1 2025:CGHC:59939-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 582 of 2018 Mahavir Soni S/o Late Omprakash Soni Aged About 36 Years R/o Sarafa Line, Ganj Bazar, Kharsiya, District Raigarh Chhattisgarh --- Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station Kharsiya, District Raigarh Chhattisgarh --- Respondent CRA No. 578 of 2018 1 - Shani Sidar S/o Ram Charan Sidar Aged About 23 Years, 2 - Kanhaiya @ Pintu @ Jholudas (died and abated), 3 - Bhagdan @ Devnath S/o Govind Chauhan Aged About 20 Years, 4 - Neeraj @ Sonu S/o Vijay Kumar Aged About 22 Years, All are R/o Kharsiya, Tehsil Kharsiya, District Raigarh, P. S. Kharsiya, Chhattisgarh, Chhattisgarh ---Appellants Versus State Of Chhattisgarh Through The Station House Officer, Police Station Kharsiya, District Raigarh, Chhattisgarh, District : Bilaspur, Chhattisgarh --- Respondent CRA No. 584 of 2018 1 - Shrikishan Agrawal S/o Late Phoolchand Agrawal Aged About 64 Years (wrongly mentioned as 52 years) BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.12.12 18:34:29 +0530 2 2 - Rocky @ Rakhi Agrawal S/o Shrikishan Agrawal Aged About 35 Years; (wrongly mentioned as 31 years) 3 - Nitish @ Nitu Agrawal S/o Shrikishan Agrawal Aged About 31 Years; (wrongly mentioned as 27 years) All above R/o Kharsiya, Police Station Kharsiya, District Raigarh Chhattisgarh ---Appellants Versus State Of Chhattisgarh Through SHO, Police Station Kharsiya, District Raigarh Chhattisgarh --- Respondent CRMP No. 1396 of 2018 Pawan Kumar Agrawal S/o Shri Gajendra Prasad Agrawal Aged About 46 Years R/o Sarafa Bazar, Kharsiya, District Raigarh, Chhattisgarh ---Applicant Versus 1 - Mukesh Agrawal S/o Kishori Lal Aged About 36 Years, 2 - Sunil @ Bablu S/o Mangeram Agrawal Aged About 35 Years, 3 - Sanjay Agrawal S/o Omprakash Aged About 36 Years, All are residents of Kharsiya, Police Station Kharsiya, District Raigarh, Chhattisgarh 4 - The State Of Chhattisgarh Through The Officer Incharge, Police Station Kharsiya, District Raigarh, Chhattisgarh --- Respondents CRMP No. 1683 of 2018 State Of Chhattisgarh Through : Station House Officer, Police Station Kharsiya, District Raigarh, Chhattisgarh ---Applicant Versus 1 - Mukesh Agrawal S/o Kishori Lal Aged About 36 Years, 2 - Sunil @ Bablu S/o Mangeram Agrawal Aged About 35 Years, 3 - Sanjay Agrawal S/o Omprakash Aged About 36 Years, 3 Respondents No.1 to 3 all are R/o. Kharsiya, District- Raigarh, Chhattisgarh --- Respondents For Appellant- Mahavir Soni For Appellants- Shani Sidar and others For Appellants- Shrikishan Agrawal and others For Applicant- Pawan Kumar Agrawal For Applicant- State : : : : : Mr.Surfaraj Khan, Advocate in CRA No.582/2018 Mr.Sunil Otwani, Senior Advocate assisted by Mr.Amit Soni, Advocate in CRA No.578/2018 Mr.Manoj Paranjape, Senior Advocate with Mr.Ankit Shinghal and Mr.kabeer Kalwani, Advocate in CRA No.584/2018 Mr.Abhishek Pandey, Advocate in CRMP No.1396/2018 Mr.U.K.S.Chandel, Deputy Advocate Geneneral For Respondent- Objector : Mr.T.K.Jha, Avocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on board Per Ramesh Sinha, Chief Justice 10.12.2025 1. Since the aforesaid three criminal appeals and two CRMPs have been filed against the impugned judgment dated 6.4.2018 passed by the First Additional Sessions Judge, Raigarh in Sessions Case No.533/2014, they were clubbed & heard together and being disposed of by this common judgment. 4 2. Appellant-Mahavir Soni has preferred Criminal Appeal No.582/2018, appellants-Shani Sidar, Kanhaiya @ Pintu @ Jholudas (died and abated), Bhagdan @ Devnath & Neeraj @ Sonu have preferred Criminal Appeal No.578/2018, appellants- Shrikishan Agrawal, Rocky @ Rakhi Agrawal & Nitish @ Nitu Agrawal have preferred Criminal Appeal No.584/2018 under Section 374(2) of the CrPC questioning the impugned judgment dated 6.4.2018 passed by the First Additional Sessions Judge, Raigarh in Sessions Case No.533/2014, by which they have been convicted and sentenced as under: Offence Sentence Under Section 302 read with Section 149 of the IPC Imprisonment for life and fine of ₹ 1000/-, in default of payment of fine to further undergo RI for one year Under Section 147 read with Section 149 of the IPC RI for six months and fine of ₹ 500/-, in default of payment of fine to further undergo RI for one month 3. Applicant-Pawan Kumar Agrawal has preferred CRMP No.1396/2018 and applicant-State has preferred CRMP No.1683/2018 against the impugned judgment dated 6.4.2018 passed by the First Additional Sessions Judge, Raigarh in Sessions Case No.533/2014, whereby the trial Court has acquitted respondents No.1 to 3 for offences under Section 147 read with Section 149 of the IPC and Section 302 read with Section 149 of the IPC. 5 4. Brief facts of the case, in a nutshell, are that 24.10.2013 at 10:45 P.M., there was a birthday party for Vikky Agarwal's son at Kanya Bhawan, Kharsia. Accused Rocky and Mahavir and deceased Kalu @ Promod, were present. A dispute arose over DJ music, leading to a confrontation between the accused and the deceased. The two accused then called the other accused to the scene. Rocky hit the deceased with a stone, Mahavir with an iron rod, and the others with kicks and fists, resulting in the death of Kalu @ Promod. Complainant Pawan Agarwal reported the incident, and a sudden death inquiry was registered vide Ex.P-1 against the accused under Sections 147, 302 of the IPC. Spot map was prepared by the patwari vide Ex.P-2. Memorandum statement of appellant Rocky @ Rakhi Agrawal was recorded vide Ex.P-3. Inquest over the body of the deceased was prepared vide Ex.P-5. Memorandum statement of appellant Mahavir Soni was recorded vide Ex.P-7. One iron rod was seized at the instance of appellant Mahavir Soni from open place vide Ex.P-8. Bloodstained soil, plain soil and square stone of 5 kg. stains with were seized from the spot vide Ex.P-9. Bloodstained shirt of the deceased was seized vide Ex.P-10. Merg intimation was recorded by complainant Pawan Agrawal vide Ex.P-20 and on the basis of merg, FIR in Crime No.465/13 was registered vide Ex.P-11. Dead body of the deceased was sent for postmortem to Civil Hospital, Kharsiya, where Dr.Smt.Lalita Rathiya (PW-16) conducted postmortem over the body of the deceased vide Ex.P- 6 17 and found following injuries:- “i. One contusion 3x2 cm on left shoulder anterior aspect. ii. One lacerated wound 4x4x2 cm on occipital region margin irregular. Bleeding from wouind. iii. One lacerated wound 3x3x2 com on left temporal region behind left ear. Skull bone fracture on left temporal region & there was hole 3x3x2 on left temporal region & brain matter protruding from that hole. iv. One contusion 12 x 2 cm on right side of chest. v. One contusion 10 x 2 cm on right side of axilla. VI. One hematoma 6x5 cm on left frontal region. Clotted blood present on hematoma on left frontal region. The doctor has opined that cause of death was come due to head injury caused by hand, blunt & heavy object with momentum. Nature of death was homicidal. Stone seized from the spot was examined by Dr.Smt.Lalita Rathia (PW-16) and opined that the injury mentioned in postmortem report of Kalu @ Pramod Agrawal can be inflicted by this type of article. Appellant Mahavir was arrested on 29.01.2015 vide arrest memo Ex.P-18. Iron rod seized at the instance of appellant Mahavir Soni was examined by the doctor vide Ex.P-19 and opined that the injuries mentioned in the postmortem report of Pramod Agrawal can be inflicted by this type of article. However, on the iron rod no any blood stains seen. Appellant Nitish Agrawal was arrested on 21.11.2014 vide arrest memo Ex.P-20. Investigating officer also prepared the spot 7 map vide Ex.P-21. Accused Mukesh Kumar Agrawal was arrested on 25.10.2013 vide arrest memo Ex.P-24. Accused Sanjay Agrawal was arrested on 25.10.2013 vide Ex.P-25. Accused Sushil Agrawal was arrested on 25.10.2013 vide arrest memo Ex.P-26. Appellant Shrikishan Agrawal was arrested on 25.10.2013 vide arrest memo Ex.P-27. Kanhaiya Vaishnav (now dead) was arrested on 25.10.2013 vide Ex.P-28. Appellant Shani Sidar was arrested on 25.10.2013 vide arrest memo Ex.P-29. Appellant Neeraj Yadav was arrested on 25.10.2013 vide arrest memo Ex.P-30. Appellant Rocky @ Rakhi Agrawal was arrested on 07.11.2013 vide Ex.P-31. Appellant Bhagdan @ Devnath Chouhan was arrested on 26.10.2013 vide Ex.P-32. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-37), human blood was found on stone Article “C” seized from open place. Statements of material witnesses were duly recorded under Section 161 of the Cr.P.C. 5. Upon completion of investigation, the police filed a charge-sheet for offence under Sections 147 & 302 of the IPC before the learned Judicial Magistrate First Class, Kharsia, who in turn committed the case to the Court of Session, Raigarh, from where the First Additional Sessions Judge, Raigarh received the case on transfer for trial in accordance with law. 6. During the trial, the prosecution examined 19 witnesses and exhibited 37 documents (Ex. P-1 to Ex. P-37) in support of its 8 case. The accused, in their statements recorded under Section 313 of the Cr.P.C., denied all incriminating circumstances put to them and claimed false implication and examined defence witnesses Anoop Kumar Sahu (DW-1), Prince Singhaniya (DW-2) and Ramesh Nathani Gorkha (DW-3) in their support and also produced documentary evidence in their support. 7. The learned trial Court, upon a thorough appreciation of the oral and documentary evidence brought on record, by judgment dated 6.4.2018 while acquitting respondents Mukesh Agrawal, Sunil @ Bablu and Sanjay Agrawal has convicted and sentenced the present appellants as aforementioned. Hence, these appeals and CRMPs. 8. Mr. Sunil Otwarni, learned Senior Advocate, assisted by Mr. Amit Soni, learned counsel for the appellants in CRA No. 578/2018, submits that the appellants have not committed any offence and have been falsely implicated in the case. He further submits that none of the four eyewitnesses examined by the prosecution has made any allegation against the appellants regarding the infliction of fatal injuries on the deceased. There is no evidence to show that the appellants were carrying an iron rod in their hands. In the FIR as well as in two merg intimations (Ex.D-2 and Ex.P-20), the names of the appellants do not appear. Their names were subsequently added in the police statement recorded under Section 161 CrPC, that too in the last line of the statement, which 9 is contradicted by the statement recorded under Section 164 CrPC. He also submits that the omission of the appellants’ names in the FIR (Ex.P-1), which was lodged by Pawan Agrawal (PW-1), who himself is an eyewitness, is fatal as it strikes at the very root of the matter. This omission completely undermines the credibility of the prosecution’s case against the appellants. The failure to mention any role or injury attributed to the appellants either in the FIR or in the statements under Sections 161 and 164 CrPC is highly significant in the facts of the case. He contends that the omission to name the appellants in the earliest version, despite alleged knowledge, constitutes a material lacuna that goes to the heart of the prosecution case and gravely impairs its credibility. No explanation was offered by Pawan Agrawal (PW-1) for omitting the names of the appellants at the earliest opportunity. Pawan Agrawal (PW-1) attempted to modulate and improve his versions after the FIR and merg intimations. His testimony, so far as it concerns the present appellants, is full of contradictions. Learned counsel further contends that the prosecution has failed to prove beyond reasonable doubt that the appellants were members of an unlawful assembly with a common object under Section 149 of the IPC. Mere presence in a crowd does not automatically establish membership of an unlawful assembly under Section 149 of the IPC, and to fasten constructive liability, the prosecution must prove beyond reasonable doubt that each accused shared the common object. He relied upon the recent 10 judgments of the Supreme Court in the matters of Govind Mandavi v. State of Chhattisgarh, 2025 INSC 1399 (para 45) and Zainul v. The State of Bihar, 2025 INSC 1192 (para 45 and 61). 9. Mr.Manoj Paranjape, learned Senior Advocate assisted by Mr.Ankit Shinghal and Mr.Kabeer Kalwani, learned counsel appearing for the appellants in CRA No.584/2018 submits that the appellants have not committed any offence and they have falsely been implicated in offence in question. He further submits that learned trial Court ought to have appreciated that in support of its case the prosecution has examined four eyewitnesses and all of them are interested witnesses and no reliance can be placed on their testimony. He also submits that learned trial Court ought to have appreciated that as per the admitted case of the prosecution the incident took place in presence of so many persons, but even then, not a single independent eye witness was examined by the prosecution to prove its case beyond reasonable doubt. Learned trial Court ought to have appreciated that as per the statement of Amit Agrawal (PW-3), there was single blow inflicted by appellant No.2-Rocky @ Rakhi Agrawal and co-accused Mahavir, which is corroborated by medical evidence as well Ex.P-17. Hence, it is clear that there was no intention on the part of the appellants to commit murder and they have not taken undue advantage of their position. He relied upon the judgments of the Supreme Court in the matters of Rambilas 11 Singh and others v. State of Bihar, (1989) 3 SCC 605 and Vijay @ Vijayakumar v. State represented by Inspector of Police, 2025 INSC 90. 10. Mr.Surfaraj Khan, learned counsel for the appellant in CRA No.582/2018 submits that the present appellant has not committed any offence and he has falsely been implicated in offence in question. He further submits that learned trial Court ought to have appreciated that as per the case of the prosecution, with regard to some old animosity, the deceased and appellant and co-accused Rocky were quarrelling and then co-accused Rocky called other accused persons, who came on the spot, but none of them were carrying any weapon. Had there been any intention on the part of the appellant, they would have come armed with weapon and hence, no offence under Section 302 of the IPC is made out. He also submits that the trial Court ought to have appreciated that the witnesses of memorandum and seizure have not supported the case of the prosecution and have turned hostile and therefore, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. 11. Lastly they submit that learned trial Court failed to properly evaluate the evidence brought on record and has erroneously convicted the appellants under Section 302/149 of the IPC, even though the material on record, if appreciated in its correct perspective, would reveal that the occurrence was sudden, 12 devoid of premeditation, and took place in the heat of passion, without any motive or intention on the part of the appellants to cause the death of the deceased. There was no intention to cause death, though at best, knowledge may be attributed to the appellants. It is therefore urged that the case falls squarely within the ambit of Exception 4 to Section 300 of the IPC. Consequently, the conviction of the appellants under Section 302 IPC deserves to be modified to one under Section 304 IPC (Part I or Part II), as may be deemed appropriate. Accordingly, it is prayed that the criminal appeals be allowed, either fully or at least to the extent of altering the conviction and reducing the sentence. 12. Mr. U.K.S.Chandel, learned Deputy Advocate General appearing for the respondent-State and Mr.T.K.Jha, learned counsel appearing for the objector oppose the submissions made by learned counsel for the appellants and submit that learned trial Court after considering the evidence available on record has rightly convicted and sentenced the appellants which warrants no interference by this Court. 13. Mr.Abhishek Pandey, learned counsel for applicant-Pawan Kumar Agrawal in CRMP No.1396/2018 and Mr.U.K.S.Chandel, learned Deputy Advocate General appearing for the applicant-State in CRMP No.1683/2018 submit that the trial Court has committed grave legal error in acquitting respondents-Mukesh Agrawal, Sunil @ Bablu and Sanjay Agrawal as there ample evidence 13 available on record to connect them in crime in question. As such, leave to appeal deserves to be allowed. 14. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 15. The first question for consideration before this Court is whether the death of the deceased was homicidal in nature ? 16. The trial Court after appreciating oral and documentary evidence available on record, particularly relying upon the statement of Dr.Smt.Lalita Rathiya (PW-16), who conducted postmortem, has come to the conclusion that cause of death was coma due to head injury caused by hand, blunt & heavy object with momentum and manure of death was homicidal. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death of deceased Kalu @ Pramod Agrawal was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by learned counsel for the appellants. We hereby affirm that finding. 17. Now the next question for consideration is whether the accused- appellants herein are the perpetrator of the crime in question ? 14 18. In the present case, the prosecution has examined Pawan Kumar Agrawal (PW-1), Ajay Kumar Agrawal (PW-2), Amit Agrawal (PW-3) and Shyam Lal Agrawal (PW-4) as eyewitnesses. 19. Pawan Kumar Agrawal (PW-1) in para 1 of his evidence has stated that it was the night of 24.10.2013. At Vikky Agarwal's son's birthday party, there was an argument between Rocky Agarwal and Kalu Agarwal over an old grudge. He was also at the party. Rocky said, "You escaped two-three years ago, but not today." Rocky called his brothers and father, and Mahavir Soni called some tough guys on the phone. When they arrived, Shri Kishan Agarwal, Nidu Agarwal, Mukesh Agarwal, Bablu Agarwal, Sanjay Agarwal, Kanhaiya @ Pintu Vaishnav, Neeraj Yadav, Bhagdan Chauhan, and Sunny Sidar, Rocky said, "You won't escape today." They all started beating Kalu with fists. Rocky hit Kalu's head with a stone, Mahavir Soni hit him with an iron rod. Kalu fell in front of Axis Bank, blood was coming out, and they all fled. Shyam Agarwal, Satish Guru, Amit Agarwal, and Ajay Agarwal took Kalu to Dr. R.C. Agarwal’s clinic. The doctor checked him and said he was dead, suggesting they take him to the Government Hospital. In para 2, he has stated that he went to the police station afterward and gave the information. Ex.P-1 is the FIR with his signature from A to A. The police recorded his statement the next day. Two days later, his nephew called saying the Patwari wanted him at Kanya Bhavan. He went, and the 15 Patwari asked where the murder happened. He showed him the spot. Ex.P-2 is the site map with his signature from A to A. 20. Ajay Kumar Agrawal (PW-2) has stated that on 24.10.2013 there was Vikky Agarwal’s son’s birthday party at Kanya Bhavan, with many people. A fight broke out between Kalu and Rocky and Mahavir over DJ. They calmed it down, but they started abusing and called their people. Outside, they beat Kalu. Rocky brought tough guys with Mahavir’s phone. Rocky hit Kalu with a stone, Mahavir with a rod. Kalu died on the spot. Police questioned him and recorded his statement. 21. Amit Agrawal (PW-3) stated that the incident took place on 24.10.2013. He had gone to Vikky Agarwal’s birthday party. As he was leaving, he saw Kalu Agarwal arguing with Rocky and Mahavir over some past issue. He asked his brother what had happened. Kalu was holding Neeraj Yadav and said, “These guys are beating him.” He asked who they were, and Kalu replied, “They’re thugs.” When he asked why this was happening, Kalu said, “Rocky called them.” A little later, Shri Kishan Agarwal, Nitu, Sanjay, Bablu Agarwal, and Mukesh Agarwal arrived. Shortly after that, his father came, calmed Kalu down, and told him to go home. After his father left, the situation seemed to settle. Then Neeraj Yadav ran away. Kalu chased him, followed by Rocky, Mahavir Soni, Shri Kishan, Sanjay, Mukesh, and Bablu. Kalu caught Neeraj and started hitting him. Then those people caught 16 hold of Kalu and began beating him. In paragraph 3 of his testimony, he stated that he saw Rocky hit Kalu with a stone and Mahavir strike him with an iron rod. Kalu fell to the ground, and the others fled. He moved closer and tried to lift Kalu, but he did not get up. When he placed his hand on Kalu’s head, it became bloody. He shouted for his uncles, and Shyam Chacha and Ajay came. They placed Kalu on a scooter; Ajay drove, and he and a Sindhi man held Kalu, pressing on his head. He told his uncle to take Kalu to Dr. R.C. Agarwal’s clinic. He said, “Call the doctor; he will come for you.” They took Kalu to the doctor and laid him on the table. The doctor checked his pulse and said, “There’s nothing left in him.” 22. Shyam Lal Agrawal (PW-4) stated that the incident occurred on 24.10.2013. He had been invited to a birthday party at Mukesh Agarwal’s house, so he went. At around 10:30 P.M., he saw Mahavir Soni and deceased Kalu, arguing. Rocky and Mahavir were physically aggressive toward Kalu. He tried to intervene and persuaded Kalu to go home. At that moment, Rocky said, “You escaped two or three years ago, but not today.” Rocky then called his family members, and Mahavir called his associates. They surrounded Kalu in front of Axis Bank and began beating him. Rocky struck Kalu with a stone, and Mahavir struck him with an iron rod. Kalu’s head split open, and he fell to the ground. In paragraph 3 of his testimony, the witness stated that some of the accused kicked Kalu while others punched him. When Kalu 17 collapsed, he, along with Ajay, Anil, Pawan, and a couple of others, reached the spot. They took Kalu to Dr. Agarwal’s clinic on a scooter. Dr. Agarwal examined him on the table and said that he had passed away. The police later recorded his statement regarding the incident. 23. The Supreme Court in the matter of Rambilas Singh (supra) has held as under:- “7. On a consideration of the matter, we find that the view taken by the High Court for convicting the appellants cannot be sustained. Even accepting the prosecution case in full and holding that the appellants were present at the scene at the time of occurrence, the materials on record would not warrant a finding that the individual act of Dinesh Singh had been perpetrated in furtherance of the common intention of all the accused assembled there or in prosecution of a common object formed by all of them. It is true that in the morning, there was an incident in which Kumar Gopal Singh had abused A-2, A-16 and one of their womenfolk for plucking khesari crops from his land and had snatched away the plucked plants as well as their baskets but it is highly improbable that by way of retaliation for that incident, the accused would have all joined together and planned to commit the murder of Kumar Gopal Singh and for that purpose as many as sixteen persons had come together to commit the murder. Even if they had wanted to have an encounter with the deceased, it could have been only to pick up a quarrel with him for the abuse hurled by him in the morning and for his 18 snatching away the baskets along with the Khesari plants that had been plucked. A significant factor to be borne in mind is that there is no evidence to show that the appellants had known that Dinesh Singh was carrying a knife when they surrounded him. If they had no knowledge that Dinesh Singh was carrying a knife, they could not even have remotely thought that he would be inflicting a stab injury on the deceased. If it was the intention of all the appellants that Kumar Gopal Singh should be done to death, it is inconceivable that they would have come without any weapons except for the knife brought by Dinesh Singh and that they would not have launched an attack on Kumar Gopal Singh would have rested content with the single stab, inflicted by Dinesh Singh. This would not be the conduct of persons if they had come to the scene with the common intention or common object of committing the murder of Kumar Gopal Singh and were lying in wait for him. Another important factor to be noticed is that the prosecution seem to have realised that the version of the occurrence given in the fardbeyan would not be enough for festering constructive liability on the other accused for the overt act of Dinesh Singh and hence some overt acts must be attributed to them in order to make it appear that the attack on the deceased had been planned by all of them. It is obvious that with that end in view PWs 1, 18 and 22 had tried to make out in their evidence that three of the accused had caught hold of PW 1, four of the accused had caught hold of PW 22, and four others had caught hold of the deceased and one of the accused had caught hold of the deceased's cycle. There is inter-se discrepancy in the evidence of PWs 19 1, 18 and 22 regarding the names of the accused who had caught hold of the deceased and the witnesses but even if the discrepancies are overlooked, there remains the fact that there is no mention whatever in the fardbeyan about some of the accused persons catching hold of the deceased or the witnesses before Kumar Gopal Singh was stabbed by Dinesh Singh. There is therefore room for genuine doubt whether PWs 1, 18 and 22 have purposely made embellishments in their evidence in order to make the other accused constructively liable for the offence committed by Dinesh Singh. The High Court has failed to take note of all these factors and has too readily acted on the assumption that since all the appellants and Dinesh Singh were present at the scene and Dinesh Singh had inflicted a stab injury on the deceased, it must necessarily be held that all the accused have forged a common intention or arrived at a common object viz. to commit the murder of Kumar Gopal Singh and in pursuance of it the murder was committed and hence all of them are constructively liable under Section 302 read with Section 149/34 IPC. It is true that in order to convict persons vicariously under Section 34 or Section 149 IPC, it is not necessary to prove that each and everyone of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly. In this case, such evidence is lacking and hence the appellants cannot be held liable for the individual act of Dinesh Singh. ” 20 24. The Supreme Court in the matter of Vijay @ Vijayakumar (supra) has held as under:- “30. The deceased is said to have uttered some bad words and it appears that he also raised his hand & slapped the appellant herein. However, that by itself may not be sufficient to bring the case within the ambit of grave and sudden provocation. 31. The incident occurred at a spur of a moment. The act was not pre-planned or pre-meditated. What is important to note is that the appellant had no weapon in his hands. He picked up a cement stone which was lying beneath the bridge and hit the same on the head of the deceased. Therefore, it could be said that the appellant did not take any undue advantage or acted in a cruel or unusual manner. 32. Be that as it may, we are not inclined to disturb the conviction of the appellant – herein. 33. We are of the view that the ends of justice would be met if the sentence imposed by the Trial Court and affirmed by the High Court is reduced to the period already undergone. 34. The appeal stands partly allowed. While upholding the conviction, we reduce the sentence to the period already undergone.” 25. The Supreme Court in the matter of Zainul (supra) has held as under:- “45. Albeit the essentials of Section 149 of the IPC are oft-repeated and firmly established, they are reiterated herein for the sake of convenience: 21 i. There must be an assembly of five or more persons; ii. An offence must be committed by any member of that unlawful assembly; iii. The offence committed must be in order to attain the common object of that assembly, or iv. The members of the assembly must have the knowledge that the particular offence is likely to be committed in order to attain the common object. 61. The law on the point can be summarized to the effect that where there are general allegations against a large number of persons, the court must remain very careful before convicting all of them on vague or general evidence. Therefore, the courts ought to look for some cogent and credible material that lends assurance. It is safe to convict only those whose presence is not only consistently established from the stage of FIR, but also to whom overt acts are attributed which are in furtherance of the common object of the unlawful assembly.” 26. The Supreme Court in the matter of Govind Mandavi (supra), the Supreme Court has held as under:- “45. Hence, we are of the firm view that the omission of the names of the accused in the FIR (Exh. P/2), which was lodged on the basis of the information provided by Smt. Sukmai Hidko (PW-2) to Heeralal Hidko (PW-1) is fatal as it goes to the very root of the matter. The said omission completely impeaches the credibility of the prosecution’s case.” 22 27. In the present case, the appellants have relied upon the decisions in Rambilas Singh (supra), Vijay @ Vijayakumar (supra), Zainul (supra) and Govind Mandavi (supra) to argue that the omission of names in the FIR and the allegation of general participation in a mob would vitiate the prosecution case. However, the factual matrix of those judgments is fundamentally different and therefore cannot be applied to the instant case. 28. Firstly, unlike Rambilas Singh (supra), where the Supreme Court found no reliable material to establish a common intention or common object, and noted serious contradictions in attribution of overt acts, the present case is supported by four eyewitnesses Pawan Kumar Agrawal (PW-1), Ajay Kumar Agrawal (PW-2), Amit Agrawal (PW-3) and Shyam Lal Agrawal (PW-4). Each of them was present at the birthday event, each witnessed the quarrel escalate, and each has attributed specific overt acts to Rocky and Mahavir (stone blow and iron rod blow), with consistent narration that other co-accused formed part of the group that surrounded and assaulted Kalu. Unlike in Rambilas Singh (supra), here the role of group assault, the formation of the unlawful assembly, and the participation of the named accused are consistently and coherently narrated by all eyewitnesses. 29. Secondly, Vijay @ Vijayakumar (supra) dealt with a solitary accused, an individual act, without pre-meditation and without common object. That decision concerned sentence reduction, not 23 applicability of Sections 34/149. In contrast, the present case clearly involves a mob assault, and multiple eyewitnesses proved that the accused persons arrived together upon being called, surrounded the deceased, and jointly beat him. Thus, the ratio of Vijay @ Vijayakumar (supra) has no application. 30. Thirdly, the appellants’ reliance on Zainul (supra) is misplaced because that judgment emphasizes the need for credible, cogent material establishing the presence and roles of accused persons in an unlawful assembly. In the present case, the evidence of eyewitnesses namely Pawan Kumar Agrawal (PW-1), Ajay Kumar Agrawal (PW-2), Amit Agrawal (PW-3) and Shyam Lal Agrawal (PW-4) fully satisfies the standard laid down in Zainul (supra) as all four eyewitnesses consistently name the accused, describe their arrival, participation, and specific roles in the group assault, thereby providing material far beyond general or vague allegations. 31. Fourthly, in Govind Mandavi (supra) the Supreme Court held that non-mention of names in such circumstances destroyed the prosecution case. However, the present FIR was lodged immediately after a mob assault, and the law is well-settled that when an incident occurs suddenly in a crowd, the informant may not be in a mental state to recall or write down the names of every assailant. What is crucial is that eyewitnesses, upon regaining composure, consistently identified the accused persons 24 in their sworn testimony, and their presence is corroborated by the surrounding circumstances. Therefore, omission of names in the FIR does not in any manner undermine the prosecution here. Accordingly, the judgments cited by learned counsel for the appellants do not apply to the facts of the present case. Here, the consistent and trustworthy testimony of four eyewitnesses clearly establishes that the accused formed an unlawful assembly, assaulted the deceased jointly, and that Rocky and Mahavir inflicted fatal blows with a stone and an iron rod respectively. The prosecution case rests on direct ocular testimony and not on conjecture or hearsay; therefore, the accused cannot derive any benefit from the precedents relied upon. 32. Considering the aforesaid oral and documentary evidence, the learned trial Court has rightly held that it is the appellants- accused who have caused injuries over the body of the deceased due to which he died. Accordingly, we hereby affirm the said finding. 33. The aforesaid finding brings us to the next question for consideration, whether the case of the appellants is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 34. Thus, while the prosecution has been able to establish that the 25 appellants were the author of the injury which resulted in the death of the deceased, the circumstances of the case, the injuries, absence of premeditation, and the conduct of the appellants-accused indicate that the act was committed without intention to cause death, but with knowledge that such act was likely to cause death. 35. The aforesaid finding brings us to the next question for consideration whether the case of the appellant falls within Exception 4 to Section 300 of the IPC, which pertains to culpable homicide not amounting to murder, and whether, therefore, his conviction under Section 302 IPC ought to be altered to one under Section 304 Part-I or Part-II IPC, as contended by learned counsel for the appellants. 36. The distinction between intention and knowledge in the context of Sections 299 and 300 IPC is pivotal to determining the degree of culpability. Intention connotes a conscious objective to bring about a particular consequence, whereas knowledge signifies awareness that a particular result is likely to ensue from the act. In the present case, though the act of the appellant was undoubtedly culpable, the circumstances do not establish any deliberate intention to cause the death of his wife. However, it can safely be inferred that the appellant was aware that his act was likely to cause grievous harm, possibly leading to death. 37. Reverting to the factual matrix, the following circumstances 26 emerge as significant and undisputed: (i) There was no prior enmity, premeditation, or motive on the part of the appellants to cause the death of the deceased. (ii) The incident occurred in birthday party of son of Vickky Agarwal in the night, ensuing out of a sudden quarrel between them. (iii) The weapon of offence was not a pre-selected weapon but a stone lying on the spot, picked up in the heat of the moment. (iv) Dr.Smt.Lalita Rathiya (PW-16) in para 10 of her cross-examination admitted that Injury No.2 was a lacerated wound without a fracture. She also admitted that Injury No. 2 was minor. Injuries No. 1, 2, 4, 5, and 6 were minor. Injury No. 3 could have occurred if someone fell in the same position while running. All the injuries could have resulted from collisions or falls and there is no material to suggest any repeated assault or continuation of the attack. 38. In Anbazhagan v. The State Rep. by Inspector of Police, 2023 INSC 632, the Hon’ble Supreme Court elaborated the legal parameters distinguishing intention from knowledge and clarified that where the act is done with knowledge of likely consequences, but without the intention to cause death, the case would appropriately fall under Section 304 Part II IPC. 39. Similarly, in Velthepu Srinivas v. State of A.P., 2024 SCC OnLine SC 107, the Hon’ble Supreme Court once again emphasized that where the assault occurs in the heat of passion, without premeditation, and with a weapon available at the spot, 27 the offence is properly classified under Section 304 Part II IPC. The Court reasoned that though the accused might possess knowledge that the act was likely to cause death, absence of intention to cause such consequence distinguishes it from murder under Section 302 IPC. 40. Applying the settled principles to the present case, this Court finds that the incident satisfies the well-recognized fourfold test for invoking Exception 4 to Section 300 IPC— • the act was committed without premeditation; • it occurred upon a sudden quarrel; • the act was done in the heat of passion; and • the appellants did not take undue advantage nor act in a cruel or unusual manner. 41. As regards the recovery and medical corroboration, it is significant to note that stone used in the assault was recovered from the spot in which human blood was found as per FSL report. The medical evidence led by Dr.Smt.Lalita Rathiya (PW-16) also confirmed that injuries sustained by the deceased could be caused by the recovered stone and iron rod. This corroborative material satisfactorily establishes the actus reus, namely that the appellants inflicted the blow in question. However, such recoveries and medical consistency, by themselves, do not establish the mens rea required for conviction under Section 302 28 of the IPC. The surrounding circumstances, including the testimonies of Pawan Kumar Agrawal (PW-1), Ajay Kumar Agrawal (PW-2), Amit Agrawal (PW-3) and Shyam Lal Agrawal (PW-4), clearly indicated that the incident occurred at Vickky Agrawal’s son birthday party during a sudden quarrel between the appellants and the deceased without any premeditation. Dr.Smt.Lalita Rathiya (PW-16) in para 10 of her cross- examination admitted that Injury No.2 was a lacerated wound without a fracture. She also admitted that Injury No.2 was minor. Injuries No.1, 2, 4, 5 and 6 were minor. Injury No.3 could have occurred if someone fell in the same position while running. All injuries could have resulted collisions and falls. 42. Cumulatively considering the evidence on record, this Court finds that the entire incident was the outcome of a sudden and heated exchange between the appellants and the deceased in birthday party of son of Vickky Agarwal in the night. No prior motive or prior preparation was proved, nor is there any material to suggest that the appellants intended to cause the death of Kalu @ Pramod Agrawal. The weapon used was merely a stone lying on the spot, picked up in the spur of the moment. These facts clearly indicate that while the appellants had knowledge that their act was likely to cause death, they lacked the intention to cause death or to inflict an injury of such a nature as was likely to cause death. The case, therefore, squarely fell within the ambit of Exception 4 to Section 300 IPC, being a homicide committed 29 without premeditation, in a sudden fight, in the heat of passion, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Consequently, the act of the appellants amounted to culpable homicide not amounting to murder, punishable under Section 304 Part II IPC. 43. Accordingly, this Court is of the considered view that learned trial Court committed an error in convicting the appellants under Section 302/149 of the IPC. Having regard to the totality of the circumstances, namely the absence of motive, the sudden quarrel between the appellants and the deceased, the use of a weapon and the lack of any evidence suggesting cruelty or undue advantage, the conviction is liable to be modified. The appellants act clearly falling under Section 304 Part II read with Section 149 of the IPC, the conviction under Section 302 read with Section 149 of the IPC is set aside and substituted by a conviction under Section 304 Part II read with Section 149 of the IPC. The appeals are, therefore, entitled to be allowed to the extent of alteration of conviction and sentence. 44. Accordingly, conviction of the appellants under Section 302 read with Section 149 of the IPC is set aside. However, they are convicted under Section 304 Part II read with Section 149 of the IPC and sentenced to undergo rigorous imprisonment for five years and fine of ₹ 1000/-, in default of payment of fine to further undergo RI for one month. The sentence shall stand modified to 30 that extent, and the appellants shall serve out the remainder of their sentence as per law. Their conviction and sentence under Section 147 read with Section 149 of the IPC are hereby affirmed. 45. The criminal appeals are partly allowed to the extent indicated hereinabove. The appellants are on bail, they shall surrender forthwith before the concerned trial Court for serving remaining sentence as modified by this Court, failing which they shall be taken into custody by the trial Court. 46. Considering the evidence available on record and the finding recorded by the trial Court in para 27 that Ajay Kumar Agrawal (PW-2) testified that he did not see accused Mukesh, Sunil and Sanjay at Jalwa party. Shyam Lal Agrawal (PW-4) also admitted that he did not see accused Mukesh, Sunil and Sanjay having any dispute with the deceased. Therefore, granting the benefit of doubt, the alleged crimes against accused Mukesh Agrawal, Sunil @ Ballu and Sanjay Agrawal are not proven and the prosecution has not proved beyond reasonable doubt the charges under Section 147 read with Section 149 and Section 302 read with Section 149 of the IPC against accused Mukesh Agrawal, Sanjay Agrawal and Sunil @ Ballu. Therefore, accused Mukesh Agrawal, Sanjay Agrawal and Sunil @ Ballu are acquitted of the charges under Section 147 read with Section 149 and Section 302 read with Section 149 of the IPC, giving them the benefit of doubt, we 31 do not find any ground to grant of leave to appeal. Accordingly, leave to appeal filed on behalf of the complainant and the State are rejected. 47. Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Bablu