IMPORTANT POINTS
When assault takes place at the spur of the moment without premeditation and there is no common intention, each appellant would be liable for his own individual acts.
In case of simple injuries conviction u/s 307 cannot be sustained.

JUDGMENT

NAVIN SINHA, J.

The two appellants stand convicted under Sections 323 r/w 34, 324 r/w 34 and 307 r/w 34 IPC to undergo one year, two years and eight years of rigorous imprisonment respectively. Appellant No.2 has been additionally convicted under Section 304 Part II r/w 34 to undergo rigorous imprisonment for eight years and fine with a default stipulation.

2. The genesis of the assault lies in an occurrence in the morning of 15.04.1980. The bullocks of the appellants strayed into the neighbouring compound of the deceased, Prem Lal who drove them out with a lathi, leading to an altercation with the accused Kashmira, since deceased. The latter went back to his house, and returned immediately armed with a lathi, accompanied by the appellants, who were also armed with an iron rod and a knife respectively. They together assaulted the deceased Prem Lal. PW-1, Banarasi, the informant, and PW-2, Omveer, an injured witness and another injured witness Rajendra Singh intervened by picking up a lathi from the ground and retaliated in self-defence. The appellants then scampered away from the place of occurrence. The fourth accused was held to be a juvenile.

3. The postmortem of the deceased done by PW-7, Dr. B.K. Mishra, revealed three abrasions on the abdomen, back and shoulder apart from two incised wounds, muscle deep, on the scapula and the left thigh, leading to cut of the femoral artery. Death was attributed to the last injury. The abrasions were opined to have been caused by a lathi. PW-3 and Rajendra Singh sustained simple injuries, as opined by PW-6, Dr. Ajeet Singh, attributable to a knife and iron rod.

4. The High Court, in appeal, after consideration of the evidence, concluded that common intention could not be inferred in the facts of the case. The appellants were held liable for their individual acts. The conviction of the appellants under Section 302 r/w 34 IPC was set aside. Further, holding that the assault on the deceased had taken place on the spur of the moment, preceded by an altercation, without any premeditation, the conviction of appellant no.2 was altered to one under Section 304 Part II r/w 34 IPC. The rest of conviction was sustained relying on the injury reports of PW-2 and Rajendra Singh.

5. Shri S.R. Singh, learned Senior Counsel appearing for the appellants, submitted that from the injuries suffered by them it is manifest that they had acted in self-defence and were not the aggressors. The High Court has concluded the absence of any common intention leaving each appellant answerable for his own acts. If that be so, and the injuries caused to PW-2 and Rajendra Singh have been found to be simple in nature, their conviction under Section 307 r/w 34 IPC is not sustainable. It was lastly submitted that there was no intention to cause death, much less knowledge can be attributed from the nature of the assault. The fortuitous cutting of the femoral artery cannot impute either intention or knowledge. Had the intention been to cause death, the appellants would not have run away without accomplishing their task, and the assault would have been made with more severity on vital parts of the body. The conviction of appellant no.2 under Section 304 Part II IPC is therefore also not sustainable. The offence deserves to be reduced and/or alternatively the sentence was excessive in the facts of the case arising out of a dispute between neighbours over cattle that had strayed. Reliance was placed on Darshan Singh and others vs. State of Punjab, 2009 (16) SCC 290 and Maqsood and others vs. State of Uttar Pradesh, 2016 (15) SCC 748.

6. Learned counsel for the State opposing the appeals submitted that the conviction of the appellants called for no interference. Knowledge under Section 304 Part II IPC, that death was likely to be caused can easily be attributed to appellant no.2 from the nature of the assault made with severity leading to the femoral artery being cut and which was the cause of death. The injured had suff