IMPORTANT POINT
Hurt – Merely because no fracture was found cannot take case out of Section 302 IPC when deceased died due to head injury. Merely because deceased died after six days could not have been ground to set aside conviction for offence under Section 302 IPC and to convert it to Section 326 IPC.

JUDGMENT

M. R. Shah, J

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.09.2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.870 of 1987, by which the High Court has allowed the said appeal in part and has converted the conviction of the accused from that of Section 302 read with Section 34 IPC to Section 326 IPC, the State of Uttar Pradesh had preferred the present appeal.

2. As per the case of the prosecution when the deceased was working in his agricultural field all the accused persons reached there and started abusing him. That the deceased was beaten by the accused persons. All the accused persons were having different weapons with them. All of them started beating the deceased resulting in a number of injuries and later considering his serious condition, he was taken to hospital at Lucknow where after about six days, he succumbed to the injuries. All the accused persons were charged and tried for the offences under Section 302 read with Section 34 of the IPC except accused no.1 Jai Dutt who was charged and tried for the offence punishable under Section 302 IPC. To prove the charge against the accused, the prosecution examined a number of witnesses of which, PW1 and PW2 were the eyewitnesses to the incident. By examining PW8 Dr. P.R. Mishra who conducted the postmortem on the body of the deceased, the prosecution brought on record the postmortem report. The trial Court convicted Jai Dutt for the offence under Section 302 IPC and sentenced him to undergo life imprisonment. The learned trial Court also convicted other accused Lal Bahadur, Sher Singh and Shastri for the offences under Section 302 read with Section 34 of the IPC and sentenced them to undergo life imprisonment.

2.1 Feeling aggrieved and dissatisfied with the judgment and order of conviction passed by the learned trial Court, all the accused preferred the criminal appeal before the High Court. During the pendency of the appeal, accused Lal Bahadur and Sher Singh expired. Therefore, appeal qua those persons abated. That by impugned judgment and order the High Court has partly allowed the said appeal qua rest of the accused Jai Dutt and Shastri and has converted the conviction from that of Section 302 read with Section 34 IPC to Section 326 IPC, mainly on the ground that the deceased died after six days from the incident and no fracture of head was found. The High Court has imposed the sentence of two years only for the offence under Section 326 IPC solely on the ground that incident occurred about 36 years back and therefore imposing two years sentence would be sufficient to meet the ends of justice.

2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court converting the conviction from Section 302 IPC to Section 326 IPC, the State has preferred the present appeal.

3. Shri Rana Mukherjee, learned Senior Advocate appearing on behalf of the appellant – State has vehemently submitted that in the facts and circumstances of the case the High Court has materially erred in converting the conviction from Section 302 IPC to Section 326 IPC.

3.1 It is submitted by Shri Mukherjee, learned Senior Advocate that as such the High Court has specifically held against the accused as they went to the field of the deceased and started the quarrel and used weapons and caused the injuries. It is submitted that the High Court has also observed and held that PW1 and PW2 – eye witnesses are wholly trustworthy but there is no reason to disbelieve their statements. It is submitted that despite the above when the deceased succumbed to the injuries and died because of the head injury, a clear case of murder was made out and therefore, the High Court ought not to have converted the conviction from Section 302 IPC to Section 326 IPC.

3.2 It is submitted that merely because the deceased died after six days could not have been the ground to convert the conviction from Section 302 IPC to Sectio