Judgment

PALEKAR, J.:- The appellant Ram Lal has been convicted by the Delhi High Court for the murder of one Har Lal under Section 302-IPC and sentenced to imprisonment for life. Special leave is limited to the question of the applicability of Section 302-IPC.

2. Appellant Ram Lal along with three others, namely, Lekh Ram, Tek Chand and Mohar Singh were committed to the Court of Session on two separate charges. One charge was under Section 302r/w S. 34 IPC for the alleged murder of deceased Har Lal, and the other charge was under S. 325 r/w S. 34 IPC for voluntarily causing grievous hurt to one Budh Ram, One more charge was added in the court of Session so far as Ram Lal is concerned. The Additional Sessions Judge noticed that the lathi blow which proved to be fatal was given by Ram Lal and hence a substantive charge under S. 302-IPC was framed against the appellant.

3. After trial, Mohar Singh was acquitted. The appellant Ram Lal, Lekh Ram and Tek Chand were convicted under Section 302 r/w 34 IPC and sentenced to undergo life imprisonment for the murder of Har Lal. The appellant and Tek Chand were also convicted under Section 325 r/w Section 34 for the grievous injuries caused to Budh Ram and sentenced to 2 1/2 years rigorous imprisonment. The sentences were made to run concurrently. In appeal to the High Court the appellant Ram Lal alone was convicted for the offence under Section 302-IPC for the murder of Har Lal whereas Tek Chand and Lekh Ram were convicted in respect of that assault under Section 325 r/w 34. The sentence passed on Tek Chand and Lekh Ram was reduced to 2 1/2 years rigorous imprisonment.

4. The appellant Ram Lal has alone come to this court and we are concerned only with the question whether the prosecution has been able to prove on the facts as disclosed and accepted by the High Court an offence under Section 302-IPC against him. The High Court came to the conclusion, so far as the attack on deceased Har Lal is concerned, that he was assaulted with lathis or sticks by the appellant, Tek Chand and Lekh Ram. It also came to the conclusion that, their common intention was not to cause death but only grievous hurt. On that finding the conviction of all the three could have been only under S. 325 r/w 34. The reason, however, why Ram Lal, the appellant, was convicted under S. 302-IPC was that the High Court held that though all three had the common intention of causing grievous hurt, it was appellant Ram Lal who gave the blow on the head of the deceased with his lathi which proved fatal and hence the appellant was liable to be convicted under S. 302 IPC. According to the High Court though Tek Chand and Lekh Ram had attacked the deceased they had not given any blow to the deceased on his head.

5. The whole case seems to have proceeded on the assumption that only one blow was given on the head and that was given by appellant Ram Lal. The Additional Sessions Judge while framing the additional charge against the appellant for the substantive offence under S. 302-IPC mentioned that the evidence as recorded before the Committing Court disclosed that the appellant had given a fatal lathi stick blow on the head of Har Lal. The charge against him also as framed by him stated that the appellant had intentionally caused the death "by causing lathi blow on the head of the deceased. The High Court also assumed that only one lathi blow was given on the head of the deceased and that blow proved fatal. Now all these assumptions are obviously not correct.

6. Dr. Ved Vrat who had examined the injuries on the person of the deceased has described the injuries as follows:

1. Contused lacerated wound 1/2 x 1/2 bone deep, left side frontal region; bleeding present.

2. Contused lacerated wound 2 x 1/2 bone deep over vertex in mid line. Bleeding present.

3. Deformity nose.

4. Deformity left side forehead and left parietal region depressed fracture skull.

7. The post-mortem examination was performed by Dr. Bishnu Kumar who noted 5 injur