Judgment

JUDGMENT :- There are two appellants before us namely Gian Chand and Kishan Chand. Both of them along with two others were tried by the learned Additional Sessions Judge, Jalandhar for offences punishable under Ss. 302, 307 read with S. 34 IPC. The trial court acquitted the other two accused and convicted Gian Chand under S. 302 and sentenced him to undergo R.I. for life and to pay a fine of Rs. 1,000/-. Kishan Chand was convicted under S. 326, IPC read with S. 34, IPC and sentenced to 3 years rigorous imprisonment and to pay a fine of Rs. 500/-. Both of them preferred appeals to the High Court and the State also preferred an appeal against the acquittal of Kishan Chand of the offence punishable under S.302, IPC. The Division Bench of the High Court dismissed the appeals filed by Gian Chand and Kishan Chand but allowed the appeal filed by the State and convicted Kishan Chand under S. 302 read with S. 34, IPC and sentenced him to undergo R.I.. for life. Kishan Chands appeal is admitted under the provisions of the SC Enlargement of Criminal Jurisdiction Act. In respect of Gian Chand, Special Leave was granted and both of them figure as appellants in this Criminal Appeal No.54 of 1981.

2. The occurrence took place on 15th April 1978 at about 7 p.m. in the village Birpind which is at the distance of three miles from police station Nakodar. Because of some previous enmity this occurrence is alleged to have taken place. About a month prior to the occurrence Kishan Chand and another committed theft in respect of green fodder from the field belonging to Labmber Singh. The deceased Nirmal Singh caught hold of them. Because of that they bore grudge. On the day of occurrence, the four accused came with arms. Gian Chand had a Gandasi, Kishan Chand had a Khunda and the other two accused were armed with spears. On exhortation by Kishan Chand. Gian Chand dealt a blow on the head of the deceased. The other two acquitted accused are also alleged to have given blows. Thereafter Kishan Chand also took part in the actual occurrence and he gave one blow on the head of the deceased. Nirmal Singh fell down and on seeing P.Ws. 7 and 10 coming, they ran away. The occurrence was witnessed by P.W. 6 also, PW-6 the brother of the deceased took the injured in a bullack cart to the hospital. The Assistant Sub-Inspector PW 12 received the information from the doctor. He went to the hospital and recorded the statement of PW-6 and the case was registered. The injured was alive and doctor PW-l examined him and found five injuries. He died on 28th April 1978 i.e. after two weeks. An inquest was held and the dead body was sent for post-mortem. Doctor PW-2 conducted the post-mortem and he found three injuries. Injury No. 1 is wound 12cm x 2 cm bone deep on the top of head, oblique in direction starting from the centre of hair going obliquely to the left parietal region. The second injury was lacerated wound 3 cm x1/2 cm bone deep present on the inner side of left eye-brow. The third injury was lacerated wound 2 cm x 1/2 cm bone deep present on the left temporal region of scalp. The underlying bone was fractured. The other injuries are found to be simple. The prosecution mainly relied on the evidence of P.Ws. 6, 7 and 10. The trial court however held that so far as Kishan Chand is concerned he did not share the common intention to commit the murder of the deceased. The trial court however held that Gian Chand alone was responsible for causing the death and accordingly convicted him. As mentioned earlier, the High Court interfered and convicted both the appellants under S. 302 read with S. 34 IPC.

3. Learned counsel for the appellants submits that PWs-6 and 10 are interested witnesses. We have gone through their evidence. Both the courts below have given good reasons for accepting their evidence.

4. Now coming to the question of the nature of the offence, there are certain circumstances which have to be taken into consideration. According to the prosecution ca