Judgment :

Madan B. Lokur, J.

1. The question agitating us relates to the circumstances (if any) under which a conviction for murder under Section 300/302 of the Indian Penal Code, 1860 (IPC) could be altered into a conviction under Section 322/325 of the IPC (voluntarily causing grievous hurt) or under Section 326 of the IPC (voluntarily causing grievous hurt by dangerous weapons or means), ignoring or overlooking the intermediate possibility of a conviction under Section 304 of the IPC.

2. The question has arisen since in this appeal, despite a death having resulted in an incident involving the respondents, their conviction for murder by the High Court has been altered to a conviction for voluntarily causing grievous hurt, ignoring or overlooking a homicide.

The facts

3. On 14th December, 1996 the appellant (Richhpal Singh Meena) and a few others were sitting beside a well near the agricultural fields. Richhpal's father Sunderlal Meena (deceased) had gone to inspect the fields. While he was there, Sunderlal met Kailash, Ghasi, Lala and their respective wives and their mother. Soon thereafter, there was a hot exchange of words between them regarding damage to the embankment in the agricultural fields.

4. Kailash, Ghasi and Lala told Sunderlal that they were looking for him and he had now walked into the trap. Saying this, Kailash caught hold of Sunderlal while Ghasi gave him a blow with a shovel and Lala gave him a blow with a lathi on his back. On receiving the blows Sunderlal fell down and on hearing noises, Richhpal and others ran towards the spot and found that Sunderlal was being beaten up by the ladies. With the assistance of those who were with Criminal Appeal No. 341 of 2005 Page 2 of 29 him, Richhpal managed to take Sunderlal to a hospital in Alwar but he succumbed to the injuries.

5. A post-mortem examination was carried out by Dr. Amar Singh Rathore and he gave a report that the two injuries given to Sunderlal were sufficient to cause death in the normal course. The injuries were:

External injuries-

1. Contusion abrasion measuring 8 x 10 cm reddish, located on left side of the rear side of the back.

2. Contusion abrasion measuring 8 x 8 cm located on right side of chest.

Internal injuries-

Fracture on the 4th and 5th ribs located on right side of the chest. Right lung crushed measuring 4 x 3 x 1 cm. Blood clotting in lung. Fracture in 7th and 8th rib on left side. Lung crushed. Plurae and sic(?) of either side of the lungs torn.

Dr. Rathore deposed that shock, haemorrhage and lung injuries resulted in his death. The injuries were sufficient to cause death in the normal course.

6. On these broad facts, a charge sheet was filed against Ghasi and Lala for an offence punishable under Sections 302, 302/34 and 447 of the IPC.

7. On the evidence adduced before him, the Additional District and Sessions Judge-III, Alwar convicted Ghasi and Lala for an offence punishable under Section 302 of the IPC as well as for an offence punishable under Section 447 of the IPC. However, they were acquitted of the charge framed under Section 302/34 of the IPC.

8. Feeling aggrieved, the convicts preferred D.B. Criminal Appeal No. 403/1997 in the Jaipur Bench of the Rajasthan High Court. By a judgment and order dated 16 th April, 2003 the High Court concluded that Ghasi and Lala could be convicted only under Section 325/34 of the IPC and not under Section 302/34 of the IPC. The High Court also held that they could not be convicted under Section 447 read with Section 302 of the IPC. The sentence awarded to them was imprisonment for the period undergone, that is, about 18 months imprisonment.

9. It will be noticed that Ghasi and Lala were not convicted by the Trial Judge under Section 302/34 of the IPC but were convicted only under Section 302 and Section 447 of the IPC. Clearly, therefore, the High Court did not correctly record the final conclusion of the Trial Judge. However, this is a minor matter.

10. While hearing this appeal fi