SUPREME COURT OF INDIA

Before:- Y.K. Sabharwal and H.K. Sema, JJ.

Criminal Appeal No. 678 of 2000. D/d. 20.08.2002.

Suryamani Singh - Petitioner

Versus

State of U.P. - Respondents

Indian Penal Code, 1860, Section 304 Part II, 34 and 302 - Intention to kill - Death on account of incised wounds inflicted by other accused - Appellant carrying 'lathi', inflicted one lathi blow only on the deceased - Total 7 accused - Acquittal of 4 accused by High Court - It is difficult to hold that the appellant had any intention to kill the deceased - Conviction converted from Section 302, 34 to 304 Part II and 34.

[Paras 6 and 7]

ORDER

H.K. Sema, J. - The appellant and six other accused were tried and convicted for offence under Section 302 read with Section 149 Indian Penal Code and imprisonment for life was imposed on them. They were also convicted for offence under Section 307 read with Section 149 Indian Penal Code and rigorous imprisonment of 5 years was imposed. Bahadur Singh one of the accused was also convicted and sentenced to life imprisonment under Section 302 Indian Penal Code simpliciter and Algu Singh for offence under Section 307 Indian Penal Code simpliciter and sentenced to undergo rigorous imprisonment of 5 years in respect of the said offence. The appellant Suryamani @ Jhilmit Singh was also convicted and sentenced to undergo two years' rigorous imprisonment for offence under Section 147 Indian Penal Code, while remaining accused were convicted under Section 148 Indian Penal Code and each of them was sentenced to two years' rigorous imprisonment for the said offence.

2. The incident took place on 29th of May, 1978 in the morning at about 7-30 a.m. when Gulab Singh was murdered and P.W.2 Ghasitu @ Ram Parvesh Singh sustained injuries. One of the three eye-witnesses to the incident was P. W. 1 on whose information the F.I.R was lodged. He was brother of deceased Gulab Singh. The incident was reported to the police at 8-45 a.m. P.W.2 Ghasitu was the injured witness who remained in hospital as indoor patient on account of injuries suffered by him for more than a fortnight. P.W.3 is the other eye-witness who was present near the place of occurrence. The occurrence had taken place on account of some altercation which took place the previous day between Gulab Singh and Rajpati Singh.

3. Aggrieved by the judgment and order of the trial court, all the 7 accused filed criminal appeal before the High Court. The High Court by impugned judgment has acquitted the four accused. The three accused whose conviction in substance was maintained are the appellant Bahadur Singh and Algu Singh. They were found guilty of offence under Section 302 read with Section 34 Indian Penal Code and under Section 307 read with Section 34 Indian Penal Code. Each of them was awarded life imprisonment for offence under Section 302 read with Section 34 Indian Penal Code and 5 years rigorous imprisonment for offence under Section 307 read with Section 34 Indian Penal Code. Thus, the High Court instead of convicting them for offence under Section 302 read with Section 149 Indian Penal Code convicted them for offence under Section 302 read with Section 34 Indian Penal Code This was, as a result of acquittal of the 4 accused and the effect that there was no unlawful assembly as the number of accused were less than five in number. Bahadur Singh and Algu Singh have not challenged the impugned judgment and order of the High Court.

4. The only contention urged in support of the appeal by the learned counsel for the appellant is as to the nature of offence. Counsel submits that the appellant had no intention of causing murder of deceased Gulab Singh and the conviction deserves to be converted from offence under Section 302 read with Section 34 Indian Penal Code to the one under Section 304 Part II read with Section 34 Indian Penal Code.

5. From the evidence on record ,it appears and is not in dispute that the appellant was carrying with him a lathi and according to the case of the prosecution he gave only one lathi blow to the deceased. The deceased, it appears from the nature of injuries died on account of incised wounds inflicted on him by Bahadur Singh and Algu Singh. The first such injury was inflicted by Bahadur Singh. On these facts and circumstances, it is difficult to hold that the appellant had intention of causing murder of Gulab Singh and thus we find substance in the contention of learned counsel for the appellant.

6. In view of the aforesaid state of affairs we convert the conviction of the appellant from offence under Section 302 with Section 34 Indian Penal Code to a conviction under Section 304 Part If read with Section 34 Indian Penal Code and sentence him to rigorous imprisonment for a period of 7 years for the said offence. The appeal is disposed of accordingly.

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