MOHAN Vs. STATE

JUDGEMENT

(1.) , J.):

(2.) THIS judgment shall govern three appeals, namely Criminal Appeal Nos.489,775 of 2008 and 212 of 2009.

(3.) ADVANCING arguments on behalf of the first appellant, the learned counsel would submit that in the instant case, PW1 to 3 were shown as eye witnesses. Even as per the prosecution, the occurrence took place on 3.7.2007 at 12.30 hours. Since there was non-payment of salary, the deceased accompanied by Pws.1 to 3, went to the place where the accused were actually sleeping at the wee hours and quarrelled with them and in that process, the occurrence had taken place. Learned counsel would stress that while taking into consideration the time of occurrence and the manner in which the occurrence had taken place, in particular, when these accused were not armed with any weapon or stick or log at the time of occurrence, it would be clearly indicative of the fact that they have no common intention or pre-meditation to share with and hence the finding of the lower court that they have got a common intention, cannot be accepted. Added further, in the instant case, the prosecution case was that A1 attacked PW1 with wooden log and caused injury on him and PW1 was examined by PWs.13 and 16 doctors and Ex.P.4 is the wound certificate and Ex.P.7 is the Accident Register Copy. A perusal of Wound Certificate of PW1 would clearly indicate that there are three lacerated injuries found on his head. Even though the prosecution claimed that A2 and A3 attacked the deceased and A4 attacked PW2 at the instigation of A1, before P.W..21, the investigator, they have categorically admitted that at the time of occurrence they were not present in the place of occurrence and it is only at the instigation of A1 they were present, was only a development at the time of trial and in the absence of the said version,the prosecution ought to have found the first accused guilty. Even assuming, the case of the prosecution is found to be proved that A1 attacked PW1 on his head with the wooden log and caused three lacerated injuries, he has got to be dealt with in accordance with law.