Full Judgment Text
NonReportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2223 OF 2021
(Arising out of Petition for Special Leave to
Appeal (Criminal) Nos.89738974 of 2019)
MIHIR GOPE ETC. …APPELLANTS
VERSUS
THE STATE OF JHARKHAND …RESPONDENT
J U D G M E N T
ANIRUDDHA BOSE, J.
Leave granted.
2. Anil Mahto and Jatu Mahto had died from injuries
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received in consequence of assaults on them on 20
August, 2005 over a land related dispute. Certain other
members of the appellant’s family were also injured on
Signature Not Verified
Digitally signed by
JAGDISH KUMAR
Date: 2021.01.08
17:22:42 IST
Reason:
account of assault as a result of the same dispute. The
appellants are two sons of one Manohar Gope, with
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whom the dispute had arisen. The cause of the dispute
with the members of the deceased victims’ family is
specifically related to the construction of a hut. The
prosecution’s case is that certain members of the Gope
family were the assailants. The appellants before us are
Mihir Gope (in Petition for Special Leave to Appeal (Crl.)
No.8973 of 2019) and Prabhat Gope (in Petition for
Special Leave to Appeal (Crl.) No.8974 of 2019). They
have been held guilty by the Trial Court (Additional
Sessions Judge, Fast Track CourtIV, Bokaro) for
committing offences under Sections 341, 307, 325, and
302 read with Section 34 of the Indian Penal Code, 1860
(the Code). The Trial Court sentenced the two appellants
to undergo rigorous imprisonment for life for committing
offence under Section 302 of the Code, simple
imprisonment for a month in relation to offence under
Section 341 of the Code, rigorous imprisonment for 5
years for offence under Section 325 of the Code, and
rigorous imprisonment for 7 years for offence under
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Section 307 of the Code. The sentences had been
directed to run concurrently by the Trial Court.
Altogether five persons including the two appellants were
tried for the offences initiated by a fardbeyan of one Kasi
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Ram Mahto on 20 August 2005, being the date of
occurrence of the offence. In the depositions as
reproduced in the paperbook, he has been referred to in
some places as Kari Ram. Similarly, the deceased victim
Jatu Mahto has been referred to as Jadu, Jethu, Jattu
and Indu by different witnesses. We shall, however, refer
to them as Kasi Ram and Jatu in this judgment, ignoring
these discrepancies. None of the parties has raised any
question or dispute on this count. On the basis of the
said fardbeyan, First Information Report was registered
on the same date in Pindrajora police station of Bokaro
district in the State of Jharkhand. In this judgment, we
shall also be referring to the accused persons as also
victims and members of their family by their first names
only. Kasi Ram himself was injured in the assault. He
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was examined as Prosecution Witness no.12 in the trial.
Major part of the assault on the members of the Mahto
family, particularly on Anil, Jatu and Kasi Ram was
attributed to Manohar in the fardbeyan and the
prosecution witnesses have broadly corroborated the
content of the fardbeyan. The High Court, in appeals by
the four convicted accused persons, sustained the
judgment of conviction and orders of sentences of these
two appellants. The judgment of conviction of one of the
accused persons, Usha Devi (wife of Mihir), was set aside
by the High Court. The decision of the High Court was
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delivered on 10 October, 2018.
3. The fardbeyan was recorded at Bokaro General
Hospital (BGH). It was disclosed therein that Kasi Ram,
the informant, with his wife Puna Devi had reached the
place of occurrence at Obra Mouza from their place of
residence at Bokaro on receiving a phone call from his
brother Premchand (PW11). The phone call conveyed
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that Manohar had constructed a hut on the land of the
informant. Jatu, Anil, Premchand, Puranchand,
Dakshineshwar, Mukteshwar and Vijay all members of
the Mahto family had also reached the place of
occurrence when Kasi Ram and Puna Devi reached the
spot. On reaching the place of occurrence at about 8 a.m.
on that date, they found a hut with dalikhapra (earthen
rooftiles) on the land in question. Substantial evidence
was led before the Trial Court on title or ownership of the
land on which the hut was constructed. But that factor is
not of much relevance so far as the present appeals are
concerned, except that the construction of the hut
formed the genesis of the dispute and could be related to
motive of the crime. Manohar, the main assailant along
with his sons Mihir, Prabhat and Kailash were also at
the place of occurrence, as it transpires from the
evidence of Kasi Ram and other prosecution witnesses.
There was exchange of words mainly between Manohar
and Kasi Ram, after which Manohar had attacked Anil on
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his head with an iron rod, as a result of which Anil
collapsed on the ground and became unconscious. On
the informant’s attempt to rescue Anil, he was also
assaulted by Manohar on his hands, head, and back. As
per prosecution evidence, the three sons of Manohar
Mihir (first appellant), Prabhat (second appellant) and
Kailash were supplied with a tangi (a variant of axe),
sawal (crowbar) and a gupti (a longish sword) by Usha
Devi. Before the assault started, Kasi Ram wanted
Manohar to go to the police station with him, presumably
to sort out the dispute, but Manohar refused to go there.
Manohar had asserted that it was his land. It was at that
stage Manohar assaulted Anil on his head with the iron
rod. As regards the sequence in which the assault took
place, Kasi Ram’s evidence is that when “Indu went to tie
Anil with towel then Manohar assaulted him on head
with rod and he became injured”. The name “Indu”, as
has been recorded in the deposition of Kasi Ram (as it
appears in the paperbook) obviously refers to Jatu. In the
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sequence of events narrated by the other eyewitnesses,
being PW2, PW3, PW4, PW5, PW7 and PW11, this
particular victim has been referred to as Jatu.
4. Prosecution evidence was accepted by the Trial
Court on the aspect of description of assault by the
accused persons which resulted in death of Anil and
Jatu and also resulted in injuries to Kasi Ram,
Premchand and Puranchand. On his plea of juvenility,
the case of Kailash was separated and sent to the
Juvenile Justice Board. Usha Devi was let off by the High
Court on the reasoning that there was no allegation of
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assault by her. Anil had passed away on 20 August,
2005 itself at BGH, whereas Jatu passed away on the
st
next day, i.e. 21 August, 2005. The injured persons
were initially taken to Chas General Hospital and after
initial treatment, referred to BGH. The former has been
described as the referral hospital in course of the
proceedings before the Trial Court and the High Court.
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5. In the First Information Report, Manohar and his
three sons, Mihir, Prabhat and Kailash were named as
accused persons. After investigation, chargesheet was
submitted arraigning four of them as also Usha Devi as
accused persons. Records pertaining to Kailash were
sent to the Juvenile Justice Board. All four were
convicted and sentenced to imprisonment by the Trial
Court. We have already indicated the sentence imposed
on them.
6. The prosecution examined altogether sixteen
witnesses. Seven among them, being Puna Devi (PW2),
Puranchand (PW3), Vijay Kumar (PW4), Mukteshwar
(PW5), Dakshineshwar (PW7), Premchand (PW11) and
Kasi Ram (PW12) deposed as eyewitnesses. The autopsy
surgeon Dr. Pramod Kumar, who was examined as PW9
attributed the cause of death of the two deceased victims
to severe head injuries and excessive bleeding leading to
shock and cardio respiratory failure. In the case of Jatu,
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blood coagulate was found in pia and dura mater of skull
leading to shock and cardio respiratory failure. On
dissection of Anil’s skull, blood clots in “profuse amount”
were found in between pia and dura mater, i.e. the
membranes that envelop the brain and spinal cord and
separate them from the walls of their bony cases (skull
and vertebral column). External injury of Anil, as per
deposition of PW9 was “lacerated wound with fracture of
”
occipital bone size 4½ X 1” bone deep”. Jatu’s external
injuries were “fracture of occipital bone with swelling;
fracture of left parietal bone with lacerated wound………”.
PW13, Dr. Shishir Kumar Singh Munda had examined
Premchand (PW11, injured witness) and found his
injuries to be simple in nature caused by hard blunt
object. There were lacerated wounds on his left hand and
scalp, right fronto parietal region 2” X 1” X 1/3”. The two
other medical witnesses were Dr. Dhananjay Rajak (PW
14) and Dr. Narendra Kumar Das (PW15). Dr. Rajak had
examined Anil and Jatu on the same day at BGH. He
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found, in case of Anil, a stitched wound on occipital
parietal area 4” long. In case of Jatu, Dr. Rajak has
deposed that he found “1 stitched wound on occipital
area 3” long”. The injuries in both cases were attributed
to hard blunt object by the PW14. In case of
Premchand, he referred to the following injuries in his
statements made in course of examination :
“i. contusion left shoulder 3” X 1”
ii. contusion scapular left 8” X 1”
iii. contusion scapular region right 8” X 1/2”.
Another contusion 6” X 1”
iv. stitched wound left hand.”
The injuries of Premchand were found to be simple
in nature caused by hard blunt substance by Dr. Rajak.
Dr. Narendra Kumar Das (PW15) was the head of the
department of Neurosurgery at BGH at the material point
of time. He assessed the injuries of Anil and Jatu to be
grievous. Injury of Premchand, according to him, was
simple in nature and possibly caused by a hard and
blunt object. So far as injuries of Kasi Ram are
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concerned, Dr. Shishir Kumar Singh Munda (PW13)
deposed that he had lacerated wound on right parieatal
region and on his right palm. According to this medical
witness, both the injuries were simple in nature and
caused by hard blunt objects.
7. The assessment of injuries of Jatu, Anil and
Premchand by Dr. Narendra Kumar Das would appear
from the following part of his deposition:
“1. On 20.08.05 I was posted at BGH in
same capacity. Patient Mr. Jethu Mehto
was seen and treated by me. He was
treated for severe head injury.
2. CT scan of brain was done.
CT scan no. 22305 dated 20.08.05.
CT scan shows multiple intracelebral
hemorrhage in the left temproperital
region with fracture of left parital bone.
The nature of injury was grievous. This
report is prepared and signed by me.
Mark it as Ext. 7/5.
3. The injury may be caused by hard and
blunt object.
4. On the same day I had examined Anil
Kr. Mahto. His hospital number was
13538. He was treated for severe head
injury. CT scan brain was done. Number
is 22306 dt. 20.08.05. CT Scan shows
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multiple intra cerebral hemorrhage with
brain edema and fracture of left parital
and occipital bone. Nature of injury was
grievous possible by hard and blunt
object.
5. This report is prepared by me and
signed by me mark it as Ext. 7/6.
6. On the same day I had examined
Premchand Mahto. He was treated for
multiple injuries.
i. Head injury : CT Scan brain was
done. Number is 23307 dt.
20.08.05. CT scan shows no
evidence of intra cerebral
hemorrhage or fracture. The
nature was simple.
ii. Compound fracture of IInd
metacarpal bone left hand. Nature
was grievous possibly by hard and
blunt object. This report is
prepared by me. Mark it as Ext.
7/7.
7. The injury on the person of Jethu
Mahto may be caused if someone fall on
heavy object. There is no CT Scan
separate with this report. On the person
of Anil Mahto also the injury may be
caused due to fall, so with Premchand
Mahto.”
(quoted verbatim)
8. The depositions of the eyewitnesses for the
prosecution broadly gives the description of events that
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corresponds with the fardbeyan, but there are
discrepancies on the role of each of the accused persons
in effecting specific strikes on the victims individually.
Prosecution also sought conviction on the basis of a
confessional statement of Manohar. Prosecution case is
that Manohar’s statement led to the recovery of a sawal
and a stick from his house. There were two seizure
witnesses Laxmi Devi (PW1) and Gulichand Mahto
(PW10). The latter was presented by the prosecution as
seizure witness of bloodsoaked soil. At this stage,
however, his deposition has insignificant impact on these
appeals as prosecution has relied upon other direct
evidences, primarily eyewitness account and evidence of
the medical practitioners, and not much turns in these
appeals on recovery of bloodsoaked earth. Laxmi Devi is
the wife of Prabhat Gope. She was presented as a
witness by the prosecution on seizure of the sawal and
the stick from Manohar’s house. In her deposition,
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however, she has stated that the paper on which she had
signed was blank.
9. Two witnesses were examined by the defence, Netai
Gope and Shambhu Gope. Both of them deposed as
eyewitnesses. As recorded in the Trial Court’s judgment,
they sought to attribute the injuries to acts on the part of
the informant and his family members only. It was stated
by them that the informant and his brothers had
gathered near the hut armed with several weapons, the
likes of which we have already referred to. When they
tried to pull down the tiled hut, the defence witnesses
stated, some of the roof tiles fell on the members of the
informant’s side and that was the cause of the injuries.
The appellants sought to buttress this defence by
drawing our attention to the depositions of PW9, PW13
and PW15, all medical professionals. They stated in
their examination that the injuries treated or analysed by
them could be caused due to fall. But this opinion of the
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medical practitioners was on probable cause. The story of
accidental injuries caused by the informant’s side
themselves however was not believed by either the Trial
Court or the High Court. We do not find any flaw in the
reasoning of the two courts of fact on this aspect.
10. The question, in the given context, which falls for
determination is as to whether these two appellants can
be convicted under the aforesaid provisions of the Code.
It is a fact that all the eyewitnesses were related to the
victims, but for that very reason we cannot disbelieve
their version, particularly since the Trial Court and the
High Court found no reason to reject their evidence. The
story of the defence that the injuries of the victims were
unintentionally inflicted by falling tiles when the
members of the victims’ family were dismantling the
structure does not inspire confidence. The prosecution
witnesses have been consistent and uniform in their
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version that it was Manohar and his sons who had
caused the injuries.
11. The appellants before us are Mihir and Prabhat. The
evidence of the seven prosecution witnesses, who have
deposed as eyewitnesses, being Puna Devi (PW2), wife of
Kasi Ram (the informant), Puranchand (PW3), an
injured witness, Vijay Kumar (PW4), Mukteshwar (PW
5), Dakshineshwar (PW7), Premchand (PW11) and Kasi
Ram (PW12) are uniform in that Manohar had dealt the
first blow to Anil, followed by a blow on Kasi Ram and
thereafter on Jatu at the time the latter was attending to
injured Anil. The seven witnesses are also uniform in
saying that Manohar dealt the blows to these three
victims using an iron rod.
12. So far as Mihir and Prabhat are concerned, evidence
of Kasi Ram (PW12) is that Manohar assaulted Anil first,
then him and thereafter Jatu. He, in his deposition has
referred to sons of Manohar as “boys of Manohar”, and
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assault by them has been specified to be on Puranchand
and Premchand. PW2 has also ascribed the blows on
Anil and Jatu to Manohar. At the same time, she has
stated that Mihir had assaulted Anil and Jatu on their
heads. Assault on Anil and Jatu has also been ascribed
to Prabhat. PW2 and PW5 have stated that Usha Devi,
whose conviction was set aside by the High Court had
supplied an axe to Mihir, sawal to Prabhat, and a gupti
to Kailash. Puna Devi has deposed that Mihir as well as
Prabhat had assaulted Anil, Jatu, Premchand,
Puranchand and Kasi Ram (her husbandthe informant).
Puranchand’s (PW3) evidence is that Mihir, Prabhat and
Kailash assaulted Anil with an axe on the back of his
head. He also deposed that all the four accused had
assaulted Anil, Premchand and Jatu. To Mihir, he
attributed assault by an axe. Vijay Kumar (PW4) has
attributed collective assault to three sons of Manohar on
Jatu, Premchand and Puranchand. He also referred to
strikes by Manohar on Anil, Kasi Ram and Jatu.
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Evidence of Mukteshwar (PW5) is that Mihir assaulted
Anil and Jatu with the axe on their heads whereas
Prabhat with another brother assaulted Premchand and
Puranchand. Dakshineshwar’s (PW7) narration of the
assault in his deposition is also broadly similar whereas
Premchand (PW11) has stated that Jatu was attacked by
Mihir and Manohar using a tangi and Puranchand and
himself were attacked by Kailash and Prabhat with iron
rod. The depositions of the prosecution witnesses thus
are not uniform on the aspect of the role of these two
appellants in assaulting Anil and Jatu. Usha Devi,
against whom allegation was of supply of weapons to
Mihir, Prabhat and Kailash, has been acquitted by the
High Court.
13. Learned counsel for the appellants has stressed on
the fact that injury records of the referral hospital were
not produced or made exhibits at the stage of the trial.
But from the depositions of the four medical
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practitioners, injuries of Anil, Jatu, Kasi Ram and
Premchand are revealed. There is no medical evidence of
any injury having been caused to Puranchand. While we
analyse the evidence relating to injuries of Anil and Jatu,
we find that the autopsy surgeon (PW9) found only one
injury on the head of Anil being fractured occipital bone.
This was a lacerated wound. So far as Jatu is concerned,
we find from his deposition that he had a fractured
occipital bone with swelling and fracture of left parietal
bone with lacerated wound. Dr. Shishir Kumar Singh
Munda (PW13) had examined Premchand and found
lacerated wound on his left hand as also on his scalp in
the right fronto parietal region. He also examined Kasi
Ram and found two injuries, lacerated wound on right
parietal region and lacerated wound on the right palm.
Dr. Dhananjay Rajak (PW14) had examined Anil on the
day of occurrence at about 11.30 a.m. in the casualty
department of BGH. His deposition also reveals that Anil
had a stitched wound on the occipital parietal area. On
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Jatu, he found a 3” long stitched wound on the occipital
area. As regards injuries of Premchand, he observed
contusions and we have referred to his observations in
earlier part of this judgment. Dr. Narendra Kumar Das
(PW15) had examined Jatu, and in his deposition he has
stated that his CT scan showed multiple intracerebral
haemorrhage in the left temporoparietal region with
fracture of the left parietal bone. As regards probable
cause of the injuries, PW9 stated that injury to Anil
could be caused if he had fallen on a hard surface. Jatu’s
could have been caused if some heavy blunt object fell on
his head. Cause of the other injury to Jatu, according to
him, could occur if someone smashed on small or heavy
substance. Dr. Narendra Kumar Das (PW15) on the
other hand interpreted Jatu’s CT scan in the following
manner:
“CT scan shows multiple intracelebral
hemorrhage in the left lemproperietal region
with fracture of left partial bone…”
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14. It would be apparent from the evidence of the
medical practitioners that there was only one injury on
Anil’s head whereas on Jatu’s head, there is a probability
that he suffered two injuries. But the injuries on Jatu’s
head cannot be said to have been caused by either axe or
tangi, which are sharp edged weapons. Even if we
proceed on the basis that both axe and tangi have blunt
sides and such blunt sides were used to strike, that very
fact cannot establish involvement of both Mihir and
Prabhat in striking Anil and Jatu. Thus, we do not think
the Trial Court and the High Court had rightly concluded
on involvement of Mihir and Prabhat in assault of Anil
and Jatu so as to implicate them for murder under
Section 302 read with Section 34 of the code. The eye
witnesses’ accounts, as we have already observed shows
element of exaggeration and inconsistency in implicating
both Mihir and Prabhat for their strikes on Jatu. There is
apparent inconsistency in the eye witness account in
describing the assaults by these two appellants on Anil
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and Jatu. PW2 has attributed assault on both Anil and
Jatu to Manohar and all his sons. This is a very
generalised description. PW3 has stated that Manohar,
Mihir and Prabhat (collectively referring to them with the
pronoun “they”) had assaulted Jatu. P.W. 4’s evidence on
assault against Anil and Jatu is not specific, but general.
PW5 has stated that Mihir had assaulted Anil and Jatu,
apart from Manohar’s strikes. PW7’s deposition is that
both Mihir and Manohar struck Jatu. PW11 attributes
strike by Mihir on Jatu but he has not implicated
Prabhat in any form of assault on Anil or Jatu. Thus, if
we compare the number of injuries on Anil and Jatu as it
transpires from the evidence of medical practitioners,
which is three at the most, they do not match with the
number of strikes made by Manohar, Mihir and Prabhat,
as stated on oath by these witnesses. In our opinion, we
cannot rely on the account of assault given by these
witnesses to the extent they relate to strikes by Mihir and
Prabhat. Barring PW12, the account of the incident
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narrated by the other eyewitnesses tend to be based on
overall impression of the strikes rather than factual
narration of events. We consider it safer to rely on the
evidence of PW12, who has given specific and
trustworthy account of the individual assaults. We do not
think the prosecution has been able to prove beyond
reasonable doubt involvement of these two appellants,
Mihir and Prabhat in delivering the blows to Anil and
Jatu.
15. We also find that though there were assaults by
Manohar, Mihir and Prabhat prosecution has failed to
establish on the basis of evidence that these two
appellants shared common intention with Manohar.
Their strikes on the victims can be segregated from those
made by Manohar, as it transpires from evidence. Neither
Mihir nor Prabhat could be held to have been involved in
assault on Anil and Jatu, which forms the basis of
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conviction of the appellants under Section 302 of the
Code.
16. Relying on a decision of a coordinate Bench, Manoj
Kumar vs State of Himachal Pradesh [(2018) 7 SCC
327], it was urged on behalf of the appellants that the
offence of the appellants could be brought within
exception 4 to Section 300 of the Code and Part II of
Section 304 thereof, could be applied to the appellants.
But having regard to what we have held, the ratio of that
decision does not apply in the facts of this case.
17. We, accordingly, set aside the judgment of conviction
of Mihir and Prabhat under Section 302 read with
Section 34 of the Code and the order of sentence under
the aforesaid provisions is also set aside. As we find
from evidence of the medical professionals that injuries
on Kasi Ram and Premchand were simple in nature,
judgment of the High Court on their conviction and
sentence under Section 325 of the Code is also set aside.
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We also set aside the conviction and sentence of these
two appellants under Section 307 of the Code. We hold
so primarily on the basis of depositions of the three
medical experts, PW13 (Dr. Shishir Kumar Singh
Munda), PW14 (Dr. Dhananjay Rajak) and PW15 (Dr.
Narendra Kumar Das). Opinion of PW13, who examined
Premchand and Kasi Ram, found both their injuries to be
simple, formed of lacerated wound. In examining
Premchand, PW14’s opinion as regards nature of injury
was the same. It was simple injury. Premchand’s CT
scan, as explained by PW15, did not show any evidence
of intracerebral hemmorhage or fracture. He also found
such injury to be simple. Considering the weapons of
assault Mihir and Prabhat were meant to have had used
in inflicting such injuries, and the nature of injuries they
caused on Kasi Ram and Premchand, we do not think
the two appellants had the intention or knowledge that
their acts could have had caused death of Kasi Ram or
Premchand. We also do not find any evidence of
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commission of offence under Section 341 of the Code.
None of the eyewitnesses has stated in course of their
examination that Mihir or Prabhat had wrongfully
confined them. The appellants are accordingly acquitted
of charges under all the aforesaid provisions.
18. In our opinion, however, there is sufficient evidence
against Mihir and Prabhat of voluntarily causing hurt by
the instruments we have referred to. We have discussed
the evidence based on which we come to this conclusion.
We hold both the appellants guilty of committing offence
under Section 324 of the Code. We impose sentence of
three years rigorous imprisonment on both Mihir and
Prabhat for committing offence under the aforesaid
provision.
19. In the event the appellants or any one of them have
served out the sentence of three years of rigorous
imprisonment imposed on them in this judgment, such
appellant or the appellants, as the case may be, shall be
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set free forthwith, unless the custody of the appellants or
any one of them is required in any other case. Otherwise,
the appellants or any one of them, as the case may be,
shall serve out the remaining term.
20. The appeals are partly allowed, in the above terms.
Pending application(s), if any, stand(s) disposed of.
…..……………..J.
(N.V. Ramana)
..…..……………..J.
(Surya Kant)
……..……………..J.
(Aniruddha Bose)
New Delhi,
Dated: January 8, 2021
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