IMPORTANT POINT
When due to enmity between the parties deceased was brutally and badly assaulted by the accused persons and cumulative effect of injuries was the cause of death in a ell planned manner, conviction u/s 302, IPC is justified.

JUDGMENT

R.M. Lodha, J.-Five persons namely; Surendra, Narendra, Yogesh all s/o Anoop Singh, Amar Pal s/o Jagpal Singh and Anil Kumar s/o Roopchand Tyagi were tried for the murder of Ramchandra Singh under Sections 147,148,302 read with Section 149 of the Indian Penal Code, 1860 (IPC).

2. The incident occurred on May 19, 1980 at 1.30 p.m. According to the prosecution case, Ramchandra Singh (deceased) who was on his way on that day to Siana in a buffalo cart with a cement permit and some money was waylaid by the accused persons; Surendra and Narendra were armed with burri and knife respectively and other three were having lathis with them. There was a criminal litigation pending between the deceased Ramchandra Singh and the accused Surendra, Narendra and Yogesh. These three accused are real brothers. Accused Anil Kumar happens to be their brother-in-law. Surendra, at the time of incident, exhorted the other accused to kill Ramchandra Singh. In the incident, Ramchandra Singh sustained 21 injuries. He died on the next day.

3. On conclusion of the trial, the IVth Additional Sessions Judge, Bulandshahar convicted the accused for the offence punishable under Section 302 read with Section 149 IPC. Accused Surendra and Narendra were convicted under Section 148 IPC additionally while accused Yogesh, Amar Pal and Anil Kumar were convicted under Section 147 IPC in addition to the offence under Section 302 read with Section 149 IPC. All of them were sentenced to suffer life imprisonment for commission of offence punishable under Section 302 read with Section 149 IPC. Accused Surendra and Narendra were sentenced to rigorous imprisonment for two years for the offence punishable under Section 148 IPC while accused Yogesh, Amar Pal and Anil Kumar were sentenced to rigorous imprisonment for one year for the offence punishable under Section 147 IPC.

4. Aggrieved by their conviction and sentence, the four convicts namely; Surendra, Narendra, Yogesh and Amar Pal filed one appeal while the fifth convict Anil Kumar filed a separate appeal before the High Court. Both the appeals were heard together. The Division Bench of the Allahabad High Court, vide its judgment dated November 14, 2007, dismissed both the appeals.

5. Special Leave Petition (Crl.) No. 2874 of 2008 is at the instance of accused Surendra, Narendra and Yogesh. The other Special Leave Petition (Crl.) No. 3354 of 2008 is at the instance of accused Anil Kumar.

6. This Court on October 3, 2008, in both the matters, issued notice limited to the nature of offence. The controversy is confined to this aspect only.

7. Mr. Nagendra Rai, learned senior counsel for the petitioners in S.L.P. (Crl.) No. 2874 of 2008 submitted that the injuries sustained by the Ramchandra Singh which cumulatively resulted in his death leave no manner of doubt that the accused persons did not act in prosecution of the common object to commit the murder of Ramchandra Singh. Had the intention been to commit the murder of Ramchandra Singh, learned senior counsel submitted, accused Surendra would not have used burri as lathi and the other accused would not have caused injuries on the non-vital parts of the deceased Ramchandra Singh. In support of his contentions, Mr. Nagendra Rai, learned senior counsel heavily relied upon the decision of this Court in Sarwan Singh and others vs. State of Punjab, (1978) 4 SCC 111 and Kusum Chandrakant Khaushe vs. Hmlingliana and others, AIR 1993 SC 401.

8. Mr. P.H. Parekh, learned senior counsel appearing for the petitioner Anil Kumar in S.L.P. (Crl.) No. 3354 of 2008 adopted the arguments of Mr. Nagendra Rai, learned senior counsel. He further submitted that accused Anil Kumar was not the resident of the village where the incident occurred and there was no enmity between him and the deceased Ramchandra Singh. Accused Anil Kumar had come to the village to take his wife and merely because he was armed with a lathi, it can not be said that he acted in furtherance of the common object wi