JUDGMENT

The appellant, Hanuman, along with six others were tried for offences punishable under S. 325 read with. S. 149, 302 read with S. 34 of the I.P.C. The trial Court convicted four of them under Section 302 read with S. 34, I.P.C. including the appellant and the rest for minor offences. All of them preferred appeal and the High Court altered the conviction of the appellant to one under Section 302 simpliciter and acquitted the other three of the charge of murder and confirmed the convictions in respect of minor offences.

2. This appeal at the instance of Hanuman pursuant to special leave granted by this Court is against the said conviction. This is an appeal where the place of occurrence, the time of occurrence, the presence of the accused and the presence of the injured witnesses are not in dispute. According to the prosecution on 19-3-1980 a quarrel took place between the two families and all the accused who formed into an unlawful assembly attacked the deceased and his family members. During the course of the said occurrence one Sajjan Singh received fatal injuries and died. Four of the accused including the appellant also received number of injuries. So far as the appellant is concerned, the evidence of the eye-witnesses is to the effect that he was armed with Kulhari (an axe) and rest were armed with lathis and it is further alleged that the appellant dealt a blow on the head of the deceased Sajjan Singh reversing the kulhari which unfortunately resulted in fracture of the skull which proved fatal. The doctor who conducted the post-mortem, noticed six injuries on the deceased out of which two were abrasion and one was swelling. One injury that proved fatal was lacerated wound on the left parietal region of skull which resulted in the communited fracture.

3. The evidence of the eye-witnesses would show that there was a fight between the two families and in those circumstances the High Court rightly held that the common object of the unlawful assembly was not to commit the murder and convicted the appellant only for his individual act. Now the question is whether the offence committed by the appellant is one punishable under S. 302 simpliciter. The quarrel, which took place between the two families was, according to the prosecution, a result of misbehaviour of Raghubir Singh with Rajbala wife of Prabhati, the brother of Hanuman. The quarrel took a serious turn and both sides indulged in fighting armed with weapons. It is during such a situation the appellant is alleged to have dealt a blow with blunt side of the axe on the head of the deceased. In these circumstances, it is difficult to hold that either Clause I or III of Section 300 is attracted. However, the appellant must be attributed knowledge that by inflicting such a blow he was likely to cause the death of the deceased. Accordingly, we set aside the conviction of the appellant under S. 302, I.P.C., and the imprisonment for life awarded therein. In the special circumstances of the case that the appellant also received number of injuries, we convict the appellant under Section 304, Part-II and sentence him to undergo R.I. for five years. The appeal is disposed of accordingly.

Order accordingly.

For Citation : AIR 1994 SC 1302