High Court
Facts
Cri. Appeal No.360 of 2017 and others.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.360 OF 20171.Balshiram Bhagaji Wafare,Age : 43 years,2.Bhagaji Shivram Wafare,-(abated)Age : 84 years,(Appeal abated against appellant no.2vide order dated 19.12.2023)3.Dnyandeo Sonyabapu Wafare,-(deleted)Age : 37 years, 4.Santosh Kisan Wafare-(deleted)Age : 33 years, (Names of appellant nos.3 andto 4 deleted as per court’s order dated 16.03.2023)5.Nandabai Balshiram Wafare,Age : 40 years,Both r/o. Wafarewadi, Post Karjule Harya, Tq. Parner, Dist. Ahmednagar..AppellantsVs.The State of Maharashtra,Through Police Station Officer,Parner Police Station,Tq.Parner, Dist. Ahmednagar..RespondentsWITHCRIMINAL APPEAL NO.16 OF 2024Dnyandev s/o. Sonyabapu Wafare,Age : 42 years, Occ. Nil,r/o. Wafarewadi, Post Karjule Hariya,Tq. Parner, Dist. Ahmednagar..AppellantVs.The State of Maharashtra..Respondent
Legal Reasoning
20Cri. Appeal No.360 of 2017 and othersintention, otherwise made out to be far less thanhomicidal, cannot, by hindsight reading, be meant to havehad a murderous or kindred mens rea. We have, therefore,to consider in an individualised manner the circumstancesof the involvement of the appellant, his nonage andexpectation of consequences……………..25.The facts of the present case indicate that appellant –Nandabai did not assault her deceased brother. Although, otherappellants (four in number), allegedly, assaulted the deceased withstick blows, two injuries were noticed on his person. One is headinjury caused by appellant – Balshiram. The prosecution could notmake out the case as to who was author of the other injury (fractureof elbow). In our view, therefore, we would be justified in exercise ofjudicial discretion to discriminate in punishment/quantum ofsentence. 26.In the result, the appeals partly succeed. Hence, thefollowing order:-(i)The appeals are partly allowed.(ii)The judgment and order dated 01.08.2017 passed bylearned Addl. Sessions Judge, Ahmednagar, in Sessions Case No.26of 2007, to the extent of convicting and sentencing the appellants forthe offence punishable under Section 302 read with Section 149 ofIndian Penal Code, is set aside. 21Cri. Appeal No.360 of 2017 and othersInstead, the appellants are convicted for the offencepunishable under Section 304 Part II read with Section 149 of IndianPenal Code.(iii)The appellant - Balshiram Bhagaji Wafare is sentenced tosuffer rigorous imprisonment for nine years and to pay a fine ofRs.5,000/-, in default, to suffer rigorous imprisonment for threemonths, for the offence punishable under Section 304 Part II readwith Section 149 of Indian Penal Code.(iv)The appellants - Dnyandev s/o. Sonyabapu Wafare andSantosh s/o. Kisan Wafare are sentenced to suffer rigorousimprisonment for six years and to pay a fine of Rs.5,000/- each, indefault, to suffer rigorous imprisonment for three months, for theoffence punishable under Section 304 Part II read with Section 149 ofIndian Penal Code.(v)The appellant – Nandabai is directed to suffer rigorousimprisonment for the period, which she has already undergone, andto pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonmentfor three months, for the offence punishable under Section 304 Part IIread with Section 149 of Indian Penal Code.(vi)The appellant – Nandabai need not surrender back to jail. 22Cri. Appeal No.360 of 2017 and others(vii)The appellants - Dnyandev s/o. Sonyabapu Wafare andSantosh s/o. Kisan Wafare be released forthwith, if not required inany other case. (viii)Rest of the judgment and order dated 01.08.2017 passedby learned Addl. Sessions Judge, Ahmednagar, in Sessions CaseNo.26 of 2007, to stand unaltered.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP
Arguments
2Cri. Appeal No.360 of 2017 and othersWITHCRIMINAL APPEAL NO.256 OF 2023Santosh s/o. Kisan Wafare,Age : 38 years, Occ. Agri.,r/o. Wafarewadi, Post KarjuleHarya,Tq. Parner, Dist. Ahmednagar..AppellantVs.The State of Maharashtra,Through Police Station Officer,Parner Police Station,Tq. Parner, Dist. Ahmednagar..Respondent----Mr.Nilesh S. Ghanekar, Advocate for appellants in Cri. Appeal No.360of 2017 Mr.N.B.Narwade, Advocate for appellant in Cri. Appeal No.16 of 2024Mr.S.R.Sapkal, Advocate for appellant in Cri. Appeal No.256 of 2023Mr.S.D.Ghayal, APP for respondent – State in all appeals---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON :JANUARY 08, 2024 PRONOUNCED ON :JANUARY 18, 2024 JUDGMENT (PER R.G.AVACHAT, J.):- These are appeals from conviction. The appellants havebeen convicted for various offences and consequently, sentenced tosuffer terms of imprisonments, vide judgment and order dated01.08.2017, passed by learned Addl. Sessions Judge, Ahmednagar, inSessions Case No.26 of 2007. 3Cri. Appeal No.360 of 2017 and othersAppellant no.2 - Bhagaji (original accused no.2) inCriminal Appeal No.360 of 2017 expired during pendency of theappeal. Hence, the appeal stood abated as against him. The detailsof sentence imposed against appellants – Balshiram, Dnyandeo,Santosh and Nandabai are given in the tabular form below:- Sections Punishment302 r.w. 149 of I.P.C.R.I. for life and to pay fine of Rs.5,000/-, indefault, to suffer R.I. for three months, 143 r.w. 149 I.P.C.R.I. for 03 months and to pay fine of Rs.500/-each, in default, to suffer S.I. for one month147 r.w. 149 I.P.C.R.I. for 03 months and to pay fine of Rs.500/-each, in default, to suffer S.I. for one month148 r.w. 149 I.P.C.R.I. for 03 months and to pay fine of Rs.500/-each, in default, to suffer S.I. for one month323 r.w. 149 I.P.C.S.I. for 03 months and to pay fine of Rs.500/- each, in default, to suffer S.I. for one month504 r.w. 149 I.P.C.R.I. for six months and to pay fine of Rs.1,000/- each, in default, to suffer S.I. for two monthThe substantive sentences are to run concurrently.2.The facts giving rise to these appeals are as follows:-PW 2 – Jijabai is widow of Babaji, who hailed from villageWafarewadi, Tq.Parner, Dist. Ahmednagar. The deceased hadagricultural land at the village. He was serving as Clearing Agent inMumbai. He along with his wife and three children would, therefore,reside in Mumbai. Three years before the incident dated 31.10.2006, 4Cri. Appeal No.360 of 2017 and othershis family members shifted to the village. The First InformationReport (F.I.R., Exh.93) was lodged by PW 2 – Jijabai. It is her casethat she has two brothers-in-law and four sisters-in-law as well. Herparents-in-law are alive. Her husband, deceased Babaji, wouldprovide money for maintenance of all his brothers, sisters andparents. He had purchased agricultural land in the name of hisbrothers and their wives as well. Since, with the passage of time, hisexpenditure increased, he stopped providing financial assistance tothem. His brothers, therefore, started troubling the informant andher children.03.On 14/15.10.2006, Bajirao, brother of the deceased –Babaji, had assaulted Satish (son of Babaji). About eight days afterthe said incident, Babaji had come to the village for Diwali festival. Itwas 02.00 p.m. of 31.10.2006, Babaji (deceased), his wife PW 2 –Jijabai and their children namely, Mangal (Vishakha) and Satish werein their house on the field. The appellants came together. They toldthe informant that they propose to hold a meeting of familymembers on account of the incident of beating by Bajirao (sinceacquitted) to Satish. PW 2 - Jijabai inquired with them, what purposewould be served by holding such meeting since it was her son, whohad been beaten up. Thereupon, the appellants stared abusing her. 5Cri. Appeal No.360 of 2017 and othersThe appellant - Balshiram gave her threats. Babaji (deceased)inquired with him, whether all of them were going to beat them. Theappellants, except Nandabai, therefore, went back to their Vasti andreturned armed with sticks. The appellants - Balshiram andDnyandev gave sticks blows on the head of Babaji. Babaji fell down.He was dragged along for some distance. While he was beingdragged, the appellants – Santosh and co-accused Bhagaji beat himup with sticks. Jijabai intervened to save her husband. Theappellant – Nandabai beat her up. All the appellants beat up Satishand PW 1 – Mangal as well.04.Babaji was first rushed to Primary Health Centre (P.H.C.)at Takli-Dhokeshwar. Then, he was shifted to Dr.Veer’s Hospital atAhmednagar. The police had come to the hospital on theintervening night of 31.10.2006 and 01.11.2006. Jijabai lodged theFIR of the incident (Exh.93).05.The Crime, vide C.R. No.259 of 2006, came to beregistered for the offences punishable under Sections 307, 143, 147,148, 323 and 504 read with Section 149 of Indian Penal Code.Babaji succumbed to the head injury on 02.11.2006. Section 302 ofI.P.C., therefore, came to be invoked. Investigation of crime hadalready commenced. Scene of offence panchnama (Exh.98) was 6Cri. Appeal No.360 of 2017 and othersdrawn. Statements of the persons acquainted with the case wererecorded. The appellants were arrested. The parents of thedeceased and his brothers had also been arrested. Pursuant to thedisclosure statement given by appellant - Balshiram, sticks (Articles14 to 17) came to be seized. Medico-legal certificates of the injuredwere collected. On completion of the investigation, the appellantsand others were proceeded against by filing charge sheet.06.Learned Addl. Sessions Judge, Ahmednagar (trial court)framed Charge (Exh.29). The appellants and others pleaded notguilty. Their defence was of false implication. According to them,the deceased suffered injuries due to fall at his residence first andagain, while being taken to the hospital on motor-bike.07.The prosecution examined eleven witnesses andproduced in evidence number of documents. The trial court, onappreciation of evidence, acquitted the original accused nos.6 to 10.The appellants came to be convicted and consequently, sentenced tovarious terms of imprisonment, as stated in the tabular form above.08.Heard learned counsel for the parties.09.Learned counsel for the appellants would submit that noindependent witness has been examined. The trial court convicted 7Cri. Appeal No.360 of 2017 and othersthe appellants based on the testimony of interested witnessesnamely, daughter and widow of the deceased. Genesis of theprosecution case has been suppressed. Had the appellant reallyrained stick blows, there would have been number of injuries on theperson of the deceased. The deceased died of single head injury.According to them, even if we accept the case of the prosecution asit is, it could only be inferred that the appellants had intended or thecommon object of the so called unlawful assembly, was to cause hurtand nothing more. Our attention has been adverted to the injurycertificates. According to them, PW 1 and PW 2 suffered simple andsuperficial injuries. They got themselves medically examined threedays after the incident. The appellant – Nandabai was sister ofdeceased. No overt-act has been attributed her against. Accordingto learned counsel, the appellants have been in jail since the date ofpronouncement of conviction. They were also behind the bars duringenquiry and investigation of the crime. Learned counsel, ultimately,urged for allowing the appeals.10.Learned APP would, on the other hand, submit that it isan offence committed in furtherance of the common object ofunlawful assembly formed by the appellants. Each one of themwould be criminally liable for the offence of murder of Babaji, in view 8Cri. Appeal No.360 of 2017 and othersof Section 149 of Indian Penal Code. According to learned APP, thedeceased and his family members suffered injuries. The deceasedwas dragged for some distance. The scene of offence panchnama(Exh.98) indicates marks of struggle and dragging as well. TheM.L.C. of the deceased and his family members have also beenadverted to. According to learned APP, unlawful assembly can beformed on the spot as well. One who is not member thereof at thebeginning, may join the same and share its common object.According to learned APP, no interference with the impugnedjudgment and order is, therefore, warranted. He relied on thejudgment of the Apex Court in the case of Naresh @ Nehru Vs.State of Haryana, (2023)10 SCC 134.11.Considered the submissions advanced. Let us advert tothe evidence on record. The case is based on the eye-witnessaccount of PW 1 and PW 2, daughter and widow of the deceased.The evidence, which would be relevant in deciding the presentappeal, would only be referred to.12.PW 2 – Jijabai is widow of the deceased. The couple wasblessed with three children, Sandeep, Satish and Mangal @ Vishakha.All of them would reside in Mumbai. The deceased Babaji wasworking as Clearing Agent. About three years before the incident, the 9Cri. Appeal No.360 of 2017 and otherswidow and two children, i.e. Mangal and Satish migrated back to thevillage. The deceased had ancestral as well as self-acquired land atvillage Wafarewadi. His two brothers, parents and one of the sisters(Nandabai) were also residing at Wafarewadi. Houses of all of themwere in the nearby of each others. Although it is the case of theinformant that it was the deceased who would support his parents,brothers and sister financially, there is no much evidence in thatregard. Same has, however, no much relevance. On 14/15.10.2006,Bajirao (brother of deceased) had beaten up Satish (son ofdeceased). The deceased had come to the village eight daysthereafter, for Diwali festival. It was 02.00 p.m. of 31.10.2006, thedeceased and all his family members were home. The appellantscame their home. Appellant – Nandabai is real sister of deceasedBabaji. Appellant – Balshiram is her husband. Bhagaji is Balshiram’sfather. Appellants – Dnyandev and Santosh are nephews ofappellants – Nandabai and Balshiram. These appellants were nowayconcerned with the incident wherein, Bajirao had assaulted Satish.There is nothing in the evidence nor in the FIR to indicate theappellants to have ever been on inimical terms with the deceased orhis family members. Even, they had no motive. The appellants hadcome to the residence of the deceased to tell him that a meeting of 10Cri. Appeal No.360 of 2017 and othersthe family members would be convened on account of the incident ofbeating Satish. Admittedly, the appellants were not armed whenthey first came to the residence of the deceased. PW 2 – Jijabai(informant) told them, `what purpose would be served by holding ameeting since her son had been beaten up’. An oral wrangle,therefore, ensued between her and appellants – Balshiram andDnyandev. It is in her evidence that these appellants told her thatthey would see (beat up) her and her family members. Thedeceased, thereupon, questioned both of them, whether theywanted to beat him up. Thereupon, the appellants, exceptNandabai, went back to their Vasti and returned armed with sticks. Itis in the evidence of both PW 2 - Jijabai and PW 1 - Mangal @Vishakha, that both the appellants – Balshiram and Dnyandev gavestick blows one after another on the head of Babaji. 13.PW 1 – Vishakha (Mangal) testified the appellants, exceptNandabai, to have said them "तुमचे आज आम्ही कामच करतो” (we will kill themtoday). She was confronted with the statement to the police, whichis silent to record this matter (sentence). As such, the evidence ofVishakha @ Mangal that the appellants told them that they wouldfinish them, was an improvement over her statement to police. It 11Cri. Appeal No.360 of 2017 and othersappears to have been made with a view to attribute the appellantswith “intention to kill”. The evidence of both these witnessesindicate that Babaji was dragged to some distance. The appellants,except Nandabai, gave him stick blows. When both PW 1, PW 2and Satish intervened, they were also beaten up.14.There is evidence to indicate that Babaji was first rushedto P.H.C. of village Wafarewadi. Then, he was shifted to the hospitalof Dr.Veer at Ahmednagar. He died of head injury. Although, bothPW 1 and PW 2 were subjected to searching and lengthy cross-examination, nothing fruitful has come on record in support of thedefence. The question is, whether based on the evidence of thesetwo witnesses, coupled with the medical evidence, it could be said tobe an offence of murder committed by the appellants in furtheranceof common object of their unlawful assembly.15.The post mortem report (Exh.132) indicates thedeceased died due to head injury. PW 7 – Dr.Bapusaheb conductedpost mortem. He noticed following two injuries on the person of thedeceased:-1)Sutured CLW over left parietal region over the left ear with “C” shape, “C” facing towards the ear with drain in place with signs of burr hole operation.2)Fracture supra condylar left elbow. 12Cri. Appeal No.360 of 2017 and othersAlthough the deceased was allegedly dragged on rough surface inthe field, no other injury was noticed on his person. The scene ofoffence panchnama (Exh.98) indicate the soil at some distance fromthe scene of offence to have been not in order. Same could not betermed to be the marks suggesting the deceased to have beendragged, being relevant under Section 7 of Evidence Act.16.So far as injuries of PW 1 and PW 2 and Satish areconcerned, those are simple and superficial. After 3-4 days of theincident, they approached the civil hospital and obtained their injurycertificates.17.The injury certificates issued by P.H.C, Takli-Dhokeshwarindicates the following injuries to have been noticed on the person ofthe deceased:-1. C.L.W. over right temporoparietal region of scalp 4 x 2 x 1 cm.2.Contusion over left temporoparietalregion.3.Contusion over left elbow joint.4.Right periorbital edemaInjury No.2 is said to be contusion occurred as a result of injury no.1.As such, the medical evidence on record indicates the deceased tohave suffered a head injury and fracture over left elbow. Admittedly,there was no enmity between the appellants on one hand and the 13Cri. Appeal No.360 of 2017 and othersdeceased and his family members, on the other. The appellants hadbeen to the residence of the deceased with a view to convene ameeting of all the family members. It appears that Some quarrelensued between them and the deceased and his widow. Theappellants, except Nandabai, returned to their Vasti, which is locatednearby of the house of the deceased. Admittedly, all of them areagriculturists. Their Vasti (houses) were on the field itself. Beingagriculturists, the articles like axe, sickle and scythe, etc., arepresumed to be readily available with them at their residences.None of them came with such an article. Same suggests that noneof them had an intention to do away with Babaji. The appellants,except Nandabai, were armed with sticks. What kind of sticks thosewere, has not been proved. Although, pursuant to the disclosurestatement made by appellant - Balshiram, four articles (Articles 14 to17) came to be seized, the C.A. report thereof indicates none of thesticks bears blood stains. There is also nothing to suggest thedeceased to have been assaulted with the very sticks. 18.For ascertaining, whether it is an offence ofmurder/culpable homicide not amounting to murder, reference toSections 299, 300 and 304 of Indian Penal Code is a must. Wepropose to reproduce the same for better appreciation. 14Cri. Appeal No.360 of 2017 and others299. Culpable homicide - Whoever causes death bydoing an act with the intention of causing death, orwith the intention of causing such bodily injury as islikely to cause death, or with the knowledge that he islikely by such act to cause death, commits the offenceof culpable homicide.300.Murder - Except in the cases hereinafterexcepted, culpable homicide is murder, if the act bywhich the death is caused is done with the intention ofcausing death, or —2ndly. — If it is done with the intention of causingsuch bodily injury as the offender knows to be likelyto cause the death of the person to whom the harm iscaused, or—3rdly. — If it is done with the intention of causingbodily injury to any person and the bodily injuryintended to be inflicted is sufficient in the ordinarycourse of nature to cause death, or—4thly. — If the person committing the act knows thatit is so imminently dangerous that it must, in allprobability, cause death, or such bodily injury as islikely to cause death, and commits such act withoutany excuse for incurring the risk of causing death orsuch injury as aforesaid.304. Punishment for culpable homicide notamounting to murder — Whoever commits culpablehomicide not amounting to murder shall be punishedwith imprisonment for life, or imprisonment of eitherdescription for a term which may extend to ten years,and shall also be liable to fine, if the act by which thedeath is caused is done with the intention of causingdeath, or of causing such bodily injury as is likely tocause death, or with imprisonment of eitherdescription for a term which may extend to ten years,or with fine, or with both, if the act is done with theknowledge that it is likely to cause death , but withoutany intention to cause death, or to cause such bodilyinjury as is likely to cause death. 15Cri. Appeal No.360 of 2017 and othersMoreover, Sections 141 and 149 of Indian Penal Code also need to beadverted to.141. Unlawful assembly — An assembly of five ormore persons is designated an "unlawful assembly", ifthe common object of the persons composing thatassembly is— …………..…………..Third. - To commit any mischief or criminal tresspass, or other offence; or …………..…………..………….. 149. Every member of unlawful assembly guilty ofoffence committed in prosecution of commonobject — If an offence is committed by any memberof an unlawful assembly in prosecution of thecommon object of that assembly, or such as themembers of that assembly knew to be likely to becommitted in prosecution of that object, every personwho, at the time of the committing of that offence, is amember of the same assembly, is guilty of thatoffence. Explanation to Section 141 of Indian Penal Code indicates that anassembly which was not unlawful when it assembled, maysubsequently become an unlawful assembly.19.The evidence on record indicates that the appellants,who were five in number, had come to the house of the deceased 16Cri. Appeal No.360 of 2017 and othersonly with a view to tell that a meeting was proposed to be convened.It was not an unlawful assembly when they first came to the house ofthe deceased. After an oral wrangle, the appellants (four in number),except Nandabai, went back to their Vasti and returned armed withsticks. Same suggests that it was not an act of unlawful assembly.Their coming back to Vasti and returning with sticks, would lead toinfer that it was their common intention to assault the deceased,meaning thereby, to cause him hurt. There is, however, evidence toindicate the appellant – Nandabai to have joined them and evenparticipated in assaulting PW 2 – Jijabai. Thus, the unlawfulassembly of the appellants got formed. 20.The sticks, seized pursuant to the disclosure statementmade by appellant – Balshiram, could not be said to have been usedin committing the offence. As such, there is no evidence to suggestwhat kind/nature of sticks were used. There was, no premeditationand no prior enmity as well. True, a single blow of stick was provedto be fatal. It is reiterated that had the appellants really intendedto kill Babaji, they would have come with sharp weapon. Theircoming together armed with sticks indicates that they hadintended/or a common object of their assembly, which was formed 17Cri. Appeal No.360 of 2017 and othersinstantaneously was to cause grievous hurt. The injury to elbow wasgrievous in nature since it caused fracture. The appellants are,however, to be presumed to have knowledge that anyone of themmay inflict a forceful blow on the vital body part of Babaji. As such,the knowledge that anyone of them would make fatal assault, has tobe attributed to one and all of them. Had the appellants reallyintended to kill the deceased, all of them would have rained stickblows either on his head, face or any other vital part of his body. Twoinjuries were noticed on his person. One is head injury and otherbeing fracture to left elbow.21.In our considered view, the appellants could be said tohave formed an unlawful assembly with the common object ofcausing grievous hurts. At the same time, they are to be presumedto have knowledge that anyone of them may assault on the vital partof the body of deceased, which may prove fatal. The second limb ofSection 149 of Indian Penal Code speaks about knowledge of any ofthe members of unlawful assembly as to nature of offence likely tobe committed in prosecution of the common object. To be precise,Section 149 of Indian Penal Code is “………….or such as themembers of that assembly knew to be likely to be committed in 18Cri. Appeal No.360 of 2017 and othersprosecution of that object, every person who, at the time of thecommitting of that offence, is a member of the same assembly, isguilty of that offence”. As such, in our view, it would be an offencepunishable under Section 304 Part II of Indian Penal Code.22.Since nothing further has been argued by any of learnedcounsel for the appellants, we are inclined to allow the appeals bysimply converting the conviction for offence under Section 302 readwith Section 149 of Indian Penal Code into the offence under Section304 Part II read with Section 149 of Indian Penal Code. We are notinclined to interfere with the order of conviction for rest of theoffences.23.It is reiterated that the deceased died of head injury,which was caused by a single blow of stick given by appellant –Balshiram. Another injury in the nature of fracture of elbow of thedeceased was there. It is, however, not clear from the evidence, asa result of whose assault, the said injury has been caused. As such,appellant – Balshiram is being held guilty for offence under Section304 Part II of Indian Penal Code and other appellants are being heldguilty for the offence punishable under Section 304 Part II of Indian 19Cri. Appeal No.360 of 2017 and othersPenal Code, based on the principle of constructive criminal liability(Section 149 of IPC). 24.The Apex Court in the case of Dalip Singh and othersVs. The State of Punjab, AIR 1953 SC 364, has observed :-40.………………………….In cases where the factsare more fully known and it is possible to determine whoinflicted blows which were fatal and who took a lesserpart, it is a sound exercise of judicial discretion todiscriminate in the matter of punishment. It is an equallysound exercise of judicial discretion to refrain fromsentencing all to death when it is evident that some wouldnot have been if the facts had been more fully known andit had been possible to determine for example, who hit onthe head or who only on a thumb or an ankle; and whenthere are no means of determining who dealt the fatalblow, a judicial mind can legitimately decide to award thelesser penalty in all the cases. We make it plain that aJudge is not bound to do so, for he has much right toexercise his discretion one way as the other. It isimpossible to lay down a hard and fast rule for each casemuch depend on its own facts. But if a Judge does do sofor reasons such as those indicated above, then it isimpossible to hold that there has not been a properexercise of judicial discretion.”The Apex Court in the case of Hiralal Mallick vs. The State ofBihar, (1977)4 SCC 44, has observed :-6.When a crime is committed by the concertedaction of a plurality of persons constructive liabilityimplicates each participant, but the degree of criminalitymay vary depending not only on the injurious sequel butalso on the part played and the circumstances present,making a personalised approach with reference to each.Merely because of the fatal outcome, even those whose