IMPORTANT POINT
Ingredients of section 302 and 326 IPC discussed.

JUDGMENT :

CHANDRAMAULI KR. PRASAD,J. –

In the present appeal by way of special leave, we are concerned with appellants Vijay Singh and Hari Singh.

2. According to the prosecution, on 16th of June, 1992 at about 6.30 A.M., a report was lodged by the informant, Pohap Singh (PW-1), alleging that while he was at his house, his father Bhagirath (deceased) was returning home after answering the nature’s call and at that time, 11 accused persons including appellant no. 2 Hari Singh armed with farsa and appellant no. 1 Vijay Singh armed with a ballam and other accused armed with axes surrounded him. Seeing this, according to the informant, his mother Prema Bai (PW-2), his wife Sheela (PW-3) and grandfather Jagannath (PW-6) went to rescue him, whereupon informant Pohap Singh was assaulted by lathi by one of the accused. Meanwhile, appellant no. 2, Hari Singh inflicted an injury on the neck of the deceased with farsa upon which he fell down. Thereafter, all the accused assaulted the deceased with the weapons with which they were armed. It is the case of the prosecution that appellant no. 1, Vijay Singh caused an injury with a ballam near the eye of the deceased and he died on the spot.

3. On the basis of the report given by Pohap Singh, a case under Section 147, 148 and 302/149 of Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) was registered. Police after usual investigation submitted the charge-sheet against all 11 accused persons and ultimately they were committed to the Court of Sessions to face the trial. The Sessions Judge acquitted 9 of the 11 accused and convicted the appellants herein for commission of offence under Section 302 of the IPC and sentenced them to imprisonment for life. The learned Judge found the allegations as to the infliction of injuries, on the head and neck of the deceased by specific weapon such as ballam by appellant no.1 and farsa by appellant no.2 respectively, to have been corroborated by the medical evidence. Hence, the two appellants were convicted and sentenced as above.

4. On appeal, the High Court confirmed their conviction and sentence and while doing so, observed as follows:

“5………Dr. Kapil Dev Singh, who has performed the postmortem of the deceased on 16.6.1992 and found as many as six injuries on the body of the deceased, out of which injury No.1 is caused by some pointed object near the face of the deceased. Thus, the injury attributed to Vijay Singh is corroborated. The other injury was incised wound on the body of the deceased. All the injuries were caused by sharp and edged weapons. As per opinion of Doctor injury No. 1 was sufficient to cause death of the deceased…………

6. After perusal of the statements of PW-1, PW-2 and PW-3, we find that the Sessions Court rightly convicted the present appellants. So far as the other accused are concerned the Doctor has specifically stated that except the injury No.1 which is attributed to Vijay Singh, all other injuries were caused by the same weapon. Thus, the other injuries are attributed to Hari Singh. Moreso, the witness could not point out which of the injuries were caused by other accused, hence, acquitted the other accused. But so far as the present appellants are concerned, there are specific allegation against them for causing injuries to the deceased.

“Underling ours”

5. Aggrieved by the same, the appellants are before us.

6. At the outset, while assailing the conviction of the appellants, Mr. Rajesh learned counsel appearing for the appellants, submits that the High Court erred in holding that excepting injury no. 1, all other injuries are attributable to Hari Singh. He draws our attention to the evidence of PW-2 Prema Bai and PW-3 Sheela, who claim to be the eye-witnesses to the occurrence and have clearly stated in their evidence that the appellant Hari Singh gave farsa blow on the neck of the deceased and other accused persons (since acquitted) have also assaulted the deceased with farsa. We have gone through the evidence of the eye-wi