but came from different directions. There is thus no evidence that anybody exhorted. any person to kill the deceased. There is no evidence that Babloo was exhorted to kilt Mohd. Rashid Khan.

98. The record placed before this court would show that there is no evidence to show that the accused persons harboured intentiorg let alone cornmon intention to cause such injury to Mohd. Rashid Khan which would result in his death. There is also no evidence that the appellants acted in furthereulce of such intention. There is also nothing to show that Yad Ram and Babloo had a common intention to cause the death.of the deceased. When Yad Ram caught the deceased he would not have known as to whether enyone would attack Mphd Rashid Khan or where i the blow would be given. It is, therefore, not possible to hold that,the prosecutiori fias satisfied the requirement of Sectio n Z[4] of the Indian Penal Cod.e against the' appellants. v\

99. It is the case of the prosecution that Yad Ram held the deceased and that Babloo had inflicted the single blow which resulted in the death of Mohd Rashid Khan. 100' A single blow, not aimed at a particular partof body, has resulted. in the death of Mohd Rashid Khan. There is no evidence that Babloo or qny of the appellants were aware that Mohd. Rashid Khan is to be ^,finished or killed. It is also in evidence that there were several persons from both sides and there was a squabble in a small place. T\e prosecution has led no evidence that Babloo intend.ed to inflict the particular injury and that the same was not accidental or unintentional. ir -T1"'u.is thus no evidence of intention of any person to kill the deceased. 101' Lr the light of the judicial pronouncements noted above, we are therefore of the view that in the present case, in order to bring home t\e guilt for commission of an offence of murder, the prosecution was required to establish beyond reasonable doubt all the conditions of section 300 of the IPc. The prosecution has established that the heceased Mohd. Rizwan Khan had a bodily injury (section 300 of the IPC'firstry'); that the injury was a stab wound caused by a sharp edged wgupgn ('section 300 of the IpC secondry'). Frowever, the prosecuflon Crl.A. Nos.897/20t0,900/2010 & 487/2072,, \"y could not establish that there was an intention to inflict that particular ',' T*" and that it was not accidental or unintentional, or even thht some other kind of injury was intended (i.e, the requirement of Sectiori 300 of the IPC'thirdly'). It is only if all three elements stood proved that the injury would proceed to the last clause of Section 300 of the IpC. (Ref. L958 CrLI 81-8, Virsa Singh as. State of Punjab). The case therefore falls. within Exception 4 to Section 300 of the IpC. =

102. We, therefore, find it is not possible to sustain the convictiorl of Yad Ram and Babloo under section i02 ofthe Indian penal Code.,,, 103' It remains, however, an established fact that the appellants action resulted in injuries as discussed above. The question is whether these appellants could be punished for an offence with which thuy were not charged. In paras 2T and 28 Balaraje alias Trimbak as. state "f Maharashtra (supra) artd (2006) 2 SCC 450: 2006 (1) SCC (Cri) 661 Railha Mohan singh vs. State of V.P.,the court had occasion to consider the effect of an omission to frame or error in the charge framed against the accused persons. It has been held that an accused can be convicted for a[1] offence for which no charge was framed unless the Court is of the opinion that the failure of justice would in fact occasion crl.A. Nos.897/2070, 900/20L0 & 487/2012 ''J'04. A. scrutiny of the examination of Yad Ram and Babloo under section 313 of the CrPC would show that they had been made aware of the basic ingredients of the offence of culpable homicide not amount to murder and given an opPortunity to explain the incriminating evidence which had been recorded against him. The facts sought to be established by the prosecution against them were also put to them. It:r this background the appellants could,be convicted for. commission of such offence under the IPC, ingredients whereof he had

1. been put to notice..a JpU Lr the present case, there is unimpeachable evidence that yad Ram and Babloo were responsible for causing the death of Mohd. Rizwan Khan' Thuy ffi[1], therefore, gailty of commission of the offence of cr:lpable homitide not amounting to murder. 106' We alsotind that in the instant case, the trial court has rightly held that the faihfie to recover t consequence inasmuch as or seize the weapons of offence is of no the case of the prosecution rests on the *) estimony of eye-wituresses. 107 ' So far as the appellant Rajiv@ Raju is concerned, as noted above by the judgment dated 27u March, 2012,.on the same evidence, he has been til.A. Nos.897/20t0, g00/20J.0 U Or,r/r\n \"3 t./ _o(_ \"{ held guihy.for commission of the offence under section g20/g.[4] IPc. He has been acquitted of the charge framed against him Section 902/ g[4] e g07 / g4of the IpC. ' 108' [r the light of the above discussion, we also find that there is no evidence that appellants sanjeev @ sonu and Rajiv @ Raju were at all invorved in the attack on yad Ram. However, they are alleged to have - atbacked PW[1] Mohd Rizwan'. sanjeev @ sonu resurting in recording of MLc Exhibit Pw[7] / A wherein the doctor has opined that his injuries were simple in nature and inflicted by a blunt weapon. rjaz isalleged to rave been injured similarry by Birender @ Boya.. These three apperants.'.ti \., were armed with knives. 1'09' The above narration would show that there is also no evidence at aII that sanjeev @ son', Birender @ Boya or Rajiv @ Raju acted in. furtherance of a corrunon intention. 110' we may arsp examine,the prosecution,s case so far as sanjeev @ sonu, Birender @r. Boya and Rajiv @ Raju is concerned. As per the "*'medical examinatiory the injuries of riaz ard,Mohd. Rizwan have been \.:4 found io be simple in nature hnd infticted by blunt force. Again there is evidence at all fhut the injuries were the resurt of pre-meditation or. Crl.A. Nos.B97/2070, gO0/20J.0 & 4g7/20i.[2] ' Page 62 of66 of the under \r( planning. The prosecution has not led any evidence about any i. circumstances on record which would even suggest that the appellants acted with intentions or had knowledge that any act on their part could. cause death. In this background the conviction of Sanjeev @ S.onu and Birender. @ Boya for co.mmission of offences punishable under Sectio n 307/ 34IpC is not sustainable. '11'l'. We. find that all incriminating circumstances in the evidence against them have been put to them and they have been given opportunify under Section 3L[3] of the Cr.P.C. to explain the same. Given \J the settled legal position, they can thus be convicted for commission of such.offences as are disclosed in the evidence on record. We are satisfied that the prosecution has established commission of offences under Section 324 of the Indian penal Code.

112. We therefore hold that the conviction of Sanjeev @ Sonu, Birender @ Boya for comrnission of an offence under Section g07 / g4of the Indian -1 Penat Code are not sustainable and is hereby set asid.e and quashecl. \-J Thuy are held guilty for commission of the offence under Section 324 of. Crl.A. Nos.897/2010, 90A/2010 & 457/20J[2] f \ob the Indian Penal Code and each of them is held guilty for commission of offences under Section 324 of the IPC. The conviction of Rajiv@Raju for the commission of offence under Section 324 of the IPC is unassailable. \13. As discussed above, there is also no evidence of common intention being nursed. by Rajiv @ Raju. His conviction for commission of offence punishable under Section 34 of the Indian Penal Code is therefore unsustainable. However there is sufficient evidence to support his conviction for commission of offences punishable under Section 324 of the Indian Penal Code. (.<,':

11.4. As a result of the above, we are required to modify the judgment d.ated 28u' May, 20'1,0 on conviction and the order of sentence dated 3Lrt Yuy, 2010 imposed upon the appellants in Crl.Appeal Nos.897/2010 & g00/2010which shall stand substituted by the fbllowing:-

(i) The appellants Yad Ram and Babloo in Crl.Appeal No.90 0 / 2010 are held guilty for commission of offences under Section 299,:-'1 r..r {;,j read with Section 304 of the Indian Penal Code and are sentenced to rigorous imprisonment for a term of ten years and: fine for a sum of Rs.5,0i00/ - each. In default of payment of fine, Crl.A. Nos.897/2010,900/20j.0 & 487/2012 page SA oj'SS.i \"1 v thesc appcllants shall undcrgo further simple imprisonmerrt of six months.

(ii) The appellants Sanjeev @ Sonu and Birender @ Boya in

Crl.Appeal No.897/ 2010 are convicted for commission of an ltfence under Section 324 of the Indian Penal Codc and sen.tenced to rigorous imprisonment of two years each. and fine of Rs.2,000/- each. In dcfault of payment of finc, these appellants shall undcrgo furthcr simple imprisorrmcnt of two months.

115. We are further.required to modify the judgment dated 27il, Mar:ch, 2}lzfinding Rajiv @ Raju guilty of commission of an offcnce under Section 324/34 IPC. 'fhe appellant Rajiv @ Raju shall stand convictcd for commission of an offence under Section 324 of the Indian Pcnal Codc.

176. l'hc challenge to the order of sentence dated 29tt Mar:cft 2012 by Rajiv @ Raju is hereby rejccted.

177. I-rr vicw of thc disposal of crl.Appeal Nr>.487 / 2012, CTl.Misc.pHig No.822l 201.2& CI[1].M.A. No.5241./2012do not survive Crl.A. Nos.897/2010, 900/201_0 & 487/201_2,I e \o6' for adjudication. terms., MAYr.4lzorc Crl.A. Nos.897/2070, 900/20L0 & 457/2012 These applications are disposed of in the above I -,s\ 1{" V^fu'YtgfroMIrrAL) t/ JUD GE JUDGE Poge 66 of.66 '. e