Through: Sh.Sanjay Lao, APP.HON'BLE MR.The prosecution alleges that on 13-04-2003, in the evening, at 09:00 PM, when Harsh Dua, and his brothers, Praveen and Sonu Dua, had gone to attend the engagement ceremony of their friend at Sanjay Park, Govind Pura, and were talking amongst themselves, the Appellant reached there, and Crl.A. 134/2009 Page 1 picked up a quarrel with Praveen.He reportedly told Harsh Dua, that Praveen had slapped him, and that he would not leave him.Harsh and the others tried to calm down the appellant; he went away.Harsh and his brothers went inside the park.A few minutes later, Inderjeet Chawla @ Deepak, a friend of Parveen also reached there.When all these friends were conversing, the Appellant came there.He complained to Inderjeet that Parveen had slapped him, without a cause, and that it did not bode well for him.Again, Praveen's brothers tried to diffuse the situation, and calm down the appellant; they also apologized on behalf of Parveen.At this stage, Parveen slapped the Appellant.Inderjeet tried to intervene; Jagtar then pulled out a knife, and inflicted injuries on him.He cried out for help.Parveen tried to save him; the appellant then turned on him, and gave several serious knife blows on his vital parts.Parveen fell down.The appellant fled the spot.JUSTICE S.P.GARG MR.The Appellant impugns a judgment and order of the learned Additional Sessions Judge, dated 14-08-2003, in SC 60/2007, whereby he was convicted for the offence punishable under Section 302, IPC, and sentenced to undergo life imprisonment.Parveen's brothers rushed him to the hospital.Inderjeet gave his statement; an FIR, No. 136/03 PS Preet Vihar was registered, alleging offences under Sections 307/324 IPC.Later, in the early hours of the next morning, Parveen died.The appellant was arrested for committing the crime; Section 302 IPC was also added to the charge sheet.He pleaded innocence, and claimed trial.The prosecution examined twenty witnesses in support of its case.The appellant examined his mother, in his defence.In addition, the court examined two witnesses, since a plea was taken that the Appellant was suffering from mental disorder, and was undergoing treatment in jail.After 2005, he underwent treatment Crl.A. 134/2009 Page 2 for bi-polar depression.After considering all the materials on record, the Trial Court, by the impugned judgment, convicted the Appellant for the offence mentioned in the preceding portion of the judgment, and sentenced him to undergo imprisonment in the manner described earlier.Mr. M.L. Yadav, learned counsel for the Appellant urged at the outset, that the Trial Court findings as far as they pertained to the facts go, cannot be assailed, because PW-1 Inderjeet Chawla, the injured witness, and PW-5 as well as PW-7, brothers of the deceased, supported the prosecution about the attack which took place.Counsel urged that though there were some variations in the testimonies of these witnesses, they did not undermine the basic story about how Parveen had been attacked.It was however urged that the Trial Court fell into error in not noticing that the Court witnesses' depositions had clearly shown that the Appellant was not in his senses.Court witness No.2 was the doctor who had treated the Appellant even before the incident; he deposed about his mental illness.Even after his conviction, when he was undergoing sentence, the Appellant was a psychiatric patient, who underwent regular treatment.The Court should have given these serious consideration; instead the impugned judgment does not reflect any application of mind.It was argued next that even if the prosecution is said to have proved all the facts alleged in this case, at best the Appellant could have been justifiably convicted under Section 304-II IPC, and certainly not under Section 302 IPC.Here, counsel argued that the episode took place due to a sudden quarrel; the deceased had concededly slapped the Appellant, who Crl.A. 134/2009 Page 3 retaliated later by stabbing him.There was no premeditation, and deliberation or planning.Counsel relied on the decision reported as Kandaswamy v State of Tamil Nadu 2008 (11) SCC 97, where the facts were recounted as follows:"XXXXXX XXXXXX XXXXXX PWs 1 and 2 were examined as eye witnesses to the occurrence.Gurvammal is the elder sister of PW 1 and deceased Alagarsamy is her husband.The accused was known to him.Guruvammla died leaving behind two children - a girl and a boy.This made his father (PW 2) to bring Alagarsamy to his house.At about 8.30 p.m. on the occurrence day, he was standing opposite to the house of Ramaiah with his son, after returning from the house of Visalam.PW 2 was also coming in the street from the shop and he asked as to whether he had gone to Visalam's house and come back.Alagarsamy alighted from the bus and PW 2 also asked him as to whether he had gone to Visalam's house.Palpandi (son of accused) also alighted from the bus and the accused asked him as to why he has not brought his mother with him for which he had been sent.Palpandi replied to his father (the accused) that unless the accused goes mother will not come.Finding fault that he is repeating the same answer, the accused beat his son.Alagarsamy asked him as to why he was beating the young boy for which the accused responded stating that he had no business to intervene in his family problem and saying so, removed the Aruval from his person and cut Alagarsamy which injury landed on his left hand.Threatening them with dire consequences, the accused made good his escape.Alagarsamy was lying dead.This betrayed pre- meditation.The sequence of events was that after that, the Appellant left the spot, went somewhere and Crl.Chandra Shekhar, who delivered the judgment, about this evidence.In the present case, there are three head injuries, two on the scalp and one on the left parietal region.The first two injuries are, undoubtedly, fatal injuries.As a result of those injuries, multiple fractures of the right parietal bone occurred, the membranes got severed and there was injury to the brain matter.As regards the third injury, which is an incised wound of 2? 1? on the left parietal region, it cannot be said for certain that in the ordinary course it would have caused death.The medical evidence is silent on this aspect.The doctor did not even say what impact this third injury had internally.All the three appellants inflicted injuries on the head of the deceased with the weapons in their hands according to the prosecution witnesses.There is an allegation that after the deceased fell down all the three went on giving blows on the leg and waist.Certain injuries were found on the knee joint, elbow joint and left forearm of the deceased....XXXXXX XXXXXX XXXXXX ...intention that can be safely imputed to Appellants 1 to 3 o 3 was to cause bodily injuries to Pyara Singh which were likely to cause death.It is this common intention which, in our view, had developed on the spot.Therefore, the offence committed by Appellants 1 to 3 would be culpable homicide not amounting to murder and they are liable to be convicted and punished under Section 304 (Part I).They are also liable to be convicted under Crl.A. 134/2009 Page 11 Section 148 IPC for the offence of rioting.On the basis of the evidence on record and the findings recorded by the High Court, there is no escape from the conclusion that the appellants were members of an unlawful assembly of five or more persons having the common object falling within the scope of clause (iii) of Section 141, though the common object was not to kill or hurt the deceased person.

Sections cited: Section 302 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 148 in The Indian Penal Code, Section 299 in The Indian Penal Code, Section 325 in The Indian Penal Code, Section 149 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 324 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 326 in The Indian Penal Code, Section 307 in The Indian Penal Code