Judgment

GROVER, J.:- This is an appeal by Special Leave from the Judgment of the Punjab & Haryana High Court.

2. Chahat Khan, Bhup Singh, Harun and Mohar all of whom belong to Kheri Nuh, were tried under Section 302 read with Section 34 of the Indian Penal Code by the Additional Sessions Judge Gurgaon for the murder of Ahmad Khan on the morning of 4th July 1968. The learned Additional Sessions Judge found that the prosecution case had been established and that these persons were guilty of the offences with which they had been charged. They were sentenced to imprisonment for life and a fine of Rs. 200/-, and in default of payment of fine they were directed to undergo further imprisonment for six months. The present appeals has been brought by Chahat Khan alone.

3. According to the case of the prosecution on the morning of 4th July 1968 Ahmad Khan was seen returning to his house after easing himself when Chahat Khan and his companions attacked him with lathis. Chahat Khan shouted that Ahmad Khan should be taught a lesson for hitting him with a lathi some years ago. Chahat Khan gave a blow on the head of the deceased with this lathi. Bhup Singh hit Ahmad Khan with a lathi on the left "Kanpatti . The other companions of Chahat Khan also inflicted injuries on Ahmad Khan. It appears that Ahmad Khan died soon after.

4. The post mortem examination was conducted by Dr. Jagdish Chander PW 1 who found six injuries on his person. The first two injuries may be mentioned :

1. Lacerated wound 1 1/4" x 1/4" bone deep on the left parietal region 3" above the left pinna, margins are stained with bright red clothed blood.

2. A dark red contusion mark 3" x 1/4" on the left side of neck 2" below the lobule of left ear. According to the diagram accompanying the post mortem report injury No. 1 was above the left ear and injury No. 2 was just below that ear. Both these injuries were caused by lathis. In the opinion of the Doctor the death was caused by injury No. 1.

5. The prosecution examined a number of eye witnesses, namely, Nazar Khan PW 2, Deena PW 3, Chatru PW 4, Mehtab Khan PW 6, and Hussain Khan PW 7.These witnesses supported the prosecution version and their evidence was accepted by the learned Additional Sessions Judge. It was however, found by the learned Judge and that finding has not been distributed by the High Court that the prosecution had failed to prove that there was any motive on the part of the appellants to inflict the injuries on the deceased. The High Court, while believing the evidence of the witnesses to come to the conclusions that the conviction of all the accused persons under S. 302 read with Section 34 of the Indian Penal Code was not justified as there was no common intention to commit the murder of Ahmad Khan but the intention was only to cause him a hurt or at the most a grievous hurt. This is what the High Court has stated in its judgment :

"None of the appellants other than Chahat Khan had any motive to take the life of Ahmad Khan. Accordingly, we find that the common intention in furtherance of which they acted was not to commit the murder but to cause grievous hurt. Injury No. 1, a lacerated wound, found on the head of the deceased, which resulted in fracture of the left parietal bone, according to the ocular evidence, was inflicted by Chahat Khan. He had clearly exceeded the common intention and was thus guilty of murder under clause Thirdly of Section 300 of the Indian Penal Code."

Chahat Khan was thus sentenced to life imprisonment but the conviction of the other three appellants before the High Court, namely, Bhup Singh, Harun and Mohar was altered to one under Section 325 read with Section 34 of the Indian Penal Code and their sentences were reduced to two years rigorous imprisonment each.

6. The main argument of the learned counsel for the appellant before us is that according to the prosecution evidence injury No. 1 which caused the death of Ahmad Khan could not be attributed to the appellant. Reliance has been pl