The High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under S. 302, Indian Penal Code or under S. 326, Indian Penal Code for the overt act of shooting.

Judgement

RAMASWAMI, J. - This appeal is brought, by special leave, from the judgment of the High Court of Patna, dated September, 1963, in Criminal Appeal No. 368 of 1961.

2. The appellant along with 13 others, was tried by the Additional Sessions Judge of Patna who by his judgment, dated April 22, 1961, convicted all the accused under Ss. 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Lakhan and Indo were convicted under S. 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was convicted under S. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Indo was also convicted under S. 326, Indian Penal Code and Gopi was convicted under S. 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years. Appellant Lakhan was convicted under Ss. 326/149, Indian Penal Code but no separate sentence was awarded on this charge. Lakhan and Indo were convicted under S. 19 (f) of the Arms Act and sentenced to undergo rigorous imprisonment for two years each. Five of the accused persons were acquitted and 8 of them were convicted on charges under Ss. 302/149, 326/149, 148 and 147. Indian Penal Code.

3. The appellants along with 8 others who were so convicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications: The conviction of the appellants under Ss. 302/149, Indian Penal Code, S. 148, S. 147 and Ss. 326/149, Indian Penal Code was set aside and the appellants were acquitted of those charges. The conviction of Lakhan under S. 302/149, Indian Penal Code was altered into a minor offence under S. 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained. The conviction and sentence of Indo under S. 326, Indian Penal Code and of Gopi under Ss. 326/109, Indian Penal Code were upheld. The conviction and sentence of Lakhan and Indo under S. 19 (f) of the Arms Act were also upheld.

4. The case of the prosecution is that on October 7, 1959 at about 10 a. m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha. On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges. Sheosahay protested and there was an altercation between the parties. Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village. Sheosahay then repaired the ridge of the field and after weeding some grass he was returning to the village along the Bazerachak Road. While he was passing by the side of a brick-kiln, appellant Lakhan suddenly emerged from behind it with a pistol in his hand and fired at Sheosahay hitting him on his chest. Sheosahay staggered for a few steps and fell down at the house of one Baiju. There were 15 or 20 other persons variously armed in the company of Lakhan. Mst. Akhji P. W. 3 wife of Jitu P. W. 7 heard the report of a gunfire while she was in her house situated near the house of Baiju. She came out of her house and saw Sheosahay lying fallen in the village lane. She protested to Gopi who became furious and ordered that she should be assaulted. Upon his order, Rajendra who was carrying a gun fired at Akhji, P. W. 3 on her left arm. After committing the assault all the members of the mob fled away. On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant Sub-Inspector of Police, P. W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning.

5. The appellants pleaded not guilty to the charges and alleged that they were falsely implicated on account of previous enmity. The trial Court held that it was unsafe to convict appellant Lakhan on the specific charge under S. 302, Indian Penal Code for causing the death of Sheosahay as it appea