IMPORTANT POINT
When benefit is granted in another appeal to one of the other co-accused, same benefit shall be extended to earlier co-accused also albeit dismissal of their appeals on an antecedent date.

ORDER

Thomas, J.-In this appeal, we passed an order even when special leave was granted that the consideration would be limited to the nature of offence. Appellant was the first accused. He was arraigned along with one Jabbar as second accused and another person as the third accused in a murder case. The trial court convicted all the three accused of the offence under section 302 read with section 34 for the murder of one Moulana Mohammed Yusuf Sheikh. The High Court acquitted the third accused but confirmed the conviction and sentence passed on the first and the second accused. We are told that the second accused preferred a special leave petition No. (2828 of 1999) before this Court and the same was dismissed. Subsequently, he filed a review petition which was also dismissed.

2. This appeal by the first accused has to be considered only on the limited question as to the nature of offence. For that purpose, we are proposing to extract the dying declaration relied on by the trial court and the High Court. The relevant portion of the dying declaration is extracted below:

"Today i.e. on 12.6.1992, I was standing in the verandah leaning against the wall of the gallery. At about 1 O clock, one person by name Akhil who stays on the second floor of my building along with nephew Jabbar, came up climbing the staircase. I asked him as to why four days prior he had got me arrested in a false case. Upon that he replied that he had merely got me arrested but now he would finish me. By saying this, Akhil attacked on my chest and abdomen with the sharp weapon in his hand. At that time Jabbar also attacked on my left hand with a sharp weapon. When I tried to resist, Chand caught hold of my hands. On account of this incident I started shouting. At that time my wife came out of the room and when she intervened, Akhil attacked on her head with a sharp weapon."

3. One thing is apparently clear from the above dying declaration. The fatal blow was inflicted by the appellant followed by the one given by the second accused when the deceased confronted him with a query "why four days ago you got me arrested in a false case". From the said query, it is easy to discern that the assailants would have found the deceased in a pugnacious mood. It is quite reasonable to presume that the assailants would have apprehended that .the deceased put the said query in retaliation for the false arrest manipulated by the accused. The said apprehension seems to be justified when we looked at the medical evidence which shows that the deceased was smelling alcohol when he was taken before the doctor after sustaining the injuries. If so, the assailants also would have smelt alcohol when the deceased hurled the query quoted above.

4. Ms. Neeru Vaid, learned counsel for the appellant then contended that the appellant had injuries on his person and that would show that he had not exceeded the right of private defence. We are not disposed to countenance the said contention on the basis of seemingly minor injuries noted on the person of the appellant.

5. Nonetheless, we are inclined to bring down the offence from section 302 to section 304, part I of the IPC. We do so. We are told that appellant has been in jail for nearly ten years by now. Hence, we sentence him to rigorous imprisonment for ten years for the offence under section 304, Part I of the IPC.

6. The above is not enough to dispose of this matter. As the second accused Jabbar was placed on the same situation as the appellant in this case (if not lesser), Article 21 of the Constitution would not permit us to deny the same benefit to the second accused, notwithstanding the fact that the SLP and the review application filed by him have been dismissed by this Court. We are supported on this aspect by a course adopted by a three judge bench headed by chief justice Chandrachud in Harbans Singh v. State of U.P. [1982 (2) SCC 101]. In that case also, the co-accused were sentenced and the sentence had been con firmed by thi