Ramesh Kumar and ors. Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/771150
SubjectCriminal
CourtRajasthan High Court
Decided OnOct-14-2008
Judge A.M. Kapadia and; Deo Narayan Thanvi, JJ.
Reported in2009CriLJ550
AppellantRamesh Kumar and ors.
RespondentState of Rajasthan
Cases Referred and of Harijan Megha Jesha v. State of Gujarat
Excerpt:
- - under this section, only those passages should be proved which clearly contradicts the testimony of this witness before the court.deo narayan thanvi, j.1. this appeal has been filed by the above five accused appellants against the judgment dt. 23.5.2002 of learned additional sessions judge no. 1, sriganganagar whereby he convicted all of them under section 302 read with section 149 ipc with imprisonment for life and to pay a fine of rs. 1000/- and in default to further undergo three months r.i. all the five accused were also convicted for the offence under section 148, ipc and sentenced to one year's r.i. along with a fine of rs. 500/- and in default to further undergo one month's r.i. both the substantive sentences were ordered to run concurrently.2. the prosecution story in nutshell is that on 7.11.2002 smt. charanjeet kaur pw 2 mother of deceased gurjant singh filed a report ex.p. 1 before the s.h.o. police station kotwali ganganagar that she is living at sethia farm opposite the sweet pills factory. her husband gulwant singh is employed in rajasthan home guard and daughter was blessed with a baby about 4-5 days back. her son gurjant singh aged 22 years is also working in rajasthan home guards. accused appellant atma ram who used to reside 7-8 years back as her neighbour, started coming to her house two years back with fellow persons. on account of their family having young daughters, they objected. upon objection, the quarrel took place between accused atma ram and his son gurjant for which accused atma ram filed a case against her son gurjant at the police station and since then, accused atma ram developed enmity with her son gurjant. on the preceding day at 8 p.m. accused appellants atma ram manoj. and heeralal abused her son gurjant and today in the morning at 9 a.m., when gurjant went out for ironing his clothes, then one guddi came to her and told that her son was being beaten at bhagwandas chowk near the shop of raju dhobi. upon hearing this she went at the spot. accused-appellants including one babu were having knives, hockies and lathis in their hands. accused appellant atma ram inflicted a knife blow on the stomach of her son gurjant. when she rushed and caught accused atma ram then babu, brother of accused atma ram inflicted a hockey blow on her right hand and second blow at her back whereupon she fell down, thereafter gurjant ran away from the spot and entered into the compound of a house, where all the accused-appellants including babu inflicted blows to gurjant with knife, hockey and lathis. when she shouted mani ram and satpal came on the spot and on seeing them, the accused ran away by that time, shivdarshan and ravindra bakshi came there and took her son in their vehicle to the hospital where he died. upon this report, the fir being no. 390/2000 was registered and the police commenced investigation. during the course of investigation, the accused were arrested and on their informations, recoveries of weapons were made. the recovered blood-stained clothes and weapons were sent for chemical examination. after investigation, all the five accused appellants were charge sheeted by the police under sections 147, 148, 323 and 302 read with section 149 ipc in the court of c.j.m. sri ganganagar who committed the case to the court of sessions. learned addl. sessions judge no. l sri ganganagar after hearing the arguments on charge framed charges under sections 148, 302 read with section 149 and 323 read with section 149, ipc against all the five accused, to which they pleaded not guilty. the prosecution examined 12 witnesses. the statements of the accused were recorded under section 313, cr.p.c. they produced mani ram dw-1 in their defence. after hearing the final arguments the learned trial judge acquitted all the accused appellants under section 323 read with section 149, ipc but convicted them for the offences under sections 148 and 302 read with section 149 ipc as above. being aggrieved by the judgment of the learned trial judge this appeal has been preferred.3. learned counsel appearing on behalf of the accused-appellants have drawn our attention to the 3 testimony of eye witnesses smt. charanjeet kaur pw-2 and satpal pw-5, mother and maternal uncle of deceased-gurjant respectively and submitted that from the evidence of these two witnesses, neither any common object nor common intention is established to kill deceased-gurjant. according to the learned counsel, the enmity of deceased gurjant was with accused-appellant atma ram, who filed a case against the deceased and the evidence against him is that he inflicted knife blow on the stomach of deceased but this knife has been recovered from accused-ramesh kumar who is brother of accused appellant atma ram. satpal pw- 5 has stated in his police statement ex.d-2 that a knife blow was given by accused ramesh kumar and not by accused-atma ram but in the court statement, he named both the accused atma ram and ramesh kumar in inflicting knife blows. the mother of deceased namely smt. charanjeet kaur who reached later as per the version of satpal, pw-5 has stated that knife blow was given by accused atma ram but knife has not been recovered from accused atma ram and on the contrary, the recovery from accused-atma ram is of 'dang' (stick). it has been further argued by the learned counsel for the accused appellants that another eye witness, as stated in the fir ex.p. 1 is mani ram but he has not been examined by the prosecution and per contra, he has been produced by the defence as dw-1 and he has not named the accused-appellants in inflicting any blow on the person of deceased gurjant. according to the learned counsel the police has prepared fake inquest memo, recovery memos and informations of the accused which is recorded after five days of their arrest. the fir is also ante dated. therefore, according to the' learned counsel the investigation has not been conducted in a fair manner and accused appellants are entitled to the benefit of doubt. learned counsel has also placed reliance on certain decisions on the question of altering conviction from section 302 to section 304 part-ii ipc, as there being only one knife blow so as to bring the case under clause iv of section 300, ipc. learned counsel has further drawn the attention of this court that while recording statements of the accused under section 313, cr.p.c. no question was put to them with regard to the fsl report.4. per contra learned public prosecutor has supported the judgment of the learned trial court.5. we have re-appreciated the evidence brought on record and taken into consideration the reasons assigned by the learned trial judge while convicting the accused-appellants. first we propose to discuss the applicability of common object or common intention in the present case. the common object punishable under section 149 ipc is established when there is an unlawful assembly of five or more persons and they act conjointly. section 149, ipc makes every member of an unlawful assembly guilty and it is based on the principle of vicarious liability. the crux of this constructive or vicarious liability is established by simple membership of such assembly with the requisite common object or knowledge, whereas in common intention it is not necessary that the members must be five or more, even they may be less but it requires a prior concert and a common meeting of mind before committing an act.6. in the present case, the fir ex.p.1 shows that there were six persons, who participated in the crime by causing injuries on the persons of deceased-gurjant. out of six, babu had not been chargesheeted and name of accused-appellant manoj agrawal has been written as manoj arora in f.i.r., ex.p.1. when a specific question was asked to. informant smt. charanjeet kaur, pw-2 about this accused-manoj, she stated in her cross examination that she was not knowing manoj prior to the incident and she stated in her statement before the police as his name to be manoj arora but according to her, manoj bansal is also known as manoj arora. she further stated that aunt of manoj is residing as her neighbour where manoj used to come. in her examination-in-chief she has not assigned any specific role of manoj except that he was one of the five accused present in the court. satpal pw-5 who is another eye witness of the case has stated in the last line of the cross examination that manoj is 'baniya agrawal' and not manoj arora or bansal. this type of contradictory statement with regard to identity of an accused especially when no test identification parade has been conducted creates heavy doubt as to whether the present accused-manoj agrawal was a member of the assembly or someone else in surname with initial as manoj especially when no overt act has been shown from his side. mere recovery of a 'dang' (stick) which has no blood-stains as per the fsl report ex.p. 43, is not sufficient to convict an accused under section 149, ipc as the recovery is a corroborative evidence. when the presence of manoj is doubtful on account of lack of identification, then there remains only four accused and a case of unlawful assembly punishable under section 149, ipc is not made out.7. taking the case of common intention it may be of two or more persons but as discussed above in the present case the only knife blows are said to have been given by accused atma ram and ramesh as revealed from the testimony of smt.charanjeet kaur, pw 2 and satpal, pw 5. both these eyewitnesses have nowhere stated any role of accused appellants manoj, heeralal and vipin. their role is confined only with regard to the informations furnished by them under section 27 of the evidence act and recovery of sticks in pursuance to the said informations which were not found with blood stains in fsl report ex.p.43. though in the present case the accused have not been charged under section 34 ipc but when a charge is framed under section 149 ipc, the conviction under section 34 ipc if proved, can be recorded. to constitute an offence of common intention punishable under section 34 ipc the prosecution must come out with a positive evidence that there was prearranged plan or conspiracy. as held by various judicial pronouncements, the common intention requires participation in an act with a common intention but in the present case, as discussed above, the act of preplan or participation is lacking in the case of accused-manoj, heeralal and vipin. ofcourse the role of accused-ramesh has been assigned by both the eye witnesses smt.charanjeet kaur, pw 2 and satpal, pw 5 but their common intention to kill the deceased-gurjant singh has not been established. the genesis of crime is the lodging of a criminal case by accused atma ram against the deceased-gurjant as per the f.i.r. and in the statement of smt.charanjeet kaur, she stated that the accused-atma ram used to reside as their neighbour 7-8 years back and in the preceding two years of the incident, he used to visit the house of the deceased to see young girls of their family. this resulted in objection from the side of deceased's family and quarrel took place between him and deceased. when deceased went at the shop of raju dhobi for ironing his clothes, the accused-atma ram came there with knife and inflicted blow into the stomach of gurjant. thereafter, accused-ramesh also inflicted knife blow when he came out. no overt act of rest of the accused has been shown except that of babu who inflicted injuries on the person of smt. charanjeet kaur but this babu has not been chargesheeted by the police and rest of the accused who are alleged to have inflicted blows have been acquitted for the offence under section 323, ipc. in this way neither common object nor common intention is proved.8. now remains the part played by accused-atma ram and ramesh kumar it is true that knife has not been recovered from the possession of accused-atma ram but it has been recovered from the possession of accused ramesh kumar in pursuance to the information furnished by him under section 27 of the evidence act as stated above this knife has been found to be stained with ' b' blood group being article-13 in the fsl report, ex.p.43 and 'chaddar' (article 3) kamij (article 11) and pant (article 12) of decreased gurjant were also found to be stained with 'b' blood group. this fsl report and the blood group shows that deceased-gurjant had a homicidal death and the knife has been recovered from accused ramesh kumar and stick has been recovered from accused atma ram, there is of course contradiction in the statement of satpal, pw 5 with regard to inflicting knife blow because in the court statement he has stated that it was accused atma ram who inflicted knife blow on the stomach of gurjant but in his police statement ex.d.2 he stated that accused ramesh inflicted knife blow on the right side of the stomach of deceased gurjant but this portion has not been specifically contradicted, except the portion ' a to b' i.e. stick in the hand of accused atma ram in portion 'g to h', he has specifically stated that ail the five were having knives and sticks in their hands and inflicted blows on gurjant singh. when a portion of previous statement has not been specifically contradicted, this cannot be termed as contradiction with the court statement. in court statement of satpal, pw 5, he has specifically stated that accused atma ram inflicted knife blow on the stomach of gurjant and when he came out ramesh also inflicted knife blow. not naming accused atma ram in previous statement by this witness can be termed as a simple omission which is distinguishable from contradiction'. the omission is defined under section 33 of the indian penal code, which denotes intentional or unintentional non-action, which can be termed as forbearance or in the language of the criminal procedure code as an omission which if illegal is comprised with an act whereas section 145 of the indian evidence act lays down the procedure by which a witness may, in cross examination be contradicted by confronting him with his previous statement in writing or reduced into writing, which is not required to be shown to him. the object of this section is to give a chance to the witness of explaining the discrepancy or inconsistency in his previous statement and the later statement. under this section, only those passages should be proved which clearly contradicts the testimony of this witness before the court. the whole statement is not required to be put for the purpose of contradiction. therefore 'omission' is distinguishable from contradiction.9. with regard to accused atma ram, who was having previous enmity with the deceased-gurjant as discussed above, smt.charanjeet kaur, pw 2 has also stated that accused atma ram inflicted blow with knife in the stomach of his son deceased gurjant. she came little later or at the moment, is immaterial as she is a witness of crime. of course one of the eye-witnesses mani ram has not been examined by the prosecution and he has been produced by the defence as dw 1 but this cannot throw away the entire case of the prosecution, in a criminal trial, a witness may be, as we commonly feel tutored or won over. the same is the case with mani ram dw 1. the testimony of smt.charanjeet kaur, pw 2 and satpal, pw 5, who are the eye witnesses of the scene of the crime dearly demonstrates that it was accused atma ram who wanted to take revenge from gurjant and had the intention to kill the deceased. a knife is a deadly weapon and the injury inflicted with this weapon is on the vital part which according to the dr. indrapal singh pw 3 is sufficient in the ordinary course of nature to cause death as per the post mortem report conducted by this witness. this injury was incised wound measuring 1' x 1/2' x cavity deep in front of right lower chest near sternum and as a result of this there was a fracture of sixth and seventh ribs of the right side. when this injury was caused by accused-atma ram and it was sufficient in the ordinary course of nature to cause death as per the doctor, the only inference which can be drawn with irresistible conclusion is that the author of this injury was accused-atma ram who had an intention to kill deceased gurjant. his case neither falls under any of the exception of section 300, ipc nor it is a case of inflicting injury with any knowledge or likelihood of causing death, we are, therefore of the opinion that the learned trial judge has rightly convicted accused appellant atma ram under section 302 ipc.10. so far as accused-ramesh kumar is concerned, when common intention has not been established and as per the statement of satpal pw 5 he, too inflicted blow with knife which has been recovered in pursuance to his information furnished under section 27 of the evidence act and also from the statement of smt.charanjeet kaur pw 2 that when his son gurjant tried to run away after sustaining knife blow inflicted by accused-atma ram ramesh also inflicted knife blow, it goes to show that accused ramesh was having knowledge that by inflicting such second blow deceased gurjant will be killed. therefore, his case falls under section 304, part ii ipc. in the absence of any premeditation of mind with his brother accused atma ram he cannot be convicted under section 302, ipc with the aid of section 34 i.p.c.11. as discussed above, the prosecution has not established any overt act or any common intention or any common object with regard to rest of the three accused appellants viz vipin manoj and heeralal, their conviction under section 302 ipc read with section 149 & section 148 ipc cannot be sustained.12. the last contention of the learned counsel is that a question was not put to accused under section 313, cr.p.c. with regard to the fsl report is also devoid of force because under section 293 cr.p.c, such report is admissible and no formal proof is required. the case of shaikh mohammed salim karimullah and ors. v. state of maharashtra reported in : 1998(5)bomcr750 cited by the learned counsel for the accused appellants is distinguishable from the facts of the present case because in the cited case the circumstances with regard to the blood group on the clothes as that of the deceased were not put to the accused under section 313 crpc this decision of the bombay high court was based on the earlier decision of the hon'ble supreme court in the case of sharad v. state of maharashtra reported in : 1984crilj1738 and of harijan megha jesha v. state of gujarat reported in : 1979crilj1137 . this view was taken by the hon'ble supreme court on the ground that in harijan megha jesha's case (supra), the trial court acquitted the accused appellant. whereas in the present case malkhana in-charge vijay kumar, pw 12 has been produced by the prosecution and a question has been put that he sent the sealed packets from malkhana to f.s.l. the report of which is admissible under section 293 crpc as stated above. the. rest of the cases cited by the learned counsel for the accused appellants are with, regard to altering conviction from section 302 ipc to section 304 part i or part ii ipc but as discussed above the facts of the present case and the circumstances under which a knife blow has been inflicted on the vital part i.e. stomach resulting in fracture of sixth and seventh ribs of deceased gurjant. it is not a case which may be treated to be under any exception of section 300 ipc or of knowledge.13. consequently we allow this appeal in part. while maintaining conviction of accused-atma ram and sentence of life imprisonment along with a fine of rs. 1000/ - & in default to further undergo three months r.i. for the offence under section 302 ipc recorded vide judgment dt. 23.5.2002 by learned additional sessions judge no. 1 sriganganagar, he is acquitted under section 148 ipc. he is in jail he will serve out the remaining part of the sentence awarded. so far as accused ramesh kumar is concerned, his conviction is altered from section 302/149 ipc to section 304 part ii ipc and for that he is sentenced to the period already undergone which is more than five years but he is also acquitted under section 148 ipc. however the order of fine shall remain intact. as regards appellants vipin manoj and heeralal their conviction and sentences recorded under sections 302/149 and 148 ipc are set aside and they are acquitted of the charges levelled against them. appellant vipin is in jail, he shall be released forthwith, if not required in any other case. appellant manoj and heeralal are on bail their bail bonds stand cancelled.
Judgment:

Deo Narayan Thanvi, J.

1. This appeal has been filed by the above five accused appellants against the judgment dt. 23.5.2002 of learned Additional Sessions Judge No. 1, Sriganganagar whereby he convicted all of them under Section 302 read with Section 149 IPC with imprisonment for life and to pay a fine of Rs. 1000/- and in default to further undergo three months R.I. All the five accused were also convicted for the offence under Section 148, IPC and sentenced to one year's R.I. along with a fine of Rs. 500/- and in default to further undergo one month's R.I. Both the substantive sentences were ordered to run concurrently.

2. The prosecution story in nutshell is that on 7.11.2002 Smt. Charanjeet Kaur PW 2 mother of deceased Gurjant Singh filed a report Ex.P. 1 before the S.H.O. Police Station Kotwali Ganganagar that she is living at Sethia Farm opposite the Sweet Pills factory. Her husband Gulwant Singh is employed in Rajasthan Home Guard and daughter was blessed with a baby about 4-5 days back. Her son Gurjant Singh aged 22 years is also working in Rajasthan Home Guards. Accused appellant Atma Ram who used to reside 7-8 years back as her neighbour, started coming to her house two years back with fellow persons. On account of their family having young daughters, they objected. Upon objection, the quarrel took place between accused Atma Ram and his son Gurjant for which accused Atma Ram filed a case against her son Gurjant at the Police Station and since then, accused Atma Ram developed enmity with her son Gurjant. On the preceding day at 8 p.m. accused appellants Atma Ram Manoj. and Heeralal abused her son Gurjant and today in the morning at 9 a.m., when Gurjant went out for ironing his clothes, then one Guddi came to her and told that her son was being beaten at Bhagwandas Chowk near the shop of Raju Dhobi. Upon hearing this she went at the spot. Accused-appellants including one Babu were having knives, hockies and lathis in their hands. Accused appellant Atma Ram inflicted a knife blow on the stomach of her son Gurjant. When she rushed and caught accused Atma Ram then Babu, brother of accused Atma Ram inflicted a hockey blow on her right hand and second blow at her back whereupon she fell down, Thereafter Gurjant ran away from the spot and entered into the compound of a house, where all the accused-appellants including Babu inflicted blows to Gurjant with knife, hockey and lathis. When she shouted Mani Ram and Satpal came on the spot and on seeing them, the accused ran away by that time, Shivdarshan and Ravindra Bakshi came there and took her son in their vehicle to the hospital where he died. Upon this report, the FIR being No. 390/2000 was registered and the police commenced investigation. During the course of investigation, the accused were arrested and on their informations, recoveries of weapons were made. The recovered blood-stained clothes and weapons were sent for chemical examination. After investigation, all the five accused appellants were charge sheeted by the police under Sections 147, 148, 323 and 302 read with Section 149 IPC in the court of C.J.M. Sri Ganganagar who committed the case to the Court of Sessions. Learned Addl. Sessions judge No. l Sri Ganganagar after hearing the arguments on charge framed charges under Sections 148, 302 read with Section 149 and 323 read with Section 149, IPC against all the five accused, to which they pleaded not guilty. The prosecution examined 12 witnesses. The statements of the accused were recorded under Section 313, Cr.P.C. They produced Mani Ram DW-1 in their defence. After hearing the final arguments the learned trial Judge acquitted all the accused appellants under Section 323 read with Section 149, IPC but convicted them for the offences under Sections 148 and 302 read with Section 149 IPC as above. Being aggrieved by the judgment of the learned trial Judge this appeal has been preferred.

3. Learned Counsel appearing on behalf of the accused-appellants have drawn our attention to the 3 testimony of eye witnesses Smt. Charanjeet Kaur PW-2 and Satpal PW-5, mother and maternal uncle of deceased-Gurjant respectively and submitted that from the evidence of these two witnesses, neither any common object nor common intention is established to kill deceased-Gurjant. According to the learned Counsel, the enmity of deceased Gurjant was with accused-appellant Atma Ram, who filed a case against the deceased and the evidence against him is that he inflicted knife blow on the stomach of deceased but this knife has been recovered from accused-Ramesh Kumar who is brother of accused appellant Atma Ram. Satpal PW- 5 has stated in his police statement Ex.D-2 that a knife blow was given by accused Ramesh Kumar and not by accused-Atma Ram but in the court statement, he named both the accused Atma Ram and Ramesh Kumar in inflicting knife blows. The mother of deceased namely Smt. Charanjeet Kaur who reached later as per the version of Satpal, PW-5 has stated that knife blow was given by accused Atma Ram but knife has not been recovered from accused Atma Ram and on the contrary, the recovery from accused-Atma Ram is of 'Dang' (stick). It has been further argued by the learned Counsel for the accused appellants that another eye witness, as stated in the FIR Ex.P. 1 is Mani Ram but he has not been examined by the prosecution and per contra, he has been produced by the defence as DW-1 and he has not named the accused-appellants in inflicting any blow on the person of deceased Gurjant. According to the learned Counsel the police has prepared fake inquest memo, recovery memos and informations of the accused which is recorded after five days of their arrest. The FIR is also ante dated. Therefore, according to the' learned Counsel the investigation has not been conducted in a fair manner and accused appellants are entitled to the benefit of doubt. Learned Counsel has also placed reliance on certain decisions on the question of altering conviction from Section 302 to Section 304 Part-II IPC, as there being only one knife blow so as to bring the case under clause IV of Section 300, IPC. Learned Counsel has further drawn the attention of this Court that while recording statements of the accused under Section 313, Cr.P.C. no question was put to them with regard to the FSL report.

4. Per contra learned Public Prosecutor has supported the judgment of the learned trial court.

5. We have re-appreciated the evidence brought on record and taken into consideration the reasons assigned by the learned trial Judge while convicting the accused-appellants. First we propose to discuss the applicability of common object or common intention in the present case. The common object punishable under Section 149 IPC is established when there is an unlawful assembly of five or more persons and they act conjointly. Section 149, IPC makes every member of an unlawful assembly guilty and it is based on the principle of vicarious liability. The crux of this constructive or vicarious liability is established by simple membership of such assembly with the requisite common object or knowledge, whereas in common intention it is not necessary that the members must be five or more, even they may be less but it requires a prior concert and a common meeting of mind before committing an act.

6. In the present case, the FIR Ex.P.1 shows that there were six persons, who participated in the crime by causing injuries on the persons of deceased-Gurjant. Out of six, Babu had not been chargesheeted and name of accused-appellant Manoj Agrawal has been written as Manoj Arora in F.I.R., Ex.P.1. When a specific question was asked to. informant Smt. Charanjeet Kaur, PW-2 about this accused-Manoj, she stated in her cross examination that she was not knowing Manoj prior to the incident and she stated in her statement before the police as his name to be Manoj Arora but according to her, Manoj Bansal is also known as Manoj Arora. She further stated that aunt of Manoj is residing as her neighbour where Manoj used to come. In her examination-in-chief she has not assigned any specific role of Manoj except that he was one of the five accused present in the court. Satpal PW-5 who is another eye witness of the case has stated in the last line of the cross examination that Manoj is 'Baniya Agrawal' and not Manoj Arora or Bansal. This type of contradictory statement with regard to identity of an accused especially when no test identification parade has been conducted creates heavy doubt as to whether the present accused-Manoj Agrawal was a member of the assembly or someone else in surname with initial as Manoj especially when no overt act has been shown from his side. Mere recovery of a 'Dang' (stick) which has no blood-stains as per the FSL report Ex.P. 43, is not sufficient to convict an accused under Section 149, IPC as the recovery is a corroborative evidence. When the presence of Manoj is doubtful on account of lack of identification, then there remains only four accused and a case of unlawful assembly punishable under Section 149, IPC is not made out.

7. Taking the case of common intention it may be of two or more persons but as discussed above in the present case the only knife blows are said to have been given by accused Atma Ram and Ramesh as revealed from the testimony of Smt.Charanjeet Kaur, PW 2 and Satpal, PW 5. Both these eyewitnesses have nowhere stated any role of accused appellants Manoj, Heeralal and Vipin. Their role is confined only with regard to the informations furnished by them under Section 27 of the Evidence Act and recovery of sticks in pursuance to the said informations which were not found with blood stains in FSL Report Ex.P.43. Though in the present case the accused have not been charged under Section 34 IPC but when a charge is framed Under Section 149 IPC, the conviction Under Section 34 IPC if proved, can be recorded. To constitute an offence of common intention punishable Under Section 34 IPC the prosecution must come out with a positive evidence that there was prearranged plan or conspiracy. As held by various judicial pronouncements, the common intention requires participation in an act with a common intention but in the present case, as discussed above, the act of preplan or participation is lacking in the case of accused-Manoj, Heeralal and Vipin. Ofcourse the role of accused-Ramesh has been assigned by both the eye witnesses Smt.Charanjeet Kaur, PW 2 and Satpal, PW 5 but their common intention to kill the deceased-Gurjant Singh has not been established. The genesis of crime is the lodging of a criminal case by accused Atma Ram against the deceased-Gurjant as per the F.I.R. and in the statement of Smt.Charanjeet Kaur, she stated that the accused-Atma Ram used to reside as their neighbour 7-8 years back and in the preceding two years of the incident, he used to visit the house of the deceased to see young girls of their family. This resulted in objection from the side of deceased's family and quarrel took place between him and deceased. When deceased went at the shop of Raju Dhobi for ironing his clothes, the accused-Atma Ram came there with knife and inflicted blow into the stomach of Gurjant. Thereafter, accused-Ramesh also inflicted knife blow when he came out. No overt act of rest of the accused has been shown except that of Babu who inflicted injuries on the person of Smt. Charanjeet Kaur but this Babu has not been chargesheeted by the police and rest of the accused who are alleged to have inflicted blows have been acquitted for the offence Under Section 323, IPC. In this way neither common object nor common intention is proved.

8. Now remains the part played by accused-Atma Ram and Ramesh Kumar It is true that knife has not been recovered from the possession of accused-Atma Ram but it has been recovered from the possession of accused Ramesh Kumar in pursuance to the information furnished by him under Section 27 of the Evidence Act As stated above this knife has been found to be stained with ' B' blood group being Article-13 in the FSL Report, Ex.P.43 and 'Chaddar' (Article 3) Kamij (Article 11) and pant (Article 12) of decreased Gurjant were also found to be stained with 'B' blood group. This FSL Report and the blood group shows that deceased-Gurjant had a homicidal death and the knife has been recovered from accused Ramesh Kumar and stick has been recovered from accused Atma Ram, There is of course contradiction in the statement of Satpal, PW 5 with regard to inflicting knife blow because in the court statement he has stated that it was accused Atma Ram who inflicted knife blow on the stomach of Gurjant but in his police statement Ex.D.2 he stated that accused Ramesh inflicted knife blow on the right side of the stomach of deceased Gurjant but this portion has not been specifically contradicted, except the portion ' A to B' i.e. stick in the hand of accused Atma Ram In portion 'G to H', he has specifically stated that ail the five were having knives and sticks in their hands and inflicted blows on Gurjant Singh. When a portion of previous statement has not been specifically contradicted, this cannot be termed as contradiction with the court statement. In court statement of Satpal, PW 5, he has specifically stated that accused Atma Ram inflicted knife blow on the stomach of Gurjant and when he came out Ramesh also inflicted knife blow. Not naming accused Atma Ram in previous statement by this witness can be termed as a simple omission which is distinguishable from contradiction'. The omission is defined under Section 33 of the Indian Penal Code, which denotes intentional or unintentional non-action, which can be termed as forbearance or in the language of the Criminal Procedure Code as an omission which if illegal is comprised with an act whereas Section 145 of the Indian Evidence Act lays down the procedure by which a witness may, in cross examination be contradicted by confronting him with his previous statement in writing or reduced into writing, which is not required to be shown to him. The object of this Section is to give a chance to the witness of explaining the discrepancy or inconsistency in his previous statement and the later statement. Under this Section, only those passages should be proved which clearly contradicts the testimony of this witness before the Court. The whole statement is not required to be put for the purpose of contradiction. Therefore 'omission' is distinguishable from contradiction.

9. With regard to accused Atma Ram, who was having previous enmity with the deceased-Gurjant as discussed above, Smt.Charanjeet Kaur, PW 2 has also stated that accused Atma Ram inflicted blow with knife in the stomach of his son deceased Gurjant. She came little later or at the moment, is immaterial as she is a witness of crime. Of course one of the eye-witnesses Mani Ram has not been examined by the prosecution and he has been produced by the defence as DW 1 but this cannot throw away the entire case of the prosecution, In a criminal trial, a witness may be, as we commonly feel tutored or won over. The same is the case with Mani Ram DW 1. The testimony of Smt.Charanjeet Kaur, PW 2 and Satpal, PW 5, who are the eye witnesses of the scene of the crime dearly demonstrates that it was accused Atma Ram who wanted to take revenge from Gurjant and had the intention to kill the deceased. A knife is a deadly weapon and the injury inflicted with this weapon is on the vital part which according to the Dr. Indrapal Singh PW 3 is sufficient in the ordinary course of nature to cause death as per the post mortem report conducted by this witness. This injury was incised wound measuring 1' x 1/2' x cavity deep in front of right lower chest near sternum and as a result of this there was a fracture of sixth and seventh ribs of the right side. When this injury was caused by accused-Atma Ram and it was sufficient in the ordinary course of nature to cause death as per the doctor, the only inference which can be drawn with irresistible conclusion is that the author of this injury was accused-Atma Ram who had an intention to kill deceased Gurjant. His case neither falls under any of the exception of Section 300, IPC nor it is a case of inflicting injury with any knowledge or likelihood of causing death, We are, therefore of the opinion that the learned trial Judge has rightly convicted accused appellant Atma Ram Under Section 302 IPC.

10. So far as accused-Ramesh Kumar is concerned, when common intention has not been established and as per the statement of Satpal PW 5 he, too inflicted blow with knife which has been recovered in pursuance to his information furnished under Section 27 of the Evidence Act and also from the statement of Smt.Charanjeet Kaur PW 2 that when his son Gurjant tried to run away after sustaining knife blow inflicted by accused-Atma Ram Ramesh also inflicted knife blow, it goes to show that accused Ramesh was having knowledge that by inflicting such second blow deceased Gurjant will be killed. Therefore, his case falls under Section 304, Part II IPC. In the absence of any premeditation of mind with his brother accused Atma Ram he cannot be convicted Under Section 302, IPC with the aid of Section 34 I.P.C.

11. As discussed above, the prosecution has not established any overt act or any common intention or any common object with regard to rest of the three accused appellants viz Vipin Manoj and Heeralal, their conviction under Section 302 IPC read with Section 149 & Section 148 IPC cannot be sustained.

12. The last contention of the learned Counsel is that a question was not put to accused under Section 313, Cr.P.C. with regard to the FSL Report is also devoid of force because Under Section 293 Cr.P.C, such report is admissible and no formal proof is required. The case of Shaikh Mohammed Salim Karimullah and Ors. v. State of Maharashtra reported in : 1998(5)BomCR750 cited by the learned Counsel for the accused appellants is distinguishable from the facts of the present case because in the cited case the circumstances with regard to the blood group on the clothes as that of the deceased were not put to the accused Under Section 313 CrPC This decision of the Bombay High Court was based on the earlier decision of the Hon'ble Supreme Court in the case of Sharad v. State of Maharashtra reported in : 1984CriLJ1738 and of Harijan Megha Jesha v. State of Gujarat reported in : 1979CriLJ1137 . This view was taken by the Hon'ble Supreme Court on the ground that in Harijan Megha Jesha's case (supra), the trial Court acquitted the accused appellant. Whereas in the present case Malkhana In-charge Vijay Kumar, PW 12 has been produced by the prosecution and a question has been put that he sent the sealed packets from Malkhana to F.S.L. the report of which is admissible under Section 293 CrPC as stated above. The. rest of the cases cited by the learned Counsel for the accused appellants are with, regard to altering conviction from Section 302 IPC to Section 304 part I or part II IPC but as discussed above the facts of the present case and the circumstances under which a knife blow has been inflicted on the vital part i.e. stomach resulting in fracture of sixth and seventh ribs of deceased Gurjant. it is not a case which may be treated to be under any exception of Section 300 IPC or of knowledge.

13. Consequently we allow this appeal in part. While maintaining conviction of accused-Atma Ram and sentence of life imprisonment along with a fine of Rs. 1000/ - & in default to further undergo three months R.I. for the offence Under Section 302 IPC recorded vide judgment dt. 23.5.2002 by learned Additional Sessions Judge No. 1 Sriganganagar, he is acquitted under Section 148 IPC. He is in jail he will serve out the remaining part of the sentence awarded. So far as accused Ramesh Kumar is concerned, his conviction is altered from Section 302/149 IPC to Section 304 part II IPC and for that he is sentenced to the period already undergone which is more than five years but he is also acquitted under Section 148 IPC. However the order of fine shall remain intact. As regards appellants Vipin Manoj and Heeralal their conviction and sentences recorded Under Sections 302/149 and 148 IPC are set aside and they are acquitted of the charges levelled against them. Appellant Vipin is in jail, he shall be released forthwith, if not required in any other case. Appellant Manoj and Heeralal are on bail their bail bonds stand cancelled.