IMPORTANT POINT
When two accused were convicted under Section 302/149 IPC & they were alleged to have inflicted lathi blows on deceased and no injury by lathi blow was found by doctor then these accused could not be convicted & injury on deceased were attributable to other accused convicted for murder.

qORDER

Leave granted.

2. Four persons were convicted under Section 302 read with Section 149 of the Indian Penal Code in the matter of murder of Bahadur Singh on 18-7-1984. There was one more assailant involving in the case and that made the unlawful assembly. The High Court confirmed the conviction and sentence passed on all the four persons and dismissed the appeal filed by them. When the special leave petition was filed by all those four persons we felt that the conviction passed on appellants Murarilal and Vinod Kumar was well merited and cannot be re-opened. Hence we dismissed the special leave petition in respect of them. We issued notice only in respect of the present appellants—Dinesh Kumar and Chhotelal.

3. These two appellants alleged to have inflicted injuries on the deceased with lathi blows. The injuries have been noted by the doctor who conducted the post mortem examination. The following are those injuries:

“I. Inside wound size 2” x 1” x ½ ” on left side of chest on anterior surface at the level of 10 rib on medical vacuolar line.

II. Incised wound size 2” x 1” x 1” on right side of back on medial surface of seapula at the level of 7th rib.

III. Incised wound 2” x 1” x 5” on the right side of back at the level of 7th rib.

IV. Incised wound size 2” x 1” x 1” on the left side of the back at the level of 10th rib.

V. Incised wound size 3” x 2” 1” on Medical surface, of lower part of right arm”.

4. PW9 (Dr. Virendra Prakash Sharma) said in his evidence that he made a thorough examination of the dead body and found that there was not a single injury which could be the result of a blow with lathi. There was not even swelling on any part of the body which could have been attributed to the lathi blow. In the absence of any such injury it is difficult for the court to believe that anyone would have inflicted blows on the deceased with lathi. The persons who were convicted and the assailant who subsequently died were the persons really involved in the crime.

5. In view of the said facts it is difficult for us to sustain the conviction of these appellants. Hence, we allow this appeal and set aside the conviction and sentence passed on appellants Dinesh Kumar and Chhotelal. We acquit them. We direct them to be set at liberty forthwith unless they are required in any other case.

Appeals allowed.