Gauhati High Court
Page No.# 1/18 vs The State Of Assam And 3 Ors on 5 August, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/18
GAHC010051382022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./47/2022
UPEN DEKA AND 3 ORS.
S/O LATE MONORAM DEKA
RESIDENT OF VILLAGE SIMOLABARI, PS BARBARI, DIST BAKSA, ASSAM.
2: SRI KANDARPA DEKA
S/O DILIP DEKA
RESIDENT OF VILLAGE SIMOLABARI
PS BARBARI
DIST BAKSA
3: SRI TARUN MEDHI.
S/O LATE DHAGHO MEDHI
RESIDENT OF VILLAGE SIMOLABARI
PS BARBARI
DIST BAKSA
4: SRI DIPAK MEDHI
S/O HARKANTA MEDHI
RESIDENT OF VILLAGE SIMOLABARI
PS BARBARI
DIST BAKS
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY PP ASSAM
2:SRI MRIDUL PATHAK
S/O SRI AKAN PATHAK
RESIDENT OF VILLAGE SIMOLABARI
Page No.# 2/18
PS BARBARI
DIST BAKSA
3:SRI RATIA BORO
S/O THOPSA BORO
RESIDENT OF VILLAGE SIMOLABARI
PS BARBARI
DIST BAKSA
4:SRI PRABIN SWARGIARY
S/O SUKRAM SWARGIARY
RESIDENT OF VILLAGE SIMOLABARI
PS BARBARI
DIST BAKS
Advocate for the Petitioner : MR. A CHAUDHURY, MR A RAHMAN,MR. A. GAYAN,MR. P K
MUNIR,MR. A. GAYAN,MR. P K MUNIR,MR. K MUNIR,MR. P K DAS,MR. B K MAHAJAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
For the appellant : Mr. P.K. Munir, Advocate
For the respondents No.1 : Ms. A. Begum, Addl. P.P., Assam
Date of hearing : 30.07.2025
Date of Judgment : 05.08.2025
JUDGMENT AND ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Mr. P.K. Munir, learned counsel for the appellants. Also heard Ms. A.
Begum, learned Addl. P.P., Assam for the State.
Page No.# 3/18
2. The present appeal has been filed by the 4 appellants, who have been
convicted under Sections 341/302/34 of the IPC by the Court of learned
Sessions Judge, Baksa, Mushalpur, in Sessions Case No.249/2018, vide
judgment dated 20.01.2022 and have been sentenced to undergo 1 month
simple imprisonment each under Section 341 of the IPC. They have also been
sentenced to undergo rigorous imprisonment for life with a fine of Rs.1,000/-
each, in default, to undergo further rigorous imprisonment for 2 months under
Section 302 of the IPC.
3. The prosecution case, in brief, is that an FIR was lodged on 21.03.2010 at
about 6 p.m. by the informants, (1) Mridul Pathak (2) Ratia Boro and (3) Pabin
Swargiary to the In-charge, Baganpara Police Outpost. The FIR stated that at
around 6 p.m. on 21.03.2010, four boys, namely, (1) Sonaram Boro (2) Bichitra
Boro (Ramchiary) (3) Nijwm Boro and (4) Pradip Boro of Simlabari Village went
to the house of Upen Deka to take a battery on rent. As they did not find Upen
Deka or his family members, they went back. On the way back, the present
appellants assaulted the four boys with sticks, due to which Sri Pradip Boro
became unconscious on the spot. He was immediately shifted to Baganpara
Hospital, wherefrom the Doctor referred him to Guwahati Medical College &
Hospital, where he succumbed to his injuries. Pursuant to the FIR, Barbari P.S.
Case No.17/2010 under Sections 341/302/34 of the IPC was registered. After
the investigation of the case was completed, the I.O. submitted the charge-
sheet having found a prima facie case under Sections 341/342/302/34 of the
IPC against the four appellants herein.
4. The learned Trial Court thereafter framed charges under Sections 341/34
and 302/34 of the IPC against the appellants, to which they pleaded not guilty
Page No.# 4/18
and claimed to be tried. The learned Trial Court thereafter examined 10
prosecution witnesses and after examining the appellants under Section 313
Cr.P.C., the learned Trial Court came to a finding that the appellants were guilty
of committing an offence under Sections 341/302/34 of the IPC. They were
accordingly convicted under the said provisions and sentence was awarded to
them, as has been referred to earlier.
5. The appellants’ counsel submits that there are contradictions in the
evidence of the four witnesses, i.e., PWs 1, 2, 3 & 5. He also submits that the
prosecution has not been able to bring out the motive for the appellants to have
allegedly assaulted the deceased Pradip Boro, who had subsequently expired in
the hospital. The learned counsel for the appellants also submits that though
the witnesses have stated in their evidence that blood was coming out from the
head of the deceased, there was nothing in the inquest report to show that
blood was coming out from the head of the deceased. He also submits that the
evidence of PW-2 is to the effect that he saw the appellant, Tarun Medhi @
Ranga Bura assaulting the deceased Pradip Boro, by tying him up with a rope in
front of the house of Upen Deka. However, PW-2 had not stated the said fact
before the police under Section 161 Cr.P.C. as well as before the Magistrate
under Section 164 Cr.P.C. He also submits that the evidence of PW-3 in his
examination-in-chief has named the appellants as the persons who had
assaulted the deceased. However, in his cross-examination, PW-3 stated that he
did not know who had assaulted whom.
6. The counsel for the appellants also submits that PW-5 had also stated in
his examination-in-chief that the appellant had assaulted the deceased Pradip
Boro with their hands and sticks and that they had also dealt a blow on the
Page No.# 5/18
head of the deceased, as a result of which, his head got fractured and blood
came out. However, the said fact was not informed by PW-5 to the police in his
161 Cr.P.C. statement.
7. The counsel for the appellants further submits that the testimony of PWs
1, 2, 3 & 5 is an improved version of the statements given by them under
Section 161 Cr.P.C. and under Section 164 Cr.P.C. He also submits that in their
161 Cr.P.C. statements PWs 1, 3 & 5 had stated that their hands were tied by
Upen Deka, which was not stated by them during recording of their evidence.
The counsel for the appellants submits that even if it is assumed that the
appellants had assaulted the deceased, there could have been no intention to
kill the deceased, especially when no weapons were seized by the police. He
also submits that Section 34 of the IPC is not attracted to the facts of this case,
inasmuch as, there was no evidence to show that there was a prior meeting of
minds, for having a common intention to kill the deceased.
8. The learned counsel for the appellants submits that as there are major
discrepancies in the evidence of the witnesses, it would not be safe to rely on
such evidence. In this regard, he has relied upon the judgment of the Hon’ble
Supreme Court in the case of Krishnegowda and Ors. Vs. State of
Karnataka by Arkalgud Police, reported in (2017) 13 SCC 98. He also
submits that Section 34 of the IPC cannot be applied to the facts of this case,
inasmuch as, there is nothing to show that the death of the deceased had
occurred in furtherance of the common intention of the appellants to kill the
deceased. In this regard, he has relied upon the judgment of the Hon’ble
Supreme Court in the case of Abdul Sayeed Vs. State of Madhya Pradesh,
reported in (2010) 10 SCC 259.
Page No.# 6/18
9. The learned counsel for the appellants thus submits that in view of the
reasons stated above, the conviction and sentence imposed upon the appellants
by the learned Trial Court, not having been supported by evidence adduced by
the prosecution witnesses, the same should be set aside and the appellants
should be acquitted of the charges framed against them.
10. Ms. A. Begum, learned Addl. P.P. submits that there is no infirmity with the
impugned judgment and order passed by the learned Trial Court, in view of the
fact that there are four eye witnesses to the assault made on the deceased by
the appellants, which ultimately led to his death in a hospital. She submits that
the 161 Cr.P.C. statement made by PW-2 to the police clearly shows that all the
appellants had assaulted the deceased. Similarly, the statement made by PW-5
under Section 161 Cr.P.C. also shows that all the appellants had assaulted the
deceased. As such, even if the cross-examination of the I.O. is to the effect that
PWs 2 & 5 did not state before the police that the appellants did not assault the
deceased, a reading of the statements made by PWs 2 & 5 under Section 161
Cr.P.C. clearly proves the fact that they had stated before the police that the
appellants had assaulted the deceased.
11. The learned Addl. P.P. also submits that the minor variations and
discrepancies in the evidence of the witnesses cannot tilt the benefit of doubt in
favour of the appellants, unless the discrepancies goes to the root of the matter.
She further submits that when there are four eye witnesses to the crime in
question, there was no occasion for the learned Trial Court to have taken a
different view than the view taken, inasmuch as, conviction can be made on the
basis of the statement of a single witness, provided the evidence of that witness
is reliable, unshaken and consistent with the case of the prosecution. In this
Page No.# 7/18
regard, she has relied upon the judgment of the Hon’ble Supreme Court in the
case of Kartik Malhar Vs. State of Bihar, reported in (1996) 1 SCC 614.
12. The learned Addl. P.P. further submits that when there are eye witnesses
to the crime in question, the absence of motive does not play an important role
to prove a case of murder. She accordingly submits that the impugned judgment
and order passed by the learned Trial Court should not be interfered with.
13. We have heard the learned counsels for the parties.
14. In the case of Krishnegowda (supra), the Supreme Court held that
generally in criminal cases, discrepancies in the evidence of witnesses are bound
to happen because there would be a considerable gap between the date of
incident and the time of deposing evidence before the Court. If these
contradictions create a serious doubt in the mind of the Court about the
truthfulness of the witnesses and it appears to the Court that there is clear
improvement in the testimony of the witnesses, it would not be safe to rely on
such evidence. Having stated the above, the Supreme Court held that there is
no absolute rule that the evidence of related witnesses have to be corroborated
by the evidence of independent witnesses. The same would be required only
when the evidence of related eye witnesses are found to be incredible and not
trustworthy. The Supreme Court further held that minor variations and
contradictions in the evidence of witnesses will not tilt the benefit of doubt in
favour of the accused, unless those contradictions goes to the root of the matter
and proves fatal to the prosecution case.
15. In the case of Abdul Sayeed (supra), the Supreme Court has held that
Page No.# 8/18
Section 34 IPC carves out an exception from general law that a person is
responsible for his own act, as it provides that a person can also be held
vicariously responsible for the act of others, if he has the “common intention” to
commit the offence. The phrase “common intention” implies a pre-arranged plan
and acting in concert pursuant to the plan. Thus, the common intention must be
there prior to the commission of the offence in point of time.
16. In the case of Kartik Malhar (supra), the Supreme Court has held that
it is open to the Court to record a conviction on the basis of the statement of a
single witness, provided the evidence of that witnesses reliable, unshaken and
consistent with the case of the prosecution.
17. In the present case, there are 4 eyewitnesses to the assault made upon
the deceased Pradip Boro by the appellants. The appellant no.1 is Upen Deka,
while the appellant no.2 is Kandarpa Deka, appellant no.3 is Tarun Medhi, who
is also known as Rang Bura. The 4 th appellant is Dipak Medhi, who is also
known as Munna Deka.
18. The evidence of PW-1 is to the effect that he had gone to the house of
Upen Deka to rent a battery for a function in his house. As Upen was not in his
home, he returned home. On the way he met Dipak Medhi, who was in an
inebriated state and who hurled abuses at PW-1 and others. A fight ensued,
whereby Kandarpa and Dipak assaulted the deceased Pradip, who fell down.
When Pradip fell down, PW-1 and his friends got frightened and they went to
the village to inform the villagers. When the villagers arrived they found the
deceased Pradip lying on the floor. He was taken to the hospital and thereafter
he died.
Page No.# 9/18
In his cross-examination, PW-1 has however stated that he did not notice as
to who had assaulted whom. However, in the later part of his cross-examination,
PW-1 has denied the suggestion that he had deposed falsely regarding seeing
Dipak Medhi and Kandarpa assaulting the deceased Pradip.
19. The evidence of PW-2 is to the effect that while he was in his house, PW-1
and PW-3 had come to his house and informed him that the appellants were
assaulting the deceased Pradip. On running to the place of occurrence, PW-2
saw that the appellant no.3 Tarun Medhi was assaulting the deceased Pradip by
tying him up with a rope.
20. The evidence of PW-3 is to the effect that they had gone to the house of
Upen Deka to take a battery in order to watch a movie. As Upen was not in his
home, they were returning back when they saw the appellants Kandarpa, Dipak
and Upen Deka assaulting the deceased Pradip. The appellants had tied the
hand and legs of Pradip and were assaulting him. PW-3 and his friends
thereafter informed the villagers, who arrived at the place of occurrence.
However, the accused persons had fled from the said place of occurrence.
In his cross-examination, PW-3 had stated that amidst the fight, they had
started running along with Pradip, the deceased. However, Pradip fell down and
someone assaulted him.
21. The evidence of PW-4 is only hearsay, as he did not see the incident.
22. The evidence of PW-5 is to the effect that at the time of incident, PW-1
and PW-3, the deceased Preadip and himself were together at the place of
occurrence. The accused appellants assaulted Pradip with their hands and
Page No.# 10/18
sticks. There was a blow on the head of Pradip, as a result of which Pradip had
a fracture on his head and blood started oozing out. Pradip also fell down as a
result of the blow. Out of fear, PW-5 remained silent, while PW-1 and PW-3 fled
out of fear. After PW-1 and PW-3 informed the villagers, the deceased was taken
to the Baganpara PHC, wherefrom the deceased was referred to the GMCH.
However, the deceased died one day after the assault in GMCH.
23. The evidence of the 4 eyewitnesses mentioned above clearly shows the
involvement of all the appellants in the assault made upon the deceased Pradip,
who eventually died. PW-1 had specifically mentioned the name of the
appellants Kandarpa Deka and Dipak Medhi. PW-2 had specifically mentioned
that he saw the appellant Tarun Medhi assaulting the deceased. He also stated
that PW-1 had told him that all the appellants by name were assaulting their
companions. PW-3 has stated that “the accused persons tied the hands and legs
of Pradip and assaulted him”. He also saw the appellant Kandarpa Deka, Dipak
Medhi and Upen Deka.
24. The evidence of PW-5 is to the effect that all the appellants assaulted the
deceased Pradip with their hands and sticks. They also dealt a blow on the head
of the deceased which resulted in the head of the deceased getting fractured
and blood started coming out. The deceased thereafter fell to the ground. Out
of fear, PW-5 remained silent. The relevant portion of the evidence of PW-5 is
reproduced hereinbelow, as follows :
“………..At the time of the incident, Bichitra, Nijwn, deceased Pradip
and I were present together at the place of occurrence. The accused
persons assaulted Pradip Boro with their hands and sticks. The accused
persons dealt blow on the head of Pradip, as a result of which his head
Page No.# 11/18got fractured and blood came out. Pradip fell down on the ground as a
result of the blow. Out of fear, I remained silent. Nijwn Boro and Bichitra
Boro fled out of fear. After committing the incident of assault, the accused
persons ran away from there. ……….”
25. With regard to the submission made by the learned counsel for the
appellants that the testimonies of PW Nos. – 1, 2, 3 & 5 were not in consonance
with the statement made under Section 161 Cr.P.C. and that it was an improved
version of the 161 Cr.P.C. statement, we find that there is no major
discrepancies in the testimonies of PW Nos. 1, 2, 3 & 5 vis-à-vis their
statements made under Section 161 Cr.P.C. PW-1 has specifically mentioned the
appellant Nos. 1, 2 and 3 as the persons who had assaulted the deceased. PW
Nos. 2, 3 & 5, in their evidence, have mentioned the names of all the 4
appellants herein as the persons, who had assaulted the deceased.
26. The statements made under Section 164 Cr.P.C by PW-1, PW-2, PW-3 and
PW-5 are basically to the effect that the appellants had tied-up the hands of the
deceased Pradip, PW-1, PW-3 and PW-5, which the prosecution witnesses
however unfastened by themselves. The appellants thereafter assaulted the
deceased Pradip, though they did not assault the other prosecution witnesses
mentioned above.
27. Thus, we find that the statements made by PW-1, PW-2, PW-3 and PW-5
under Section 164 Cr.P.C. are in consonance, not only with their statements
given under Section 161 Cr.P.C, but also with their testimony given before the
learned Trial Court. Though there may be minor discrepancies in the statements
made by the witnesses and in their evidences, we are of the view that these
minor discrepancies do not go to the root of the matter and as such, the same
Page No.# 12/18
does not give any benefit to the appellants.
28. Though the appellants have taken a stand that the motive for the
appellants to assault the deceased has not been made out, the fact remains that
the deceased had died due to the assault by the appellants. The fact of Pradip
having been assaulted by the appellants clearly proves the complicity of the
appellants in the crime that led to the death of the deceased. It is also
interesting to note that it was only the deceased who had been assaulted by the
appellants and not the others, like PW-1, PW-3 and PW-5.
29. The evidence of the doctor (PW-9) with regard to the injuries suffered by
the deceased are as follows:-
“i) A linear abrasion over the left upper chest measuring 4cmx0.25 cm.
ii) A linear abrasion over the right upper chest
iii) 5cm x 0.25 cm.
Thorax: The thoracic organs were congested and healthy. Stomach are
healthy and empty.
Cranium and Spinal Canal: Scalp – Grossly contused all over the scalp
Skull- Depressed fractured over the frontal bone. Measuring– 3cm x
5 cm.
Fracture is also present over the frontal bone on right side and over
the right temporal bone. Vartebrae were healthy . membrane- were
congested. Extra dural haemorrhage over right frontal lobe. Sub arachnoid
haemorrhage over the right side, brain–laceration of the right frontal
bone. Spinal cord not examined
Opinion:
Death was due to coma as a result of injuries to the head described.
The injuries were ante mortem being caused by blunt force impact and
homicidal in nature.”
Page No.# 13/18
30. As can be seen, the injuries on the scalp of the deceased were severe, as
there was a depressed fracture on his skull, besides his scalp being grossly
contused all over. Further, there was external haemorrhage over the right side
frontal lobe of the deceased.
31. In the case of Singapagu Anjaiah Vs. The State of Andhra Pradesh,
reported in (2010) 9 SCC 799, the Supreme Court has held that intention has
to be gathered from the weapon used, the part of the body chosen for the
assault and the nature of the injuries caused. Para 16 of the said judgment is
reproduced hereinbelow as follows:-
“In our opinion, as nobody can enter into the mind of the accused,
his intention has to be gathered from the weapon used, the part of the
body chosen for the assault and the nature of the injuries caused. Here,
the appellant had chosen a crowbar as the weapon of offence. He has
further chosen a vital part of the body i.e. the head for causing the injury
which had caused multiple fractures of skull. This clearly shows the force
with which the appellant had used the weapon. The cumulative effect of
all these factors irresistibly leads to one and the only conclusion that the
appellant intended to cause death of the deceased.”
32. Considering the beating inflicted upon the deceased by the 4 appellants
and which was also on a vital part of the body of the deceased, it appears that
a case of murder has been made out. Even though, there was no seizure of any
weapon, it would have been in the knowledge of the appellants that an assault
on one person by four persons, could lead to very severe injuries, which could
lead to his death. The next question to be decided is whether there was any
common intention on the part of the appellants to kill the deceased.
Page No.# 14/18
33. As can be seen from the records, Bichitra Boro, Nizam Boro, deceased
Pradip Boro and Sonaram Boro had allegedly gone to the house of Upen Deka to
take a battery on rent, as they wanted to see a movie. However, Upen Deka not
being in his house, they returned back. However, as per the evidence of PW-1,
they met Dipak Medhi, who was also known as Munna Deka, i.e., the appellant
No.4, on the way back. Dipak Medhi, who was in an inebriated state, started
hurling abuses on the deceased, PWs- 1, 3 and 5. A fight ensued, wherein the
appellant Kandarpa and Dipak started assaulting Pradip. The eye witness (PW-5)
has stated that the appellants had used hands and sticks while assaulting the
deceased. The above facts shows that some of the appellants were without any
weapon and during the fight, the head of the victim was hit. Deceased Pradip
was assaulted by (1) Upen Deka, (2) Munna Deka @ Dipak Medhi, (3) Kandarpa
Deka and (4) Ronga Bura @ Tarun Medhi. Though the assault had started from
some verbal abuse made by one of the appellants against Pradip Boro, PW Nos.
1, 3 & 5, there is a question mark as to why only the deceased was earmarked
by the appellants for the assault.
34. As the evidence and the statements made by the witnesses before the
police show that the attack/assault by the appellants was concentrated only on
the deceased Pradip without the others being assaulted, it appears that there
was a common intention on the part of the appellants, to inflict injury only upon
the deceased Pradip, but not to kill him. However, due to the injury sustained by
the deceased on his head, the deceased had succumbed to the same.
35. In the case of Rajkishore Purohit Vs. The State of Madhya Pradesh
& Ors., reported in (2017) 9 SCC 483, the Supreme Court has held that
Page No.# 15/18
common intention is a state of mind and there can hardly be direct evidence of
common intention. The existence or non-existence of a common intention
amongst the accused has to be deciphered cumulatively from their conduct and
behavior in the facts and circumstances of each case. Events prior to the
occurrence as also after, and during the occurrence are all relevant to deduce if
there existed any common intention. There can be no straitjacket formula. The
absence of any overt act of assault, exhortation or possession of weapon cannot
be singularly determinative of absence of common intention.
36. There is nothing to show that there was any previous enmity between the
parties. As has been held by the Supreme Court in Rajkishore
Purohit(supra), common intention has to be deciphered cumulatively from
their conduct and behavior, by looking into the events prior to the occurrence as
also after the occurrence and the events during the occurrence. All the events
are relevant factors to come to a finding as to whether there existed any
common intention. In the present case, no evidence has been presented by
anyone to show that there was any previous enmity between the appellants and
the deceased/eye witness. If there was some premeditation and common
intention to kill the deceased, in all likelihood the appellants would have been
armed to inflict maximum damage. However, the same is absent in the present
case. There is also nothing to show that a plan had been made by the
appellants to kill the deceased.
37. Para 10 of the judgment in Rajkishore Purohit(supra) states as
follows:-
“10. Though judicial precedents with regard to common intention
stand well entrenched, it will be sufficient to refer State of Rajasthan vs.
Page No.# 16/18Shobha Ram, (2013) 14 SCC 732, observing as follows :-
“10. Insofar as common intention is concerned, it is a state of mind of
an accused which can be inferred objectively from his conduct displayed
in the course of commission of crime and also from prior and subsequent
attendant circumstances. As observed in Hari Ram v. State of U.P. (SCC p.
622, para 21), the existence of direct proof of common intention is seldom
available and, therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case and the proved
circumstances. Therefore, in order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of mind of all the accused
persons to commit the offence before a person can be vicariously
convicted for the act of the other.”
38. On considering the fact that there was no past enmity and death had
resulted from a fight, which was also due to one of the appellants hurling
abuses due to being drunk, we are of the view that there was no common
intention on the part of the appellants to kill the deceased, even though all 4
appellants might have attacked the deceased. In fact, we are of the view that
there was no intention on the part of any of the appellants to kill the deceased.
39. Exception 4 of Section 300 IPC states as follows:-
“Exception 4- 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 offender having taken undue advantage
or acted in a cruel or unusual manner.”
Section 304 IPC states as follows:-
Page No.# 17/18
“304. Punishment for culpable homicide not amounting to
murder.-
Whoever commits culpable homicide not amounting to murder, shall
be punished with 1 [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to
cause death;
or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is likely to cause death.”
40. As a fight had started from a verbal abuse being made by one of the
appellants, which resulted in a fight, there is nothing to show that there was
any premeditation or intention to kill the deceased by the appellants, though
ganging up by the 4 appellants against the deceased was patently unfair and
wrong. On considering all the above facts, the present case does not appear to
be a murder case. We are of the view that the assault on the deceased by the
appellants which resulted in his death, comes within the provisions of Section
304 Part-II of the IPC, inasmuch as, the appellants can be said to have done the
act with the knowledge that it was likely to cause death, or to cause such bodily
injury as was likely to cause death, but without any intention to cause death.
41. The appellants are accordingly convicted under Section 304 Part-II of the
IPC and sentenced to undergo rigorous imprisonment for 8 years with a fine of
Rs.5,000/- each, in default, to undergo simple imprisonment for 2(two) months.
Consequently, the impugned judgment dated 20.01.2022 and sentence order
dated 21.01.2022, passed by the learned Trial Court in Sessions Case
Page No.# 18/18
No.249/2018 are hereby set aside, to the extent indicated above.
The appeal is accordingly dismissed.
Send back the TCR.
JUDGE JUDGE Comparing Assistant