U.P. Vs. Lakhan & Ors  INSC
433 (11 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R Leave granted.
appeals by special leave arise from the judgment of the Division Bench of the Allahabad
High court, dated February
18, 1991 in Criminal
Appeal Nos. 1026 and 1121 of 1978.
prosecution case is that on March 6, 1977, while the deceased Sukhuwa and his
sons and his younger brother were returning from the Holi festival and reached
the house of the accused, suddenly all the three accused armed with lathis
attacked the deceased on the head and other parts of the body. When the sons
and brother of the deceased raised alarm, all of them ran away. The deceased
had fallen on the ground. He was taken on a cot his house. Thereafter, he
breathed his last. F.I.R came to be filed on the same day at about 10.30 p.m. Investigation started and the doctor M.M.S.A. Khan,
who conducted the post-mortem on March 8.
opined that the injuries were sufficient to cause death in the ordinary course
of nature. The Autopsy Surgeon found the following ante-mortem injuries :-
"1. Lacerated wound 2" x 1" x bone deep present over the left
side of forehead. Left eye-bro and outer of left eye bones underneath.
Lacerated wound 1/4" x 1/4" x bone deep present over left zygmatic
bone, bone underneath fractured.
Abraded contusion 2' x 1" present 1" below the injury no.1.
Lacerated wound 1" x 1/4" bone deep present over the middle of the
chin, bone underneath fracture.
contusion 2" x 1-1/4" present over the posterior aspect of lower
third of right forearm, bones underneath fractured." The question,
therefore, is whether all of them shared common intention to cause death of the
deceased or the offence was one under section 304, part II as found by the High
Court ? The sessions Judge after recording the evidence and on the nature of
the evidence that the offence is one of murder punishable under section 302
I.P.C. and accordingly the respondents came to be convicted under section 302
read with section 34 I.P.C and were sentenced to undergo imprisonment for life.
On appeal, the High court while accepting the evidence of the direct witnesses,
the sons and brother of the deceased, PWs.1 to 3, and accepting the evidence of
the doctor came to the conclusion that the prosecution has proved the case
beyond reasonable doubt, but suddenly jumped to the conclusion that the accused
has no intention to kill the deceased.
amicus curiae for the respondent has contended that the accused had no motive and
intention to kill the deceased. We find no force in the contention. The motive
is licked up in the heart of the accused and therefore, it is to be adjudged
from the circumstances available on record.
the accused have intended to cause death also is an inferential fact drawn from
the circumstances. It is seen, as accepted by the High Court at page 20 of the
paper book, that the deceased and witnesses were unarmed and when they were
returning from the Holi festival and reached the stated place, all of a sudden
the accused in concert armed with lathis attacked the deceased and caused
injuries on the head and other vital parts of the body, as noted above. The
mere fact that extensive damage has not been caused to the deceased does not
establish that the offence is not one of under punishable under section 302.
All the accused armed with lathis lay in weight. The High Court, therefore,
committed manifest error in converting the offence from murder to culpable
homicide not amounting to murder punishable under section 302 part II, I.P.C.
appeals are accordingly allowed. The judgment of the High Court converting the
offence stands set aside. The accused stand convicted for an offence under
section 302 read with section 34 I.P.C. and they are sentenced to undergo
imprisonment for life. They shall be directed to be taken into custody
forthwith to undergo the sentence.