JUDGMENT

Dr. ANAND, J.:—On 10th October, 1970, in village Changel, District Muzaffarpur, Harbansh Narain Lal Das, father of the appellant herein, was murdered and respondents Ram Briksh Rai, Giani Mandal and Mohinder Baitha along with Kusheshwar Rai (since deceased) were tried for the said offence of murder under Sections 302/ 34, IPC. The learned Additional Sessions Judge by his judgment dated 31-3-1973 convicted the three respondents herein for the offence under Sections 302/34, IPC and sentenced each one of them to suffer rigorous imprisonment for life. Giani Mandal, respondent No. 2 was also convicted for an offence under Section 379 of the Code for stealing certain articles from the person of the deceased. However, no separate sentence was awarded for this offence. The respondents preferred an appeal against their conviction and sentence in the High Court of Judicature at Patna. The High Court after reappraisal of the entire evidence on record concurred with the findings recorded by the trial Court as regard the guilt of the respondents. In the words of the High Court:

"From the scrutiny of the evidence discussed above, we feel no hesitation in coining to the conclusion that the prosecution story revealed by the two witnesses and corroborated by the other witnesses, namely, Mohan Jha (PW 1), Yashoda Devi (PW 7) and the village Choukidar (PW 10) as well as the evidence of the Investigation Officer and the doctor is fully established beyond all reasonable doubts."

However, the High Court found that the conviction of the respondents for an offence under Sections 302/34, IPC, in the facts and circumstances of the case, was not justified and that the respondents could be convicted only for an offence under Section 304/ Part II read with Section 34, IPC. The conviction was, by the judgment of the High Court dated 28-1-1977, accordingly altered and the sentence for imprisonment for life was substituted by a sentence of seven years rigorous imprisonment. The conviction of Giani Mandal for the offence under Section 379 was maintained but again no separate sentence was awarded for the same.

2. Aggrieved, by the judgment of the High Court, the appellant, son of the deceased, filed a special leave petition in this Court in 1984 after nearly seven years of the order of the High Court and 81 days, even after the High Court declined to grant a certificate of fitness applied for in 1984 itself, for filing an appeal to the SC. Along with the special leave petition, an application for condonation of delay was also filed on 15-1-1985. This Court by an order dated 17-1-1985, condoned the delay and granted special leave to appeal. That is how the appeal is before us.

3. The appellant has argued his case in person. He placed the facts of the case before us with clarity. It was submitted by him that in the facts and circumstances of the case, the High Court erred in modifying the conviction from an offence under Section 302/ 34, IPC to the one under Section 304/Part II /34, IPC. He took us through the relevant portion of the evidence on the record. According to the appellant, the respondents surprised the deceased, who was going to his paddy fields and after relieving him of a loaded pistol, assaulted him with fist blows, slaps and kicks and then the neck of the deceased was tied with a rope and he was dragged with a premeditated intention to kill him. The appellant submitted that the murder was a gruesome one and since the method of "hanging" was used, the respondents had shared the common intention to commit the murder of the deceased and they should not only have been convicted for an offence under Section 302/34, IPC but also awarded the capital punishment of death. The respondents on the other hand have submitted through their learned counsel that from the established circumstances on the record, intention on the part of the accused to commit the murder of the deceased is not at all discernible.

4. As already noticed, the occurrence took place