Holding

The Supreme Court set aside convictions under Sections 149, 302, 225, 147 and 148, substituting murder convictions with culpable homicide not amounting to murder (Sec.304 Part‑I read with Sec.34) for A‑3 and A‑4, confirmed the theft conviction of A‑1 with reduced sentence, and upheld the assault convictions under Sections 324 and 323.

Summary

On 12 January 1981 a dispute over alleged uprooting of crops on the victim’s land led to a scuffle in which the victim Sotilal Yadav was assaulted by several accused and died on the spot. The trial court convicted all seven accused under various provisions including murder (Sec.302 read with Sec.149), theft (Sec.379), rioting (Sec.225), assault (Secs.324, 323) and offences under Secs.147,148,109. The High Court affirmed the convictions. On appeal, the Supreme Court examined whether the prosecution proved a common object under Sec.149 and the elements of murder, and held that the evidence did not establish an unlawful assembly or pre‑meditated murder, so the Sec.149 and Sec.302 convictions were set aside and substituted with culpable homicide not amounting to murder under Sec.304 Part‑I read with Sec.34 for A‑3 and A‑4, with a ten‑year rigorous imprisonment. The Court confirmed the theft conviction of A‑1 but reduced the sentence to one year, set aside the convictions under Secs.225,147,148, and upheld the assault convictions under Secs.324 and 323. Accordingly, the appeal was partly allowed, modifying and confirming various sentences.

Issues considered

Whether the prosecution proved a common object under Section 149 IPC to sustain conviction for murder under Section 302 read with Section 149.
Whether the facts constitute murder under Section 302 or culpable homicide not amounting to murder under Section 304 Part‑I.
Whether conviction under Section 379 IPC for theft is justified and what sentence is appropriate.
Whether convictions under Sections 225, 147, 148 IPC are sustainable.
Whether convictions under Sections 324 and 323 IPC for assault are valid.

Legislation cited

Indian Penal Code, 1860s. 109, s. 147, s. 148, s. 149, s. 225, s. 300, s. 302, s. 304 Part I, s. 323, s. 324, s. 34, s. 378, s. 379

Subjects

murderculpable homicideunlawful assemblySection 149 IPCSection 302 IPCSection 304 Part ItheftSection 379 IPCcommon intentionSection 34 IPCappealevidence

Judgment

A MALHU YADAV AND ORS.
v.
STATE OF BIHAR

MAY I, 2002

B [R.P. SETHI AND DORAISWAMY RAJU, JJ.]

Criminal Law:

Penal Code, 1860-Sections 302 read with 149, 379, 225, 109, 324,
C 323, 147 and 148-Convictio~Onfacts, scujjle between parties over uprooting
of crops on victims land by one of the accused resulting in assault on victim,
his family members and informant leading to the death of the victim-First
Information Report-Investigation-Trial Court convicting all the accused
persons for various offences-High Court upholding conviction-On appeal,
D held on the basis of evidence on record, post mortem report and recovery of
weapons, accused persons not entitled to total acquittal-Conviction under
various offences modified.

Constitution of India, 1950-Article 136-Concurrent findings offacts- .,..
Interference with-Discussed.
E
According to the prosecution, on the fateful day informant noticed
accused person 1 and 3 uprooting the crops on the victim's land. He caught
A-1 which resulted in scuffle between them attracting attention of other
accused and members of victim's family. Accused persons asked the victims
and his family members to release A-1 but the sa~e was refused. As a result
F accused persons viz A-4 followed by A-3, then A-2 followed by A-7 assaulted
one 'S'-the victim, on alleged exhortation of A-5. 'S' received various
injuries and died on the spot due to the same. When father of 'S', his Cather-
in-law and PW-5 tried to lend support by lifting 'S', A-6, A-2 assaulted
father of 'S', A-5 and A-7 assaulted PW-5. A-6 also assaulted PW-10
-'
G informant which made him let loose A-1 held by him. It is alleged that A-
l took away the uprooted crops. PW-6 and his mother took deceased's
father and PW-5 to hospital for treatment. PW-IO-informant alongwith
others took the dead body of 'S' to Police Station. On the basis of statement
of the informant case was registered against all seven accused. Investigations
were carried out. On the basis of the evidence, trial court convicted all the
H 676
MALHU YADA V v. STATE OF BIHAR 677
accused persons, A-1 under Section 379 IPC, A-2 to A-7 under Section 302 A
read with Section 149 and Section 225, in addition A-5 under Section 109,
A-2 and A-6 under Section 324 JPC, A-5 and A-7 under Section 323 and
Section 147, A-2 to A-4 and A-6 under Section 148 IPC. High Court
confirmed the conviction. Hence the present appeal.

Appellants contended that the genesis or origin of the incident has B
not been properly presented and also the prosecution failed to substantiate
the offence of murder punishable under Section 302 IPC, read with Section
... "f 149. On the facts, Section 149 had no applicability at all. The version of
PWs with reference to the occurrence, the place and the manner of assault
and inflicting of injuries belies their claim and also casts serious doubts on C
the veracity and credibility of the materials. The serious omissions on the
part of the Investigating Officer to secure the alleged blood stained earth
seen by him at the place of occurrence or the recovery of the crops said to
have been removed, shatters the prosecution case. The essential ingredients
of an offence under Section 379 against the first accused, ingredients to
attract Section 302/149 IPC against other accused and also the ingredients D
of other offences under which the accused persons are convicted, are not

. proved, thus the conviction was not justified .

Respondent-State contended that concurrent findings recorded by
both the courts below on a proper appreciation of the materials on record E
do not call for interference and the grievance of the appellants is not well
merited and thus the appeal has no substance.

Partly allowing the appeal, the Court

HELD : 1.1. Though the claim for total acquittal of the accused F
persons and complete exoneration from any liability is not well-merited,
the grievance of the accused persons cannot be said to be entirely devoid
of merit to some extent. (686-Di

2. By projecting the events and occurrence, subject-matter of the
counter complaint lodged with the police, there is no merit in the challenge G
made by appellants with regard to occurrence and it has been rightly
rejected by the courts below. Prosecution witnesses' statement regarding
occurrence is consistent, truthful and reliable and despite certain minor
discrepancies on certain significant matters courts below accepted the same.
Neither the analysis nor sifting of evidence and assessment made thereof H
678 SU_PREME COURT REPORTS (2002) 3 S.C.R.

A by th~ courts below in this regard to draw the necessary inference and
record findings could be held to suffer from any serious infirmities nor
patent illegalities to oblige this Court to have any re-appreciation of the
same. There is nothing in law, which mandates for discarding the case of
the prosecution, though the lapse may deserve deprecation, despite the
existence of reliable evidence to connect the accused or substantiate the
B place of occurrence, for non-lifting the blood stained earth on the spot. In
the teeth of the ocular evidence of those who actually witnessed the
occurrence, the so-called lapse, which has also been properly explained by
the Investigating Officer cannot cast any doubts about the manner of
occurrence or its place of occurrence. The omission to recover the crops
C removed, also cannot be considered to falsify the case of the prosecution
when it stood otherwise sufficiently established by cogent and convincing
oral evidence concurrently found acceptable to by the courts below.
(686-E-H; 687-A-B)

3. The plea of alibi set up by A-3 and A-4.has been rightly rejected
D in the teeth of the evidence attempted to be produced for the defence which
could neither be shown to be genuine or credible, but also rightly held not
to be of the quality to inspire any confidence with the courts below. The
counter complaint flied could not be substantiated on behalf of the accused
and the so-c~~led injuries found on some of the accused were considered.
E to be capable Of being created for the purpose of the case and were rightly
not believed by the courts below. The fact that some of the witnesses were
relatives of the victim's family is no ground to reject their evidence as
untrustworthy. In law, what is expected is to analyse and scrutinize the
same with due care and caution before accepting or acting upon the same
. and this exercise has been meticulously undertaken by the courts below
F and no dent could be made on the prosecution case, from the stand taken .. ·
on behalf of the accused. Being also an appeal entertained under Article
136 of the Constitution for the reason that the concurrent findings
regarding the manner of occurrence, place of occurrence and the method
of inflicting injuries, found substantiated against the accused by accepting
G the prosecution case does not call for interference, within the normal
permissible limits. No perversity in the approach or the ultimate findings
recorded could be made out and the factual findings recorded remain
unassailable. f687-B-F)

4. It is contended by the appellant that there is no proof of actual
H uprooting and removal of the standing crops as alleged. Mere non-recovery
MALHU YADAV v. STATE OF BIHAR 679

alone is no sufficient ground to sustain such a claim. The oral evidence A
tendered by PWs, who witnessed the occurrence, firmly established the
.. uprooting of some of the crops and removal of the same. The evidence of
the Investigating Officer who visited the place of occurrence during the
course of investigation, lends corroboration to the same. The first accused
was only convicted under Section 379 IPC, because even according to the B
PWs, he was held physically by PW-10 till the end of occurrence. Thus,
there is no reason to differ from the conviction recorded under Section 379
as against A-1, but, at the same time, it is held that in the absence of any
substantive proof of the value of the same and the lapse of time, the
maximum sentence envisaged under Section 379 need not be imposed and
the interest of justice would be met if the sentence is reduced to one year C
rigorous imprisonment. (687-G-H; 688-A, B, D, El

5. There is absotutely no evidence whatsoever to attribute any
common object of such a thing activated all of them to join in furtherance
of the object either before arrival or during the course of occurrence as
such. Hence, the charge under Sectfon 149 IPC fails and the conviction D
thereunder is liable to be set aside. (688-G, H(

6. The evidence of witnesses for the prosecution, who are said to be
eye witnesses to the occurrence, shows that it ·is only when A-5 gave the
exhortation A-4 commenced the assault on the deceased with bhala injury E
identified as Injury No. I, followed by A-2 with a blow with lathi injury
identified as Injury No. 2, then attack by A-5 using lathi injury identified
as Injury No. 4 and also Injury No. 5 not ascribed to anyone. According
to the doctor Injury Nos. I and 2 were grievous and Injury No. 3 dangerous
to life in ordinary course of nature, though 4 and 5 were simple in nature.
It is only by ways of exaggeration some of the PWs stated in their anxiety, F
attributing each one of the accused with one or more injuries but the same
did not tally, except to the extent indicated above, A-6 and A-7 were not
proved to have inflicted any injury of the nature found on the body,
particularly contributing to the death of the victim. Therefore, the accused,
A-2, A-3, A-4 and A-5 alone are liable for the homicidal death of 'S'. G
(689-B-F)

, 7. Before a charge of murder punishable under Section 302 could be
held to have been proved by the prosecution, it is not merely enough to
claim that none of the five exceptions to Section 300, have been primafacie
established by evidence on record but it is inevitably necessary for the H
~
'!(
680 SUPREME COURT REPORTS {2002) 3 S.C.R.
I
A prosecution to bring the case under any of the four clauses of Section 300 )I.. .
IPC, to get a verdict of murder punishable under Section 302 IPC. In the
instant case, trial court held that there was no premeditation to commit
the offending act. The attempt as well as the aim of the accused persons
was merely to release A-1 from the clutches of PW-10 and the victim and
only when their request tO allow A-1 to go was rejected with a retort that
B A-1 will be subjected to Village Panchayat and till then will not be release,
the situation got flared up suddenly and worsened, resulting in the assault
of the victim. Trial Court, on the assumption that accused persons except
A-1 formed an unlawful assembly with a common object and proceeded )' i-

to convict them under Section 302 read with 149 IPC. The charge under
c Section 149 IPC, on the evidence on record and facts proved, could not be
said to have been made out beyond reasonable doubt. Also the charge under
Section 147 or 148, as found against some of the accused cannot be
sustained and is liable to be set aside. Even the High Court did not consider
these aspect properly except affirming the conclusion of guilt arrived at
by the trial court. The evidence on record relating to the occurrence cannot
D be taken to provide any sa.fe basis for coming to a conclusion that the
accused formed themselves into an unlawful assembly with a common
'It
object, as envisaged in Section 141. However, from the evidence on record
it appears that when accused No. 1 was not released by the complainant ""
party, accused Nos. 2, 3, 4, and 5 formed a common intention to commit
E an offence in furtherance of which they used weapons like spears and lathis
and inflicted injures on the vital parts of the body of 'S'. The prosecution
has established from the surrounding circumstances and accused's conduct
on the spot that the aforesaid four accused persons joined in the actual
doing of the act which resulted in the death of 'S' and the common intention
though not initially in existence, was formed during the transaction on the
F spot. The absence of the charge under Section 34 against the aforesaid ~
accused persons would not make any difference. Thus accused Nos. 2, 3, 4
and 5 are convicted for the major offence read with Section 34 IPC.
[6?0-B-H; 691-A-DJ

Dalip Singh v. State of Punjab, (1954) SCR 145, referred to.
G
8. In the instant case, accused might be said to have caused a bodily
injury as is likely to cause death, with an intention to cause death attracting
section 304 Part-I. Therefore, there is every justification and necessity to ..........
alter the conviction recorded under Section 302/149 IPC, Section 304 Part-
H I, read with Section 34 JPC regarding accused Nos. 2, 3, 4 and 5 of whom
I_/
MALHU YADAV v. STATE OF BJHAR 681

A-2 and A-5 are already dead. In the absence of Section 149 there is no A
evidence to show that accused Nos. 6 and 7 sh~red any common intention
to commit the offence of culpable homicide alongwith accused Nos. 2, 3, 4
and 5. The prosecution attributed some overt acts to accused Nos. 6 and 7
which stand belied by the medical evidence. All the injuries found on the
person of the deceased are attributable to accused Nos. 2, 3, 4 and 5 only. B
Thus accused Nos. 6 and 7 cannot be convicted even for the offence
punishable under Section 304 Part I, IPC. So far as A-3 and A-4 are
concerned, it is satisfied, on the facts and circumstances of the case, that
the imposition of to years R.I. would sufficiently meet the requirements of
justice and to this extent, the judgments of the courts below shall stand
altered and modified. (691-E-H) C
9. The offence under Section 225 IPC held proved against A-2 to A-
7, cannot be said to have been substantiated. Though A-1 was found
uprooting the crops in the land of the victim's family and caught in the
action, the intention and resolve of those who detained him and the victim
was not to release him till subjected to a Village Panchayat and it was not D
as though they were bent upon handing A-1 over to Police for further lawftil

.. custody or action. In the light of such evidence, a conviction under Section
25, merely because there was a demand to release him is rendered
impossible, all the more so except a demand so made, nothing further was
done in this direction to get him released. Therefore, conviction and E
sentence imposed under Section 225 IPC is set aside. )692-A-C)

10. The conviction of A-2 under Section 324 IPC was for the assault
said to have been made by accused o~ the father of the deceased. Likewise,
A-6 was also said to have attacked the father of deceased. The conviction
,_.. of A-5 and A-7 under Section 323 was for having assaulted the father-in- F
law of the deceased. So far as this part of the conviction and sentence of
one year rigorous imprisonment under Section 323 is concerned, no
interference is called for. A-5 also is no longer alive. Similarly, no infirmity
in the conviction of A-2 and A-6 under Section 324 IPC and the sentence
of three year rigorous imprisonment imposed therefor, could be G
substantiated to call for interference in this appeal. A-2 is not alive any
longer. Consequently, the conviction of A-6 under Section 324 and A-7
under Section 323 and the sentence imposed stands confirmed. (692-D-F)
,.
. ·""(
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1289 of 1999. H
682 SUPREME COURT REPORTS (2002] 3 S.C.R.

A From the Judgment and Order dated 30. 7 .1999 of the Patna High Court
in Cr!. A. (DB) No. 17 of 1987.

Sushil Kumar, Sanjay Jain and Anil Kumar Jha, for the Appellants.

8.8. Singh and Kumar Rajesh Singh for the Respondent.
B
The Judgment of the Court was delivered by

RAJU, J. The above appeal has been filed against the judgment dated
30. 7.1999 of a Division Bench of the Patna High Court in Criminal Appeal
No. 17 of 198!7 confirming the judgment dated 18.12.1986 of the learned 2nd
C Additional Sessions Judge, Darbhanga, convicting and sentencing the
appellants for'various offences in Sessions Trial No. 30of1983. Of the seven
accused, who were charged and stood trial before the Sessions Court, the
fifth accused, by name Ram Prasad Yadav, died on 2. 7 .1994 and during the
pendency of the appeal in this Court, the second accused Malhu Yadav died
on 5.6.2001.
.D
. The case of the prosecution is that on l.2.1981 at about 7.30 a.m.,
Rajendra Yadav, the informant, (PW-10), who is the brother of the deceased
Sotilal Yadav, had gone to see the standing Kerao crop on his land and
noticed the first accused Lal Bachan Yadav (A-1), son of Shibu Yadav (A-
E 3), stealthily uprooting the crops, resulting in a scuffle between them when
he caught hold of A-1. On hearing the hullas raised at that time both by PW-
10 and A-1, the deceased, his father Laxmi Yadav (since deceased) and Ram
Kishore Yadav (PW-5) as also the accused and some others, arrived at the
spot. In the process of exchanging ab~s and hot words, when a demand was
made by other accused to release A-1, the deceased refused to do so without
F having a Panchayat in the Village for the incident. The accused were said to
have got enraged on this and Ram Prasad Yadav (A~5) was said to have
exhorted the other accused stating "Shela badmash hai, use jan se mar do".
On this, Jagdish Yadav (A-4), the son of A-5, standing on the bandh was said
to have assaulted the deceased with Shala on the right side of the neck,
G which caused a punctured wound 1" x 1/4" x 1W' piercing through the sub
interior tissues upto upper hole of right lung. When the deceased fell down,
A-3 also assaulted him with a Shala on his back causing an incised wound
l" x W' X 1/4" on left lower part of the back. Malhu Yadav (A-2) was also
said to have assaulted him on his head with lathi portion of Shala causing a
,
lacerated wound l" x 1112" upto one on right side of head. Brij Kishore Yadav
H (A-7) was stated to have assaulted him with lathi on his head causing one
j
MALHU YADAV v. STATE OF BIHAR [RAJU, J.] 683

lacerated wound I W' x V." upto bone over middle of head and A-5 gave a A
blow with lathi on back causing bruise 4" x I" on lower part of the back.

-
Sotilal Yadav was said to have died on the spot due to the above injuries.
Laxmi Yadav, father of the deceased, and Ram Kishan Yadav (PW-5), father-
in-law of the deceased, when tried to lend support by lifting the deceased,
Raj Kumar Yadav (A-6) was said to have assaulted Laxmi Yadav with Farsa
on his head as well as on his both hands causing incised wound and A-2 also B
was said to have assaulted him with Bhala on his right eye brow. A-5 was
said to have assaulted PW-5 with lathi on his left hand fingers and right fore
arm causing laceration, bruise and fracture injuries. A-7 was also said to have
assaulted him with lathi on his back causing bruise. A-6 was attributed with
an act of assaulting PW- I0 which made him let loose A• I held by him and C
go and stand at a distance of ten laggas from the place of occurrence. In the
course of occurrence as well as hullas raised, one Kailu Yadav (since dead),
Sukhdev Yadav (said to be gained over) Uttim Yadav (PW-6) and others
were said to have arrived on the spot and saw the occurrence. A-1, in spite
of all this, was alleged to have taken away the uprooted 'kerao'.
D
PW-6 and his mother (wife of Ram Kishan Yadav) were said to have

.. taken Laxmi Yadav and Ram Kishan Yadav to Hospital for the treattnent on
Tonga and PW-IO along with Awadh Yadav (PW-6) and Kailu Yadav were
said to have brought the dead body of Sotilal Yadav to Kilaghat Police
Station (Sadar P.S.) at about 3.30 p.m. when PW-12, Shri Bharat Kant Jha, E
then Station Officer, was present. Fard byan (Ex. I) of the informant was said
to have been recorded and the case registe~ed as Sadar P.S. Case No.23 dated
1.2.1981 under Sections 147, 148, 149, 324 and 302, !PC, against all the
seven accused. On taking up further investigation, PW-12 was said to have
examined the dead body and prepared an inquest report (Ex.2) and recorded
the statement of Kailu Yadav and Aw2,dh Yadav at the Police Station. The F
dead body was said to have been sent to the Hospital for post mortem through
two Constables and received at the Hospital at about 4.30 p.m. on the same
day. The post mortem was said to have been conducted by the Doctor (PW-
1 I) at about 1.30 p.m. on 2.2.1981, who submitted the post mortem report
(Ex.3) received in the Police Station on 5.2.1981. During the course of G
investigation, on 1.2.1981 PW-12, who visited at 5.20 p.m. the Hospital to
record the statements from Laxmi Yadav and Ram Kishan Yadav, could not
do so for the reason that they were not in a fit condition but at the same time
their bodies were said to have been examined and Injury Reports (Ex. 4 and
4/1) were said to have been prepared. On the same night when PW-12 went
to the place of occurrence, he could not make an inspection for want of light H
684 SUPREME COURT REPORTS (2002] 3 S.C.R.

A and, therefore, on 2.2.1981 at 6.30 p.m. he made a spot inspection of the
place of occurrence and found uprooting of some of the standing crops in the
)'. -
field and marks of trampling, besides blood stains in the trampled area, but
not in that proper condition to be collected. After recording the Statements
of PWs-4 and 8, the house of A-5 was said to have been searched and two
lathis recovered from which 'Bhala' portion had been removed and one blood
B stained in all three articles under Seizure. List (Ex.5). Thereupon, he was said
to have gone to Hospital and recorded statement from the two injured persons,
noticed above. On 4.2.1981, the Superintendent of Police also supervised the
.....
investigation and A-5 and A-7 were said to have been arrested on 11.2.1981. )' )-

. The investigation was thereafter handed over to another person, who submitted
c the charge sheet before the Chief Judicial Magistrate, who later committed
the case to the District and Sessions Judge, which thereafter stood transferred
to the Court of 2nd Additional Sessions Judge.

In all, on the prosecution side, 12 witnesses were examined, .of which
PWs-1to3, 7 and 9 were formal witnesses, PW-IO being the informant, PW- •,
D 11 being the Doctor, PW-12 being the Investigation Officer and PWs-4, 5,
6 and 8 were stated to be eye witnesses to the occurrence. The relevant
documents, as noticed earlier, were also marked. On the whole, sixteen )..
_...
witnesses were said to have been examined in support of the defence, in
addition to marking ·some documents to substantiate a plea of alleged land
E dispute to falsely implicate them and the plea of alibi. On behalf of the
accused, apart from disputing the very occurrence, a plea of alibi, so far as
A-4 and A-3, was made, in addition to the plea that they were falsely implicated
not only due to certain land dispute, but also on account of the fact that A-
2 had lodged an information petition before S.D.O., Darbhanga, on 30.1.1981
regarding the alleged threats said to have been made by the deceased and
F PW-IO and others. That apart, the further plea raised in defence was that on
~
...
1.2.1981 at about 7.30 a.m. when A°":i and his son were engaged in uprooting
"Alluah" in their purchased land, the deceased and some others armed with
Bhala, Farsa and Arrow came and looted one mound of uprooted Alluah
worth Rs. 50 and when A-2 protested, the deceased assaulted him with Bhala
and his father assaulted him with lathi. On hulla raised, A-5 came at the spot
G and, in turn, was also assaulted by PW-5 with lathi. Other villagers were also
said to have assembled at the spot and saved A-2, resulting, in the process,
in several injuries, for which A-2 also seems to have lodged an FIR before
the Police on the same day at 11 a.m., Ex. K being the formal FIR and Ex. ...,_.,
r-->
I
0 being the written report and the Police thereupon registered Sadar P.S.
H Case No. 24/81 and after investigation, a charge sheet was also said to have
j
MALHU YADAV v. STATE OF BIHAR [RAJU, l.] 685

been submitted in Ex. M and Ex. N and Nil are said to be Injury Reports in A
· "' respect of A-2 and A-5.

After an exhaustive analysis and careful consideration of the evidence
on record, the learned Trial Judge held A-1 to be guilty of an offence under
Section 379, !PC, and acquitted him of offences under other sections of the
!PC. So far as A-2 to A-7 are concerned, they were convicted for offence B
under Section 302 read with Section 149 and in addition under Section 109,
IPC, as far as A-5 is concerned, and for which imposed rigorous imprisonment
for life. In addition thereto, A-2 to A-7 were convicted under Section 225,
- -; IPC, with a sentence of one year R.I. A-2 and A-6 were convicted for offences
under Section 324, !PC, and sentenced to three years R.I. So far as A-5 and C
A-7 are concerned, they have been also convicted under Section 323, IPC,
with a sentence of one year R.I. and under Section 147 with two years R.I.
As far as A-2 to A-4 and A-6, they were all convicted under Section 148,
IPC, with a sentence of three years R.I.
•. Aggrieved, as noticed earlier, an appeal had been filed by all the accused D
before the High Court and the learned Judges of the High Court, on a
consideration of the materials on record and overruling the challenge made
to the judgment of the Trial Court, confirmed the conviction and sentence
imposed against all the appellants observing that the manner of consideration
undertaken by the learned Trial Judge and the analysis and assessment of the
evidence were on proper lines and in correct perspective and inasmuch as the E
findings recorded were based on proper and sufficient evidence, no interference
was called for at their hands.

Mr. Sushil Kumar, learned senior counsel for the appellants, contended
that not only the genesis or· origin of the incident has not been properly
presented, but the prosecution miserably failed to substantiate the offence of F
murder punishable under Section 302, IPC, even read with Section 149,
though on the facts of this case, Section 149 had no applicability at all.
According to the learned counsel, the version of PWs with reference to the
occurrence, the place and the manner of assault and inflicting of injuries, not
only belies their claim but casts serious doubts on the veracity and credibility G
of the materials, and taken together with the serious omissions on the part of
the Investigating Officer to secure the alleged blood stained earth seen by
him at the place of occurrence or the recovery of the crops said to have been
removed, the prosecution case stood shattered and seriously undermined. The
learned counsel also invited our attention to the materials on record as well
as the findings recorded by the courts below to substantiate the claim on H
686 SUPREMF. COURT REPORTS [2002] 3 S.C.R.

A behalf of the 1st appellant that the essential ingredients of an offence under .
Section 379 cannot be said to have been proved against the first accused. So
far as the other accused are concerned, according to the learned counsel, the
ingredients necessary to attract Section 302/149, IPC, also could not be
considered to have been substantiated for the prosecution to justify a conviction
B under Section 302/149. Similar grievance has also been ventilated in respect
of the other offences for which the various accused have otherwise been
convicted and sentenced. Per contra, Mr. B.B. Singh, learned counsel appearing
for the respondent-State, contended that concurrent findings recorded by both
the courts below on a proper appreciation of the materials on record do not
call for interference and the grievance now sought to be made out is not well
C merited and the appeal has no substance whatsoever. Both the learned counsel
took us through the relevant findings, the evidence in support thereof and the
governing principles of.Jaw.

On carefully..-going through the findings recorded in the light of the
materials on·r~~rd, we find that though the claim for total acquittal of the
D accused and complete exoneration from any liability is not well-merited, the
..
grievance, to some extent, cannot be said to be entirely devoid of merit.
Having regard to the overlapping nature of conviction of the accused under
different provisio~~. we would consider it appropriate to deal with the claims
initially about the occurrence and thereafter vis-a-vis the offence under different
provisions of the Penal Code. So far as the occurrence, which itself has been
E seriously disputed only by trying to pick loopholes in the case of the
prosecution, but by projecting the eve.nts and occurrence, subject-matter of
the counter complaint lodged with the Police, we find no merit whatsoever
in the chailenge made on behalf of the appellants and it has been rightly
rejected by the courts below. PWs. 4,5,6,8 and 10 have spoken to about the
F occurrence from its inception and they have been found to be not only
consistent, truthful and reliable and despite certain minor discrepancies or
variations on certain insignificant matters and that too not on relevant and
vital aspects of the case, but inspired complete confidence with the courts ·
below to accept the same. Neither the analysis nor sifting of evidence and
assessment made thereof by the courts below in this regard to draw the
G necessary inference and record findings could be held to suffer from any
serious infirmities nor patent illegalities to oblige this Cou!"f to have any re-
appreciation of the same. There is nothing in law, which mandates for
discarding the case of the prosecution, though the lapse may deserve

.H
deprecation, despite the existence of reliabl.e evidence to connect the accused
or substantiate the place of occurrence, for non-lifting the blood stained earth
"" I \
MALHU YADA V v. STA TE OF BIHAR [RAJU, l.J 687

on the spot. In the teeth of the ocular evidence of those who actually witnessed A
the occurrence, the so-called lapse, which has also been properly explained
by the Investigating Officer (PW-12), cannot cast any doubts about the manner
of occurrence or its place of occurrence. The omission to recover the crops
removed, also, in our view, cannot be considered to falsify the case of the
prosecution when it stood otherwise sufficiently established by cogent and B
convincing oral evidence concurrently found acceptable to by the learned
Trial Judge as well as the Judges in the High Court.

The plea of alibi set up by A-3 and A-4 has been rightly rejected in the
teeth of the evidence attempted to be produced for the defence which could
neither be shown to be genuine or credible, but also rightly held not to be of C
the quality to inspire any confidence with the courts below. So far as the
counter complaint filed is concerned, the version in this regard could not be
substantiated on behalf of the accused and the so-called injuries found on
some of the accused were considered to be capable of being created for the
/
purpose of the case and not believed, in our view, rightly by the courts
below. The fact that some of the witnesses were relatives of the victim's D
family is no ground to reject their evidence as untrustworthy. In law, what
.A._ is expected is to analyse and scrutinize the same with due care and caution
-:; before accepting or acting upon the same and this exercise has been
meticulously undertaken by the courts below and no dent could be made on
the prosecution case, in this regard from the stand taken on behalf of the E
accused. Being also an appeal entertained under Article 136 of the Constitution
of India and for the reason that the concurrent findings regarding the manner
of occurrence, place of occurrence and the method_ of inflicting injuries,
found substantiated against the accused by accepting the prosecution case
does not call for our interference, within the normal permissible limits. No
perversity in the approach or the ultimate findings recorded could be made F
out and the factual findings recorded remain unassailable, though as we
would consider hereinafter the inferences drawn with reference to the actual
offences said to have been committed by the accused may require some
alteration, modification and interference.

So far as the offence under Section 379, IPC, for which the first accused G
has been convicted, is concerned, the grievance of the learned counsel for the
appellants does not merit our acceptance. Though, it has been contended with
some force that there is no proof of actual uprooting and removal of the
standing crops as alleged, we are of the view that mere non-recovery alone
is no sufficient ground to sustain such a claim on behalf of this appellant. As H
688 SUPREME COURT REPORTS [2002] 3 S.C.R.

A noticed earlier, the oral evidence tendered by PWs, who witnessed the
occurrence, firmly established the uprooting of some of the crops and removal )r -

of the same. The evidence of PW-12, who visited the place of occurrence
during the course of investigation, lends corroboration to the same. The first
accused was not convicted under Section 302, IPC, or under any other
B provisions, except Section 379, IPC, because even according to the PWs., he
was held physically by PW-10 till the end of the occurrence. Whoever,
intending to take dishonestly any movable property out of the possession of
any person without that person's consent, moving the property in a manner
to facilitate such taking will be committing theft as defined under Section
378, IPC. A thing attached to the earth as soon as it is severed from the earth
C will sufficiently constitute the ingredient necessary to make the act fall under
the said provision. Illustration (a) to Section 378 would further clarify the
position beyond doubt that as soon as the severance is effected in order to
take dishonestly such commodity out of the possession of any person without
his consent, the commission of the offence of theft stood completed.
Consequently, we see no reason to differ from the conviction recorded under
·.D Section 3 79 as against A-1, but, at the same time, we are of the view that in
the absence of any substantive proof of the value of the same and the lapse
of time, the maximum sentence envisaged under Section 379 need not be
imposed and the interest of justice would be met if the sentence is reduced
to one year R.I.
E
As for the conviction of the accused, A-2 to A-7 under Section 302,
IPC, read with Section 149 and, in addition, Section 109, IPC, also, as far as
A-5 is concerned, we are of the view that even the facts noticed and specifically
found by the courts below do not warrant such a conviction. Even as per the
version of the prosecution witnesses: there is no basis for an offence under
F Section 149, IPC. The genesis of the incident commenced with the first
accused entering the field of the deceased and uprooting stealthily some of
the standing crops and only when he was caught and a tussle ensued and
'hullas' were raised they brought the other accused suddenly into the scene.
The accused were initially asking PW-I 0, the deceased and other members
G of his family, who were present, to release A- I and it is only when the
deceased refused to release him stating that he will be put before the Panchayat
in the village and till then he will not be released, the situation became
aggravated and on the alleged exhortation by A-5, the assault on the victim
took place, all on the spur of the moment. There is absolutely no evidence
whatsoever to attribute any common object or such a thing having activated
H all of them to join in furtherance of the object either before arrival or during
.l
/
)-
MALHU YADAV v. STATE OF BIHAR [RAJU, J.] 689
the course of occurrence as such. Hence, the charge under Section 149, !PC, A
has to fail and the conviction thereunder is liable to be and shall stand set
aside. Consequently, it becomes necessary to consider and adjudge the guilt
of the accused with reference to the death of the victim on their own individual
actions.

The evidence of witnesses for the prosecution, who are said to be eye B
witnesses to the occurrence, itself shows that it is only when A-5 gave the
exhortation on which A-4 commenced the assault on the deceased with Bhala

... 'f
on the right side of the neck, identified to be the Injury No. I by the Doctor
(PW-I I). This was followed by A-2 with a blow on the head of the deceased
with lathi portion of Bhala, identified by medical evidence as Injury No. 3.
A-3 also gave a blow with Bhala on the back of the deceased causing an
c
incised wound Injury No. 2 as per the medical evidence. Injury No. 4 was
said to have been caused by A-5 by using lathi on the back of the victim. The
abrasion with bruise marks in the lower part of the back side of the victim,
identified as Injury No. 5 was not ascribed to anyone. PW-I I, the Doctor
who conducted the post mortem on the dead body, categorically stated that D
Injury No. I was caused by some pointed weapon like Bhala and Injury No.
2 by some sharp cutting weapon and even by the cutting edge of Bhala.
. A
While Injury Nos. 3 to 5 might have been caused by any hard blunt weapon
or even by a lathi, in his opinion, Injury Nos. I and 2 were grievous and
Injury No. 3 dangerous to life in ordinary course of nature, though 4 and 5
E
were simple in nature. It is only by way of exaggeration some of the PWs
stated in their anxiety, attributing each one of the accused with one or more
injuries but the same did not tally, except to the extent indicated above, with
those actually found on the dead body as per the post mortem certificate and
of PW-11, the Doctor. A-6 and A-7 were not proved to have inflicted any
injury of the nature found on the body, particularly contributing to the death F
....... , -" of the victim. Therefore, the accused, A-2, A-3, A-4 and A-5 alone should
be held liable for the homicidal death ofSotilal Yadav. Now that A-2 and A-
5 are dead, we have to confine our consideration in this regard with reference
to A-3 and A-4. The further question that requires to be considered is as to
whether on the evidence let in the offence of murder punishable under Section
302 has been proved or that the action of these accused has to be dealt with
G
under any other provisions of the Penal Code.

The learned Trial Judge, in addition to the facts noticed by us with
~- reference to the genesis of the occurrence, its aggravation stage by stage on
the spot, has found specifically that there is no case of any pre-meditated H
690 SUPREME COURT REPORTS (2002] 3 S.C.R.

A murder. As the accused gathered on the spot on hearing the commotion or
hullas raised by A-1 and PW-10 and others, it was only to secure the release
of A-1 and when a demand in this regard was made and rejected outright by
the deceased stating that till a Panchayati was held in the village, A-1 will
not be released, the assault commenced, all of a sudden, in a fit of passion.

B As per exception 4 to Section 300, culpable homicide is not murder if
it is committed without premeditation in a sudden fight, in the heat of passion
upon a sudden quarrel and without the offenders taking undue advantage or
acting in a cruel or unusual manner. Further, before a charge of murder
punishable under Section 302 could be held to have been proved by the
C prosecution, it is not merely enough to claim that none of the five exceptions
to Section 300, have been prima facie established by evidence on record but
it is inevitably necessary for the prosecution to bring the case under any of
the four clauses of Section 300, IPC, to get a verdict of murder punishable
under Section 302, IPC. In this case, it has been held even by the Trial Court
that there was no premeditation to commit the offending act and as a matter
D of fact from the genesis or origin of the occurrence, it could be seen that A-
l, while uprooting some of the standing crop, was caught by PW-10 and the
during the course of tussle and 'hullas' raised only the other members of the
family of t~e deceased and villagers· as well as the accused arrived on the
scene and the attempt as well as the aim of the accused we~e merely to
E release A-1 from the clutches of PW-10 and the victim and only when their
·request to allow A-1 to go·; was rejected with a retort that A-1 will be
subjected to Village Panchayat and till then will not be released, the situation
got flared up suddenly and worsened, resulting in the assault of the victim.
The learned Trial Judge, though has considered at length the question ·C!f
liability of A-1 to be punished under Section 302/149, 147, IPC, has chosen
F to jurrip to the conclusion in this regard against the other accused on the
assumption that those others formed an unlawful assembly with a common
object and proceeded to conyict them therefor as also under Section 302,
IPC. The charge under Section 149, lfC,_on the evidence on record and facts
proved, could not be said to have been made out beyond reasonable doubt.
G , Consequently, the charge under ~ection 147 or 148, as found against some
of the accused, also cannot be sustained and is liable to be set aside. Even
the High Court does not seem to have properly c9nsidered these aspects,
except affixing its approval to tne ma.¢1.er of consideration undertaken and
affirming the conclusion of guilt, as arrived at by the Trial Court without
applying its mind to the question as to the lawful inferences that really flows
H from the primary facts foun_d proved. The evidence on record relating to the
j
MALHU YADAV v. STATE OF BIHAR (RAJU, l.) 691

- occurrence cannot be taken to provide any safe basis for coming to a conclusion
that the accused formed themselves irito an unlawful assembly with a common
object, as envisaged in section 141. However, from the evidence on record
it appears that when accused No. I was not released by the complainant
party, the accused Nos. 2, 3, 4 & 5 formed a common intention to commit
A

an offence, in furtherance of which they used weapons like spears and lath is B
and inflicted injuries on the vital parts of the body of Sotilal, deceased. The

- prosecution has established that the aforesaid four accused persons joined in
the actual doing of the act which resulted in the death of Sotilal and the
common intention though not initially in existence, was formed during the
transaction on the spot. The existence of the common intention amongst the
aforesaid accused persons has been established from the surrounding C
circumstances and from their conduct on the spot. The absence of the charge
under Section 34 against the aforesaid accused persons would not make any
difference because on the proved facts and the evidence available on record,
their intention to commit an offence has been established. Failure to charge
the accused under Section 34, who stood charged under Section 149 !PC
would not result in any prejudice to them. [Dalip Singh vs State of Punjab D
(1954 SCR 145)]. The aforesaid accused persons can, therefore, be convicted
for the major offence read with Section 34 of the Indian Penal Code.

To the case on hand and facts found established, Section 304 Part-I
only could be held to be attracted, since at best the case can be one where E
the accused might be said to have caused a bodily injury as is likely to cause
death, with an intention to cause death. Therefore, there is every justification
and necessity to alter the conviction recorded under Section 302/149, !PC,
into one under Section 304 Part-I, read with Section 34 !PC, and that too so

- ,;;;
far as Accused Nos. 2, 3, 4 and 5 of whom A-2 and A-5 are already dead.
In the absence of Section 149 there is no evidence to show that accused Nos. F
6 and 7 shared any common intention to commit the offence of culpable
homicide alongwith accused Nos. 2, 3, 4 and 5. To rope them in the
commission of the offence, the prosecution attributed some overt acts to
accused Nos. 6 and 7 which stand belied by the medical evidence. All the
injuries found on the person of the deceased are attributable to accused Nos. G
2, 3, 4 and 5 only. Accused Nos. 6 and 7 cannot be convicted even for the
offence punishable under Section 304 Part I, !PC. So far as A-3 and A-4 are
concerned, we are satisfied, on the facts and circumstances of the case, that
the imposition of IO years R.l. would sufficiently meet the requirements of
justice and to this extent, the judgments of the courts below shall stand
altered and modified. H
692 SUPREME COURT REPORTS [2002] 3 S.C.R.

A The offence under Section 225, IPC, held proved against A-2 to A-7,
cannot at all be said to have been substantiated. Though A- l was found
uprooting the crops in the land of the victim's family and caught in the
action, the intention and resolve of those who detained him and the victim
was not to release him till subjected to a Village Panchayat and it was not
as though they were bent upon handing A- l over to Police for further lawful
B custody or action. In the light of such evidence coming to light even from the
prosecution case, a conviction under Section 225, merely because there was
a demand to release him, is rendered impossible, all the more so when except
a demand so made, nothing further was done in this direction to get him
released. The conviction and sentence imposed under Section 225, IPC,
C therefore, shall stand set aside.

The conviction under Section 324, IPC, of the A-2 and A-6 and of A-
6 and A-7 under Section 323, IPC, alone remains to be considered. The
conviction of A-2 under Section 324, IPC, was for the assault said to have
been made by this accused on Laxmi Yadav, the father of the deceased, with
D Bhala on his right eye brow. Likewise, A-6 was also said to have attacked
Laxmi Yadav with Farsa on his head as well as on both hands ~ausing incised
wounds. The conviction of A-5 and A-7 under Section 323 was for having
assaulted Ram Kishan Yadav (PW-5), the father-in-law of the deceased, with
lathi on his back. So far as this part of the conviction and sentence of one
E year R.I. under Section 323 is concerned, no interference is called for. A-5
also is no longer alive. Similarly, no infirmity in the conviction of A-2 and
A-6 under Section 324, IPC, and the sentence of three years R.I. imposed
therefor, could be substantiated before us, to call for our interferenc~ ir, this ·
appeal. As noticed earlier, A-2 is not alive any longer. Consequently, the
conviction of A-6 under Section 324 and A-7 under Section 323 and the
F sentence imposed therefor shall stand confirmed.
The appeal shall stand partly allowed, with the resultant position as
follows:

(a) The conviction and sentence under Section 379 l.P.C. upon A-I
. G shall stand confirmed .
(b) The conviction and sentence under Section 302 read with allied
provisions stand modified into one under Section 304 Part-I, read
·with Section 34 IPC, with ten years R.I. in respect of A-3 and A-
4, and they shall undergo the remaining part of the sentence, if -j ,..
H any.
j.
MALHU YADAV v. STATE OF BIHAR [RAJU, I.) 693
(c) The conviction and sentence upon A-3, A-4, A-6 and A-7 under A
~
Section 147 or 148, as the case may be, shall stand set aside.
(d) The conviction and sentence of three years R.I. imposed upon A-
6 under Section 324, !PC, and of one year R.I. under Section 323,
!PC, imposed upon A-7 shall stand confirmed.
B

-
(e) The con.,iction and sentence under Section 225, !PC, of all the
accused shall stand set aside.
(f) If any of the accused have already undergone the period of
~ -r sentence, as modified under this judgment, they shall be
immediately released unless required in any other case. The bail
bond of A-3 (Shibu Yadav) shall stand cancelled and he be taken c
into custody for undergoing the rest of the sentence, if any.

N.J . Appeal Partly allowed.

..,