CRL.A./218/2012 of ASHOK @ RAMU Vs STATE OF THE NCT OF DELHI

Signature Not Verified

. \ ^\V".

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIMINAL APPEAL No. 1490/2011

Reserved on:August, 2012Date of Decision: (^November, 2012

NARESH @ KALU

....Appellant

Through Mr. Ramesh Gupta, Sr. Advocate withMr. Jitender Tyagi, Advocate.

Versus.

THE STAIE

... Respondent

Through Ms. Richa Kapoor, APP for the State.

CRIMINAL APPEAL No. 218/2012

ASHOK @ RAMU

....Appellant

Through Mr. Ajay Verma, Advocate.

Versus

STAIE OF THE NCT OF DELHI

... Respondent

Through Ms. Richa Kapoor, APP for the State.

CRIMINAL APPEAL No. 385/2012

BALRAJ

....Appellant

Through Mr. S.K. Tiwary, Advocate.

Versus

STATE GOVl\ OF NCT OF DELHI

... Respondent

Through Ms. Richa Kapoor, APP for the State.

CRL.A. No. l'l9()/?,0M+connectecl matters

Page 1 of 40

CORAM:HON'BLE MR. JUSTICE SANJIV KIIANNAHON'BLE MR. JUSTICE S.P. GARG

SANJIV KHANNA, J.:

Naresh @ Kalu, Ashok and Balraj by the impugned judgmentdated 20"^ July, 2011 have been convictedunder Section302 read withSection 149 of the Indian Penal Code, 1860 (IPG, for short) for murderof DushyantSharma. By the order of sentencedated 17"' September,2011 they have been sentenced to imprisonment for life and fine ofRs.10,000/-eachand,in defaultof paymentof fine,rigorousimprisonment for three months. For the offence under Section 307 readwithSection149 IPC, they havebeensentencedtorigorousimprisonment for eight years and fine of Rs.4,000/- each and, indefault of payment of fine, rigorous imprisonmentfor four weeks. Theappellants have also been convicted under Section 148 IPC andsentenced to rigorous imprisonment of three years and fine ofRs.1,000/- each and, in default of payment of fine, they shall undergorigorous imprisonment for one week.All the sentences are to runconcurrently. The aforesaid case arises out of FIR No.869/2006, PoliceStation Okhla Industrial Area, Delhi. It became subject matter of thecharge sheet in Session Case No. 23/2007.

2.DD N0.44A, datedSeptember, 2006, (Exhibit PW-15/DA)

was recorded at 6.41 A.M. and DD No. 43A was recorded at 6.45 A.M.on the basisof informationfrom the PoliceControlRoom that anaccident had been reported near Oldila, Phase-I, Indira Kalyan Campahead of drain by Constable Mahipal.Another DD entry No. 46Adated 30"' September,2006 was recordedat 7.55 A.M. (ExhibitPW-23/B) by the duty Constable Vinod that an unlmown person had beenadmitted in an unconscious condition, by Head Constable Makhanlal.The said person was taken to the hospital from Okhla Road Airteloffice. By DD entryNo. 4IB dated 30"' September,2006, Section302IPC was added after it was medically known that the patient had died.

3.During the course of investigation, the deceased was identifiedas Dushyant, by identification memos Exhibit PW-5/A, (PW-15/C1-C2) and PW-6/A (PW-15/C-3).

4.The Post Mortem Report of Dushyant (Exhibit PW-17/A) andDeath Report (Exhibit PW-15/C1) establish that the deceased had ahomicidal death.The Post-Mortem Report (Exhibit PW-17/A) statesthat the deceased had the following 7 ante mortem injuries.

i.A lacerated wound, 2x1 cm and bone deep, vertically placedover the occipital region between two ears on midhne.

ii. Abrasion of size 1.5 x 0.5 cm present over back and between twoscapular region at upper portion, lies 1 cm left lateral from midline.Vertically placed and reddish in colour.

iii. Rail road type contusion of size 10 x 2 cm, with 0.5 cm gapbetween two lines, was present over left scapular region directeddownwardand lateral from medical size. Contusionmedial end is 11cm from midline and 13 cm below from tip of left shoulder. Bluish incolour.

iv. Contusion of size 8 x 3.5 cm present left scapular region, rail roadtype and 1.00 cm gap between two contusion line. Obliquely placed,medial end is 14 cm from midline and 10 cm from tip of shoulder.Bluish in colour.

V. lacerated wound of size 3 x 0.5 cm was on superior surface of theleft shoulder, autero-posterity directed. Lies 10 cm from neck.

vi. Abrasion of size 1.5 x 1 cm present over right knee, reddish incolour.

vii. Left hand deformed and contused over dorsal aspect, cut sectionshowed extravasation of blood overall dorsal aspect of hand. Alsoshowing fracture of IVth onetacarpel bone and fracture of proximalphalanyx of left ring fmger and associated utrueniatoma.

5.Post Mortem Report details that, on examination of the skull, itwas noticed that there was extravasation of blood seen under the scalp.The skull showed linear crack fracture expanding from midline frontarea cranial fossa to upwards. There was subdural hemon'hage overthe posterior part of left parietal temporal and occipital region. Thespleen showed rupture on lateral border. The fourth metacarpelboneand proximalphalanyxof the left fmgerwere fracturedwith associatedhaematoma, in addition to two abrasions including one present over the

back. The first two injuries,individuallyandjointly, were sufficienttocause death in ordinary course of nature.

6.The aforesaid Post Mortem Report was proved by Dr. B.L.Chaudhary (PW-17), who had conducted the deceased's post-mortem,on 1st October 2006.In his cross-examination, it was purported bythe appellants counsel, that the MLC Report (Exhibit PW-ll/A)mentions only two injuries and that the Death Report (Exhibit PW-15/Cl)mentions justone injury, on the back side of the head.However, we are inclined to accept the Post Mortem Report becausethe MLC Report of the deceased (Exhibit PW-ll/A)was localexamination and the patient was further advised to get an X- ray report,of both hands and the skull. In the MLC Report, the patient wasreported to be disoriented, laden with faeces all over body andresponding to painful stimuli. The X ray Report (Exhibit PW-9/A)does show fracture of the parietal bone and, in the MLC Report (ExPW 11/A), the cause of death is delineatedas shock, as result ofmultiple injuries consequentupon blunt force impact.

7.Ashok, who has appeared as PW-3, was admittedto All IndiaInstitute of Medical Sciences and was examined, in the casualty ward,by Dr. Jyoti, who had recorded MLC Exhibit PW-12/A. The saidMLC was recorded at 10.00 A.M. and, it is mentioned under theCRL.A.No. 1490/2011+connectedmatters^

heading "Particulars of Injuries or Symptoms", that "Not (sic No)proper histoiy available" and the alleged history was of road trafficaccident at 4.00 P.M. The patient, it is apparent, was brought to theHospital by Prem Singh, relative, who appeared as PW-7. Statementof Prem Singh that he had not brought PW-3 Ashok to the hospital isdisbelieved by us, as MLC (Ex. PW12/A) records his presence andstates that the patient Ashok was brought by relative.As per theMLC, the patient was given stitches. PW-3 was primarily treated fromoutside (i.e no internal examination)and had black left eye. Thenature and type of injuries suffered by Ashokreadwith statements ofthe witnesses establish that he had suffered simple injuries and it is nota case of attempt to murder.

8.The primary question raised, in the present appeals, relates to theinvolvement of the appellants in the said offence and the nature ofoffence committed by them. We may note that proceedings, under thesame FIR, have been initiated against Sanni and Yashpal @ Ludku butthey, beingjuvenile,are beingtriedbeforethe JuvenileJusticeBoard.

9.Prosecution evidence primarily relies upon the statements ofPraveen Bhandana(PW-1), Parmod (PW-2) and Ashok (PW-3) whowas injured. PraveenBhandana(PW-1)has statedthat he had gone toKalkaji Mandir with Ashok Bhandana, Pramod Bhandna, ParveshCRL.A.No. 1490/2011+coniiectedmatters^

Bhandana and Dushyant, in the year 2007.After having 'darshan',from Kalkaji Mandir, they had taken hft in one Canter truck. He didnot recollect the fiill registration number of the Canter but stated that itwas DL IL 3483.Kalu was the driver of the Canter and there weresome 10 people, at the back of the Canter.After covering somedistance, the Canter had taken turn towards Nathu Sweets.Theyasked the driver to stop the vehicle as they had to go straight.Kalu,however, did not stop the Canter, in spite of several protests andthumping from the back. The Canter finally stopped at distance ofabout 1 V2 kilometersfrom Nathu Sweets. After getting down, theyenquired from the driver as to why he had not stopped the Canter, nearNathu Sweets corner. In the driver's cabin, 3-4 boys were also sittingand they were under the influence of alcohol. They misbehaved andstruck the gate, of the Canter, at PW-l's chest. The driver and hisassociates, sitting at the front and back of the vehicle, came down.They startedbeating PW-1 and gave him some slaps. The deceasedand his fiiends started scurryingin the directionof their houses butKalu and his associates chased with wooden sticks. Thereafter, thedeceased and his friends ran towards their houses and got lift from anauto till Tehkhand Nala. In the meantime, Kalu reached there, in hisCanter, along with about 16-17 people. He, along with Pravesh, ran

CRL.A.No. 1490/201l+connectedmattersPag®''0

towardsTuglakabadforestandAshokrantowardsTehkhand.Dushyant ran towards the Nala but it was dead end, as there was nalain front, and he had no escape. He could not run away and savehimselfThen Kalu inflicteda blow on the back side of the head ofDushyant, using rod.Ashok was also apprehended by Kalu'sassociates. PW-1 too was given 2-3 lathi blows on his back side, byKalu's associates, when he was crossing the wires in the jungle. PW-1stated, in the Court, that Dushyant was killed by Kalu, who had comealong with 15 boys. He identified accused Ashok, Balraj and Naresh @Kalu. He affirmed that Naresh @ Kalu and his associates were armedwith rods and danda.Next morning PW-1came to know thatDushyant had died.He filed complaint in the Police (Exhibit PW-1/A). Accused Naresh @ Kalu was apprehended by the police and hemade disclosure (Exhibit PW-l/B).Disclosure statement was alsomade by Balraj (Exhibit PW-l/C).The Canter was recovered videseizure memo Exhibit PW-l/F.Danda and an iron rod were recoveredby the police vide seizure memo Exhibit PW-l/G and PW-l/H.In thecourt, PW-1 identifiedthe rod recoveredfrom Naresh as Exhibit P-1.The rod was about four feet long and quite heavy in weight. dandawas recoveredfrom the possessionof Balraj, which was markedExhibit P-2.PW-1 identified Balraj and Ashok present in the Court.

CRL.A. No. 1490/2011+connected matters

He furtherstated that Ashok also had rod in his hand. In his cross-examination,he was confrontedwith his statementExhibit PW-l/A,where he had not stated that 3 or 4 persons and the driver Kalu weresitting in the cabin and they were under the influence of liquor or thatthe associates had come down from the cabin, to back portion, andbeaten him. PW-1 had not given names of Ashok, Balraj and Naresh,next day, when the FIR was registered.He voluntarily stated that hedid not know the name of the accused, i.e. Ashok, when the FIR wasregistered.Statement (Exhibit PW-l/A) was confronted as therein itwas stated by PW-1 that some persons had called one of the associatesas Vinod and the said associate had apprehended Ashok.Some otherminor discrepancies have also been pointed out and mentioned in thecross-examination,but this at best, are immaterial and do not negate or,in any manner, cause difference in credibility and -truthfulness of thetestimony and statement made by PW-1.PW-1 categorically deniedthat Dushyant had died in road accident or had received any injuriesdue to road accident. He accepted that he had not taken Dushyant orAshok to the hospital. He did not visit Ashok, in the hospital, becausehis family members were angiy with him.However, his familymembers had visited Ashok in the hospital.Certain other aspects ofthe statement, including why and how PW-1 and others had left

CRL.A. No. 1490/201 l+comiected matters

Dushyant behind and questions relating to airest of Naresh@ kalu,have been discussed separately.

10.Parmod (PW-2) has stated that he, along with the friends- thedeceased Dushyant, Praveen, Ashok and Parvesh, had gone to KalkajiMandir and, thereafter,had taken lift from the driver of an EicherCanter.The driver had allowed them to stand on the back side of theCanter.However, instead of going straight, the Canter driver took aleft turn.PW-2 and his friends raised hue and cry and started beatingthe body of the Canter but the driver stopped only after covering V2 or 1kilometer.The driver Kalu, who was presentin the court, wasquestioned as to why he did not stop the Canter.In the court,- PW-2identified Kalu but stated that he could not identify others, who werepresent in the Canter when they had taken the lift. After having tiff,PW-2 and his friends started walking back home.They managed tostop CNG auto and travelled for about 2 and V2 kilometers.Theywere dropped at Okhla, Phase-I.Meanwhile, the Eicher Canter, inwhich they had earlier taken lift, came back and there were about 10-12 persons who were holding rods and dandas.He identified Naresh(Kalu),Ashokand Balrajas persons,who had given blows toDushyant.Kalu had inflicted rod blow on Dushyant'sbackside.Balrajhad given blow, with danda, on the head, foot and other body parts ofCRL.A. No. 1490/2011+coiinected mattersPage 10 of 40

Dushyant.Accused Ashok had hit, using rod, and had manhandledDushyant.They started running to save their lives.PW'2's friendAshok had also received injuries.He identified the rod (Exhibit P-1)and the danda(ExhibitP-2).In the cross-examination,he wasconfronted with the statement under Section 161 Cr.P.C. (Exhibit PW-2/DA) wherein it was not recorded that the injured Ashok had receivedinjuries from accused Ashok. He accepted that the danda (Exhibit P-2)was not recovered in his presence and he had not identified the saiddanda in any TIP.He made statement, under Section 161 Cr.P.C. tothe effect that, after the Canter stopped, there was 'Battamiji andhathapai', abusive talks and fight.He was confronted with thestatement (Exhibit P-2/A) wherein it was not mentioned that appellantsNaresh (Kalu), Ashok and Balraj, along with others, had causedinjuries, using rod, but it was recorded that Kalu, along with hisassociates, had caused injuries on Dushyant using lathis and dandas.He had informedthe police, at about 12/12.30P.M., next day when hehad gone to the police station, along with his parents. He had notvisited Ashok and Dushyant in the hospital but his family memberswent to the hospital, next morning, after 10 A.M. He identifiedtheCanter and stated that, at the time of the accident, Singhla Transportwas written on the head of the Canter and on the side but these words

were missing when the Canter was shown to him.When he appearedas witness, he also gave the registration number of the Canter as DL1 LE 3483.He denied the fact that he was not aware of the number ofthe Canter and that is why he had not mentioned the number of theCanterinhisstatementrecordedearlier.Hehadmentionedtheregistration number of the Canter in his examination-in-chief.

11.Ashok (PW-3) is one of the injured. His deposition is similar toPW-1and PW-2,that he along with his friendsDushyant,thedeceased, Parmod , Pravesh and Praveen had gone to Kalkaji Mandir,at night intervening 29/30 September, 2006.Appellant Kalu hadinflicted rod blow on the back of the head of Dushyant.Other twoaccused gave danda blows.He was beaten by Kalu and two otheraccused, present in the court, at about 3.00/3.30 A.M. After darshan, atabout 2 A.M., they were going, by foot, towards their house and hadasked for lift, from Kalu, in his Canter. They had to go straight but thedriver Kalu had turned the vehicles towards Nathu Sweets shop.Hestarted misbehaving and abusing them, after they alighted.The matterwas pacified and they started towards their house. They took lift in aCNG auto.Appellant Kalu again reached there in his Eicher Canter,with six persons along with him or some more.Six persons alightedfrom the Canter and gheraoed them.Kalu possessed rod and hisCRL.A. No. 1490/2011+connected mattersPage 12of 40

associates were carrying dandas and rods.He was beaten by theappellant Kalu, and his associates, which included the two accusedpresentin thecourt.His friendsParvesh,Praveenand Pramodsucceeded in running away from the spot.He received injuries andbecame unconscious and only regained consciousness in the hospital.He could not identify the exact weapon but there were rods and dandas.He identified the Canter (Exhibit P-3) and noted that, at the time of theincident, Singhla Transport was written at the head of the Canter andon the side.The words 'Singhla Transport' were missing, when theCanter was shown to the witness.He stated that he was seriouslyinjured and did not remember when his statement was recorded by thepolice. He volunteered that he had given description of the accused inhis statement, under Section 161 Cr.P.C.He was confronted with thestatement under Section 161 Cr.P.C. (Exhibit PW-3/DA) wherein itwas recordedthat Kalu had beaten him and that three other boysattacked him, with rod and wooden dandas. It was pointed out that, inthe statement (Exhibit PW-3/DA), the witness had'not stated that thematter was pacified after the initial quarrel.He averred that he hadseen six boys but there could be more than that.In the statement(Exhibit PW-3/DA), it was recorded that the said driver reached in thesame Canter (Exhibit P-3), along with some boys, at 3.15 or 3.30 A.M.

CRL.A. No. 1490/2011+connectedmattersPage 13of 40

at night. Further in the said statement it was mentioned that the driverasked his associatesto attack them "Maaro Salo Ko".In the statement,(ExhibitPW-3/DA)it was not recordedthat appellant Kalu wascarrying rod and that Kalu, with his two associates, apprehendedDushyant, after chasing him to the other side of the road, hit him on thehead and other body parts, with iron rod and dandas. Pravesh, Praveenand Pramodsucceededin runningawaybut thisfact was notmentioned in Exhibit PW-3/DA.As he was unconscious,he could nottell who took him to the hospital and at what time. He was with hisfamily members when he became conscious.As noted above it isapparent from the MLC of Ashok (Ex. PW 12/A) that he was broughtto the hospital by relative as recorded therein. Prem Singh (PW-7) inspite of his denial, it appears, had brought (PW-3) Ashok to thehospital, as PW-7's name is mentioned in the MLC.

12.As far as presenceof appellantKalu is concerned,it isestablished beyond doubt. He is the only person who was called andreferred by his name, in the FIR. Presence of Kalu is also establishedthrough his Eicher Canter bearing registration No. DL ILE 3483,owned by his father.

13.The other question relates to recognition of appellants Ashokand Balraj, who were members or associates of Kalu and had comeCRL.A. No. 1490/2011+connectedmattersPage 14of40

back with him to beat up the other group. Ashok (PW-3) is the injuredwitness in the said incident and presence of PW-1 and PW-2 is alsoestablished.Therefore, we are inclined to accept the statements ofPW-1, PW-2 and PW-3 that Ashok and Balraj had joined Kalu and hadbeaten Dushyant and injured Ashok.Statements of PW-1, PW-2 andPW-3 to this extent are reliable, truthful and credible.

14. The registrationnumber of the Canter was DL IL 3483, asrecorded and mentioned in the statement of Praveen Bhandana (PW-1)which was recorded by Inspector K.S. Rawat (PW-15).He has statedthat he, along with Praveen Bhandana and police party, were searchingthe accused person and the Eicher Canter, as per the description givenby Praveen Bhandana.The said Eicher Canter DL ILE 3483 wasfound outside Singhla Transport, Shakur Basti, Oldila, Phase-II andwas identified by Praveen Bhandana.The number of the Cantersubstantiallymatched the description -Eicher Canter DL IL 3483-which was mentioned and stated before.The short summary recordedby Insp. K.S. Rawat (PW-15) on 1^' October, 2006 and producedbefore the Metropolitan Magistrate mentions that driver of EicherCanter DL IL 3483 and his associateswere involved in scuffle withdeceased Dushyant and his associates. The said incident occurred at3.15-3.20 A.M., when Kalu and other boys came and attacked the other.CRL.A. No. 1490/201 l+connected matters• Page 15 of 40

group. The FIR, registered at Okhla Pohce Station records the time tobe 11.58 P.M., which can only be typographical error, since rukkawas registered at 11.58 A.M.

15.Insp. K.S. Rawat (PW-15) started the search, with the givendetails.The mentionedEicherCanter was foundoutsideSinghlaTransport,Sanjay Colony, Oldila, Phase-II, New Delhi and wasidentified by Praveen Bhandana (PW-1).PW-15 has stated that, onentering the office of Singhla Transport, Praveen Bhandana (PW-1)identifiedthedriverKalu,whowaspresentthereandwasapprehended.He voluntarily made disclosure statement (Ex.PW-1/B) and, pursuant to the disclosure statement, an iron rod (Exhibit P-1) was seized. Thereafter, on the pointing out of Kalu, accused Balrajwas arrested. Balraj also made voluntary disclosure statement (ExhibitPW-l/C)and from his house one danda was recovered.However,other accused could not be traced. Appellant Ashok was arrested laterand supplementary charge sheet was filed. ASI Suresh Kumar (PW-23) has narrated similar facts in his court statement.

16.There is discrepancy as to how Kalu was arrested.The policeofficersPW-15 and others have stated that Kalu was arrested from hishouse/officeafterbeingidentifiedby PraveenBhadana(PW-1).Praveen Bhadana has, however, stated that when they visited the houseCRL.A. No. 1490/2011+connectedmattersPage 16 of'40

of Kalu, he was not there.Father and brother of Kalu were taken topolice station.Thereafter Kalu was brought to the police station bysomeone.This discrepancy, however, does not materially affect theprosecution case or version and the identification of the appellants byPW-l,PW-2andPW-3.

17.It was contented by the defence counsel that identification byPW-1, PW-2 and PW-3, in the court, cannot be relied upon.Theyargued that the appellants must have been paraded and shown to thewitnesses and possibility of photographs being shown to PW-1, PW-2and PW-3shouldnot be ruled out. The accusedBalraj,in TIPproceedings record (Exhibit PW-26/B), has alleged that, while inpolice custody, the police had taken his photographs and shown this tothe opposite party. He further alleged that he was taken to PatialaHouse Court, in Maruti car by the opposite party. We do not agreewith the said contentions. The appellants refused to participate in theTIP proceedings.Manoj Kumar (PW-26), Chief MetropolitanMagistrate, who was asked to conduct TIP of accused Kalu and Balraj,and M.M. Ajay Goel (PW-27), who was asked to conduct the TIP ofaccused Ashok,have stated that the three appellantsrefused toparticipate in the TIP in spite of warning by PW-26 & PW-27. PW-3,in his statement, recognized that Balraj who had beard but was cleanCRL.A. No. 1490/2011+connected mattersPage 17of 40 40

Page 17of 40 40

shaven at the time of occurrence. AccusedBalraj was arrestedon 1®'November2006,the same day as Kalu.AccusedAshokwasabsconding at that time and was declared proclaimed offender. Hewas subsequentlyarrested on 13"^ December2007. Identificationofthe three appellants by PW-1, PW-2 and PW-3, in the court, carries itsown sanctity and should be accepted.In Munsiti Singh Gautam v.State ofM.P. (2005) 9 SCC 631 it has been held that:

"Thepurposeofapriortestidentification,therefore,istotestandstrengthenthetrustworthinessof that evidence. It is, accordingly,considered safe rule of prudence to generally lookforcorroborationofthesworntestimonyofwitnesses in court as to the identity of the accusedwho are strangers to them, in the form of earlieridentification proceedings. This rule of prudence,however,issubjecttoexceptions,when,forexample, the court is impressed by particularwitnesson whose testimonyit can safely rely,withoutsuchorothercorroboration.Theidentificationparadesbelongtothestageofinvestigation, and there is no provision in the Codewhich obliges the investigating agency to hold orconfers right upon the accused to claim testidentificationparade.Theydonotconstitutesubstantiveevidenceandtheseparadesareessentially governed by Section 162 of the Code.Failure to hold test identification parade wouldnotmakeinadmissibletheevidenceofidentification in court. The weight to be attached tosuch identificationshould be matter for the courtsof fact. In appropriate cases it may accept theevidence of identification even without insisting oncorroboration.(See KantaPrashad v. DelhiAdmn. [AIR 1958 SC 350 ; 1958 Cri LJ 698], VaikuntamChandrappa v. StateofA.P. [AIRCRL.A. No. 1490/2011+coiinected matters

Page 18of 40

1960SC1340:1960CriLJ1681],Budhsenv. State of UP. [(1970) 2 SCC 128 :1970 SCC (Cri) 343] and Rameshwar Singh v. StateofJ&K[{\91\)2 SCC 715 : 1971 SCC (Cri) 638]•)"

18.Age of accused Balraj may be 45 years and not 19-20 years, thegeneral description of the assailants' indicated by PW-3 in hisstatement under section 161 Cr.P.C. , but this by itself does not meritthat we shoulddisown the court identification.PW-1to PW-3 hadgiven general description and approximate age of the assailants. Theassailants, including those facing trial under the Juvenile Justice Act,are mostly young. The identificationof the appellant Balraj cannot bedisregarded because of the general description of the assailants givenby PW-1 to PW-3. Neitherdowe agreewiththe appellants'contentionthat statements of PW-1 to PW-3 should be disregarded, since Parvesh,who was also presentwith PWs 1 to 3, was not examinedas witness.The court examines the credibility of witness and the evidenceproduced.It does not requirea numberof witnessesto substantiatethesame point. Statementsof PWs 1 to 3 cannot be discardedbecauseParvesh Bhadana has not been examined.

19.Appellantscontend that PWs 1 to 3 were not present whenDushyant and all the accused had gone to Kalkaji Mandir and neitherhadtheytakenlift in theCanterbut thiscannotbe accepted.Contentionthat the conduct of PW-1, PW-2 and PW-3 is unnaturalsince they did not, on returning to their houses, inform the relatives orthe police that the deceased has been injured or take him to thehospital, has also to be rejected. It is apparent that PW-1 and PW-2 ranto their respective houses, from the crime spot, and only realized thenext day that Dushyanthad expired.Even PW-3 received injuries(MLC Ex. PW-12/A) though they were not grievous in nature. PW-3was taken to the hospital only next morning, at about 10 A.M. It isapparent that PWs 1 to 3 did not realise the seriousness of the injuries,caused upon Dushyant, till the next day. The noting on the MLC(Ex.PW12/A);"alleged history of road accident at 4 P.M." and "no properhistory available" suggests that injured Ashok (PW-3) did not want toreveal, to the doctors, that he was involved in brawl. Hence the saidcontradiction in the MLC as the injured PW-3 wanted to avoidregistration of criminal case and involve police. This is endorsed bythe statement of Prem (Singh) Bhandana (PW-7), who had taken PW-3to the hospital. He has statedthat, on 30"' September,2006, he cametoknow that his nephew had received injuries and was taken to AIIMS by

someone. On reaching the hospital, he found PW-3 in the casualtyward.PW-7 admitted that he was not witness to the occurrence,inwhich Ashok (PW-3) had got injured.

20.It was highlighted before us that PW-7 had stated that PraveenBhadana, Ashok Bhadana and Pramod Bhadana were present at AIIMSwhen his nephew Ashok got admitted. There is contradiction to thisextent because earlier PW-7 had stated that his nephew was taken tothe hospital by someone else but later he admits that the threewitnesses were there when he got his nephew admitted. PWs 1 and 2have disputed and denied their presence. This contradiction, however,does not create dent in the prosecution case and does not helpappellants in any way. In Ashok's MLC (Exhibit PW-12/A), name ofthe person who had brought him to the hospital was mentioned as PremSingh S/o Candgi Ram. PW-7 is Prem Bhadana S/d ChandgiramBhadana.It is clearly mentioned that the injured was brought by arelative, i.e., Prem Singh S/o Chandgi Ram Bhadana. PW 7 howeverdid not want to accept and admit that he had brought PWS Ashok tothe hospital. This discrepancy in the statement of PW-7 does notmaterially affect the clear and categorical statement of PW-1, PW-2and PW-3. PW-1 and PW-2 agreed that they had not taken Dushyantor PW-3 to the hospital. PW-1, PW-2 and PW-3, it is apparent, wereCRL.A. No. 1490/201l+connected mattersPage21 of 40

stating the truth as far as the occurrence is concerned.In fact, it isclear that PW-1 and PW-2 could not have taken Dushyant to thehospital as he was taken to the hospital by Head Constable Makhanlal.The MLC (Exhibit PW-ll/A) described him as unloiown person aged,about 20 years, and MLC was recorded at 7.22 A.M.The MLC ofAshok (Exhibit PW-12/A) was at 10 A.M.The two MLCs are of thesame hospital, i.e., AIIMS.Further, the aforesaid facts stated by PW-1, PW-2 and PW-3, alleging involvement of the three appellants, arealso proved from the recovery of the Eicher Canter.

21.This brings us to the appellants' contention that the deceased haddied in road accident.It was submitted that, even if injuries weregiven by rods and dandas, the cause of death was road accident and notthe said injuries, if any. Reliance is placed upon the initial DD entryNo. 44 (Exhibit PW-15/DA), recorded at 6.45 A.M. on 30"^September, 2006, when accident was reported.After some time, at7.55 A.M.,anotherentry DD No. 46A (ExhibitPW-23/B)wasrecorded that an unconscious person, lying in front of Okhla RoadAirtel Office, has been admitted through Constable Makhanlal to ahospital.Constable Makhanlal had appearedas PW-22.Afterreceiving the wireless message at 6.41 A.M. vide DD No. 44A (ExhibitPW-15/DA) he had rushed to the spot and saw an injured person beingCRL.A. No. 1490/2011+connected mattersPage 22 of 40

removed to the hospital.He did not know the name of the injured upto his admission in the AIIMS Hospital.No other person, apart fromDushyant, was lying there at the spot.Public persons had gatheredthere but they did not know the cause of injury. Since no one had seentheaccident,therefore,there is noeye witnessto supporttheallegation.Statements of PWs 1 to 3 on the other hand are clear,categorical and lucid where they implicate the appellants. Injuries onAshok, though not of serious nature, can only be explained by theevents narrated by PWs 1 to 3. Ashok (PW-3) was extensively cross-examinedby counselfor accused Nareshand Balraj, wherein thecounsel suggested that PW-3 and the deceased Dushyant had jumpedfrom the running Canter and this had caused them injuries.Thus, thesaid appellants have accepted the position that the Canter was used thatnight and was connected with the injuries/incident.The appellantKalu, in his statementunder Section 313 Cr.P.C had stated that theinjured person had sustained injuries after jumping from the Canter asthey couldnotjudgethe speeddue to darkness. He, however,claimedthat the Canter was not being driven by him but someone else. Though,he did not name the said person but claimed that the driver was set freeand he was implicated falsely.

22.Thus, we do not agree with the appellants counsel that there aremajor discrepancies in the statements of PW-1, PW-2 and PW-3 whichmaterially dent and cast reasonable doubt on the prosecution case.

23.From the statement of PW-1, PW-2 and PW-3, the followingfacts emerge and stand established beyond doubt:facts emerge and stand established beyond doubt:

(i)PWs 1 to 3, along with deceased Dushyant and PraveshBhadana, had gone to Kalkaji Mandir and after having'darshan'had taken lift in an Eicher Canter.Bhadana, had gone to Kalkaji Mandir and after having'darshan'had taken lift in an Eicher Canter.

(ii)There was exchange of swear words, and the driver and otheroccupants of the Canter had scuffle with PWs 1 to 3,deceased Dushyant and Pravesh Bhadana, as the driver hadtaken turn and gone in direction which was not as per thedesire or understanding of PWs 1 to 3, the deceased andPravesh Bhadana.occupants of the Canter had scuffle with PWs 1 to 3,deceased Dushyant and Pravesh Bhadana, as the driver hadtaken turn and gone in direction which was not as per thedesire or understanding of PWs 1 to 3, the deceased andPravesh Bhadana.

(iii)Praveen Bhadana (PW-1) has given the number of the saidEichertruckas DL1 L 3483.The said numberis alsomentioned in the FIR (Ex. PW-4/A) which was registered on30"' September 2009 at 11.58 P.M. (sic A.M.).Theregistration number was vital clue and became the primarysource for the investigation and subsequent arrest of theappellants-accused.Eichertruckas DL1 L 3483.The said numberis alsomentioned in the FIR (Ex. PW-4/A) which was registered on30"' September 2009 at 11.58 P.M. (sic A.M.).Theregistration number was vital clue and became the primarysource for the investigation and subsequent arrest of theappellants-accused.CRL.A. No. 1490/2011+connectedmattersPage24 of 40

(iv)PWs 1 to 3 had identified the said Eicher Canter which wasseized and subsequently released on siiperdari.PW-2 andPW-3 have stated that at the time when they had taken liftwords "Singla Transport" were written on the said EicherCanter but subsequently, when it was produced in the court atthe time of recording of evidence, the said words wereobliterated.seized and subsequently released on siiperdari.PW-2 andPW-3 have stated that at the time when they had taken liftwords "Singla Transport" were written on the said EicherCanter but subsequently, when it was produced in the court atthe time of recording of evidence, the said words wereobliterated.

(v)Name of the driver of the Eicher was Kalu.The name wasgiven by Praveen Bhadana (PW-1) and finds mention in theFIR (Ex. PW-4/A). The said name was also stated by PW-2and PW-3.given by Praveen Bhadana (PW-1) and finds mention in theFIR (Ex. PW-4/A). The said name was also stated by PW-2and PW-3.

(vi)One of the appellants herein Naresh @ Kalu is the son of theregistered owner of Eicher Canter No. DL 1LE 3843.registered owner of Eicher Canter No. DL 1LE 3843.

(vii)PW-1 to PW-3 stated that, after the altercation, PW-1 to PW-3 and the deceasedwalked for some distanceand then hadtaken lift from CNG three wheeler and were dropped offat Tehldiand Nala.3 and the deceasedwalked for some distanceand then hadtaken lift from CNG three wheeler and were dropped offat Tehldiand Nala.

(viii) Kalu and his associates drove back to Tehldiand Nala, withiron rods and dandas, and attacked PW-1 to PW-3, thedeceased Dushyant and Pravesh Bhadana.There is somediscrepancy about the number of persons/associateswho hadiron rods and dandas, and attacked PW-1 to PW-3, thedeceased Dushyant and Pravesh Bhadana.There is somediscrepancy about the number of persons/associateswho had

Page25of40

come, withKaiu.PW-1has statedthat therewere15-16persons; PW-2 has given the number as 10 to 12; and PW-3has stated that there were at least 6 boys.As noticed below,the exact number of assailantscannot be determinedbut theappellants, who were caught, have been clearly identified andit has been established that number of people were more than

five.

(ix)PW-1 to PW-3 identified accused Kalu, Balraj and Ashok asthe persons who had beaten Dushyant and Ashok and were apart of the assembly which had attached them. The appellantshad refused to participate in the TIP proceedings, fearing thatthey would be identified.

(x)PW-1 to PW-3 had affirmed that Kalu was having an iron rodin his hand and had given rod blow to Dushyant, on theback side. Appellant Balraj was having danda. Similarly,appellant Ashok it appears was having danda. We acceptthe contentionon behalfof the appellantAshokthat there isno material to conclusively establish that he was having rodand had used the same.

24.We are not inclined to rely upon statement of Santosh KumarSinghla(DW-2),fatherofaccusedKalu who has claimedthat, on 29"^CRL.A. No. H90/2011+connectedmattersPage 26 of 40

September, 2006, his driver Vinod was driving the Canter which wasused for 'kar seva', fi'om Kalkaji to Tehlchand Village.The allegeddriver Vinod was not produced before the court.PW-1, in hisstatement under Section 161, has stated that one of the assailants wasbeing addressed as Vinod but PWs 1- 3 have been categorical' thatCanter was being driven by accused Kalu. His name resonates in theirstatements under Section 161 Cr.P.C. and even in the First InformationReport.This leaves us with no scope of doubt that Kalu was thedriver. PW-1, PW-2 and PW-3 could not have known, at leasttill thearrest of Kalu, that Kalu is the name of the Canter owner's son.Asper DW-2, on SO"" September, 2006, the police had visited hisresidence and made inquiries. DW-2 propels that Kalu was attending aparty in Maharani Bagh, the night of the alleged incident but no proofhas been put forth for the same. In DW-2'scross-examination, hecould not name this friend of Kalu's whose party was allegedlyattended.It is noted that DW-2 did not take action or protest to thehigher authorities against the alleged 'wrongful'arrest of the accused.Similarly, Jagan Singh (DW-1) claimed that he loiew Kalu as he livedin the same locality. According to his recollection, he had gone toKalkaji and then had taken lift in the tempo.Some boys weretravelling in the tempo and there was dispute between them and the

driver of the tempo, on the route.Two passengers jumped off thetempo which was running at fast speed.During the travel, he cameto loiow that name of the driver was Vinod.He remained present inthe tempo till they reached the tempo owner's house, at Sanjay Colony.When cross-examined,he could not describe the driver but stated thatdriver's physique was like his.DW-1 claimed that he did not knowKalu personally but had generally seen him in Sanjay Colony. Lateron, he had come to loiow that Kalu was arrested. This is contrary to hisopening statement, in examination in chief that he knew accused wellas they resided in the same colony. Statement of DW-1 does not inspireconfidence and the narrative seems improbable. If two co-passengerswere seen jumping from running tempo and sustaining injuries thenthe driver would have been asked to stop. The deceased Dushyant hadsuffered several grievous injuries all over the body which does notsuggest that it was road accident or because he jumped from truck.25.Gopi Ram (DW-3) has stated that Balraj was his neighbour andDirector of Ram Leela Committee.He claims that accused Balraj wasplaying role of Ram, at the Ram Leela, when he was arrested, due towhich the show was stopped.However, DW-3 has not stated thewhereabouts of the accused at the time or day of the incident. He alsoadmits that he did not know in which ease Balraj was arrested.26.Ram Singh (DW-4) has claimed that appellant Ashok used toreside in his neighbourhood, at the time of incident.He had stated thatthe accused Ashok was lifted, by the police, on the pretext of someinquiry.Lateron DW-4came to know that accusedAshok wasimplicated in false case.In the cross-examination, he accepted thatno complaint was made to the higher officers regarding arrest ofAshok.As noticed above, Ashok was declared proclaimed offenderduring initial investigation. He was subsequently arrested.

27.Regarding the conviction of the appellants, under Section 307IPC, for the injuries sustained by Ashok, it is noticed that no grievousinjuries were sustained. MLC Report (Ex. PW-12/A) reflects thatinjuries were simple in nature. It indicates that he had black eye. Hehad wounds and stitches.X-rays were recommendedbut no X-rayReport is on record.It is not indicated whether he had suffered anyfracture. There is no evidence to suggest that the appellants or theunlawful assembly had targeted PW3 with the intention to cause death.As per PW3 he became unconscious. We have rejected the saidstatementofPW3butifhehadbecomeunconscious,theappellants/unlawfulassembly had sufficient opportunity to causeserious injuries. Conviction of the appellants for the simple injuries onAshok (PW3) under section 307 IPC therefore cannot be sustained.CRL.A. No. 1490/2011+coiinected mattersPage 29 of 40

They are convicted under Section 323 IPG for the simple injuriescaused to Ashok (PW-3).

28.Coming to Section 149 readwith Section 141 IPG, it has twoessential ingredients:

9firstly, the offence must be committed by member of anunlawfulassembly (not necessarily by the accused himself)consisting of five or more members and,unlawfulassembly (not necessarily by the accused himself)consisting of five or more members and,

® Secondly, the offence must be committed in prosecution ofcommon object of the assembly or that the members of theunlawfulassembly knew that the offence was likely to becommitted in prosecution of the common object.common object of the assembly or that the members of theunlawfulassembly knew that the offence was likely to becommitted in prosecution of the common object.

(See observationsin Ramachandranand Ors. v. State of Kerala,AIR 20use 3581).

29.Mere presencein the unlawfulassemblydoes not render aperson liable unless he shares the common object which is ultimatelyactuated.The word "object" means "purpose" or "design".Thepui-posefor which the members of the assembly set out or the purposewhich they desired to achieve is the object. In order to make itcommon, it must be shared by the members prosecuted. The object ofthe members should be the same. This requires that there should beCRL.A. No. 1490/2011+connected mattersPage 30 of '10

proof of knowledge of the object pursued, that it was the shared objectand there was general agreement as to how it was to be achieved.The expression "in prosecution of common object" in Section 149 IPChas to be strictly construed as equivalent to "in order to achieve acommon object".

30.Common object may be result of prior concert and commonmeeting of minds, but can be also formed on the spur of the moment.It may be formed at any stage by all or few members of an unlawfullyassembly and the others may just join and adopt it. Once formed, itneed not continueto be the same and can be modified,altered orabandoned at any stage. There must be community of object and objectmay exist up to particular stage and not thereafter. person mayshare particular common object or there may be community ofobject, but the same may exist up to particular stage or for aparticular offence. (See Charan Singh v. State of U.P. (2004) 4 SCC205).

31.Once it is establishedthat the accusedwas member of theunlawful assembly, which had common object, it is not necessary thatall persons forming unlawful assembly must be shown to havecommitted some overt act or omission.Being part of an unlawfulassembly, which shares common object, itself is sufficient.CRL.A. No. 1490/2011+connecled mattersPage 31 of 40

However,caution must be taken to ensure that the accused concernedhad an active mind i.e. shared common object before he is held liablefor the acts of third parties, who were members of the unlawfulassembly. Passers-by or persons who were merely present at the site orthe place of the assembly with no active mind have to be excluded.Some persons may even join the assembly as matter of idle curiositywithout entertaining common object. (See Masalti v. State of UttarPradeshAIR 1965 SC 202 and K.M. Ravi and Ors.v. State ofKarnataka (2009) 16 SC 337).

32.Common object is entertained in the human mind and, being amatter of intention, no direct evidence in the form of overt evidencemay be available. Therefore, existence or non-existence of commonobject has to be gathered from the circumstances. (See Lalji v. State ofU.P. (1989) 1 see ^57). Specific overt acts and omissions by anaccuseddopredicateformation ofthecommonobjectandknowledge/sharing by the said accused, but contrary alone is notsufficientto hold that the accused did not share commonobject.Surrounding circumstances and all aspects have to be considered and itis not necessary for the prosecution to establish any specific overtaction in all cases. (See Daya Kishan v. State of Haryana (2010) 5see 81, State of U.P. v. Krisltanpal and Ors. (2008) 16 See 73 andCRL.A. No. 1490/2011+connected mattersPage 32 of40 of40

Page 32 of40 of40

Amerika Rai and Ors. v. State of Bihar (2011) 4 SCC 677).It isobligatory on the part of the Court to examine the entire evidence andtake holistic and pragmatic view.Compendium of aspects likepersons, who had joined the assembly, the weapons with the membersof the assembly, the nature of injuries suffered, behaviour and act,before or after the scene of incident, etc. are relevant.Further, it is forthe prosecution to prove against the person, who is alleged to be amemberof unlawfiilassembly, that he was one of the personsconstituting the unlawful assembly and entertained, along with othermembers, the common object or loiowledge, as defined in Section 141,149 IPC etc.

33.As noticed above. Section 149 readwith 141 IPC consists of twoparts. The first part criminalises and mandates punishment, when anoffence is committed in prosecution of the common object and whenthe offence is committed with view to accomplish the said object. Insuch cases, the offence committed must connect or have direct orimmediate nexus with the common object of the unlawful assembly,ofwhich the accused was member. The second part of Section 149 IPCis wider and consists of offences which are such as the member knewwas likelyto be committed. Thus, memberof the unlawfiilassemblyshall be held liable if he knew that an offence, which he may not share,CRL.A.No. 1490/2011+connectedmattersPage 33of40

was likely to be committed in prosecution of the common object.Theexpression "knows" does not refer to mere possibility which might ormight not happen, but cases where it can be ascertained that theaccused had positive knowledge that such an offence was likely to becommitted.(See Cikkarange Gowda v. State ofMysore, AIR 1956 SC731).

34.When there are group of assailants and offence is committed, itis difficult to accurately ascribe, with certainty, the part played by eachone of the assailants.In the actual occurrence, the perpetrators actswiftly and the visions or the recollection of the witnesses of the scenesmay get blurred and need not be precise or photogenic.This will beasking for the impossible.It will be impracticable.It is, therefore,necessarytoanalyzetheevidencecarefullyandnotrejectthestatements of the victims or eye-witnesses on the ground that they lackexact precision, with regard to the overt act attributed to each assailant.If witness speaks about the occurrence well and his evidence istruthful and correct, it should not be rejected.The testimonies of thewitnesses have to be viewed from broad perspective, in pragmaticmanner, and not from dogmatic point of view. (See observations ofthe Supreme Court in Modh. Sayeed v. State of M.P. (2010) 10 SCC259).

CRL.A. No. 1490/2011+connected matters

Page 34 of 40

35.There is substantial evidence that, after the initial quarrel, Kalualong with his associates, came back, in the Canter and attacked PWs -1 to PW-3, Dushyant and Parvesh Badana.The number of assailantswas clearly more than five.Common object, therefore, was that theunlawftil assembly consisting of assailants and Kalu had come toattack PW-1, 2, 3, Dushyant and Parvesh Badana.There is evidenceon record to show that, at least, Kalu had an iron rod with him and hadhit Dushyant with the said rod on the head and the back. The medicalevidence i.e. the post mortem report Ex. PW-17/A is conclusive thatDusyant died as result of the said injuries caused. Intention to causethe said injuries, on the part of the appellant Kalu, is established andproved beyond doubt.The fact that the iron rod was part of the truckequipment, i.e. jack, is immaterial, when we examine the conduct ofthe appellantKalu.The conviction of the appellant-Kalu,underSections 302 and 148 IPC is, therefore, justified and correct.

36.The next question is whether the appellant-Balrajand Ashokshared the common object, to commit murder or that they Icnew thatthe offence of murder was likely to be committed in prosecution of thecommon object.We have noticed the factual position.It cannot besaid with certainty that Balraj and Ashok were in the truck, when thelift was taken by PW-1, 2, 3, Dushyant and Parvesh Badana, at KalkajiCRL.A. No. 1490/201 l+connected mattersPage 35 of 40 of 40 40

Page 35 of 40 of 40 40

Temple, but they were part of the unlawful assembly, which hadattacked them subsequently.Kalu had an iron rod with him, whereasAshok and Balraj had 'dandas'with them.Dushyant had sufferedextensiveinjuriesin the said attack and ultimatelydied.Injuriessuffered by Ashok, however, are simple in nature.We have set aside9the conviction of the appellants under Section 307 IPG on account ofthe injuries caused to Ashok and converted the conviction to one underSection 323 IPG.It is noticeablethat PW-1 and 2 went back to theirhouses and did not report the matter to the police at least till 10-10.30P.M.Both of them did not suffer injuries.Even Ashok did not go topolice and was rather ambiguous when the MLC (Ex. PW12/A) wasrecorded. Gause of the injuries on Ashok, as recorded in the MLG, iscontradictory.The possible and true explanation is that they did notperceive or think that Dushyant was brutally beaten up, injured andwould lose his life.How and who had taken PW-3 to the hospital isnot clear.We have held that PW-7 had taken PW-3 to the hospital.PW-3 claims that he had become unconscious, but the hospital recordsdo not state so. MLG (Ex. PW-12/A) clearly states that the PW-3 wasbrought by relative, suggesting PW-7. As per PW-3, he had becomeunconscious after the beating. PW-3 was certainly not beaten to deathoand did not suffer grievous or serious injuries.He was not attacked

and beaten up in the same brutal manner as Dushyant, though, he statesthat he had not managed to run away like PW-1 and 2.

37.PW-1, 2 and 3 have testified that Kalu had used the words "marosalo ko", but this does not necessarily mean "kill them".It can alsomean "hit them".InAjay Sharma v. State ofRajasthan, AIR 1998 SC2798, it was observed that the word "maro" does not mean to kill, butcan also mean to attack or strike.

38.In these circumstances, we are of the view that the prosecutionhas not been able to establishthat the appellantsBalraj and Ashokshared the common object to commit murder. It is perceptible thatKalu was abused and possibly man handled by the deceased, and thefour others, who were with him. He wanted to take revenge and teacha lesson to Dushyant, PW-1 to PW-3 and Praveen Bhadhana.Heaccordingly instigated and asked the other assailants to join andaccordingly they traced out and confronted them.Thus, commonobject of the members of the unlawful assembly is estabUshedbut thedebate is whether the common object was to commit murder ormembers of the unlawful assembly knew and had positive knowledgethat some other offence, which they may not share was likely to becommitted, and if so then what was the nature of the said offence. It isapparentthat PW-1 and PW-2 managed to escape and were not hurt.

Pravesh Bhadana was also not hurt.Ashok (PW-3) suffered minorsimple injuries.Four of them did not possibly feel that the assailantswanted to murder or kill Dushyant.From the appellants Ashok andBalraj, "dandas" have been recovered.Kalu no doubt used an iron rod,which was used with the jack of the truck, but it is possible to arguethatthesaidrodwasavailablein theCantertruckandthetwoappellants Balraj and Ashok may not be aware when they becamemember of the assembly, that Kalu would use the iron rod and hitDushyant on the head. From the conduct of the assailants, before,during and after the attack, it cannot be said with reasonable certaintythat the unlawful assembly knew that it was likely that some of themembers had the intention to cause bodily injury, which in ordinarycourseof nature,wouldhavecaused deathor, intentionto causeinjuries, which could have resulted in death or murder.The nextquestion is whether they knew that "murder" was likely.It is aborderline case, as one cannot say with certainty that "murder" waslikely.Difference between culpable homicide and murder, asunderstood and defined in Section 300 IPG, is well recognized andaccepted in the statute and legal decisions. In the facts of the presentcase, the appellant Balraj and Ashok cannot be attributed with theloiowledge that the mob was likely to cause death or with the

CRL.A, No. 1490/2011+connectedmatters

knowledge thatthey would act in an imminently dangerous mannerthat the death was must.They did not share the common object i.e.intention to commit murder or intention to cause injuries, which wouldin ordinary course of nature cause death or with the intention to causedeath. The Appellants Balraj and Ashok are convicted under Section304 Part II, IPC. They are sentenced to eight years of rigorousimprisonment. In addition they will be liable to pay fine of Rs.10,000/-each and in default of payment of fine they will undergo simpleimprisonment for two months. Their conviction under Section 148 ismaintained.

39.In view of the aforesaid findings, it is held that Kalu has beenrightlyconvictedunder Section 302 -IPC and Section148 IPC.Sentences of life imprisonment and three years and fine of Rs. 10,000/-and Rs.1,000/-, respectively are confirmed. In default of payment offine, he shall undergo simple imprisonment for period of 2 monthsand 1 week respectively.

40.Conviction of the appellants Kalu,-Balraj and Ashok, for causinginjuries to injured Ashok, under Section 307 IPC read with Section 149IPC is converted to Section 323 read with Section 149 IPC.Theyshall be sentenced to rigorous imprisonment for period of one yearand fine of Rs.4,000/- each for the said offence and in default ofCRL.A. No. 1490/2011+connectedmattersPage 39 of 40

payment of fine, they shall suffer simple imprisonment for period offour weeks.The sentences awarded shall run concurrently and theappellants shall be entitled to benefit under Section 428 Cr.P.C. Theappeals are disposed of. • •

(SANJIVKHANNA)JUDGE

^rP. GARG)JUDGE

NOVEMBER 11,2012VKR/kkb/NA

CRL.A. No. 1490/2011+connectedmatters