Shri Kishun & Ors Vs. State of U.P
 INSC 157 (28 July 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ DUA, I.D.
CITATION: 1972 AIR 2056 1973 SCR (3) 734 1972
SCC (2) 537
Indian Penal Code ss. 302, 325, 34-Evidence
not establishing which of four accused gave fatal blow-High Court finding that
common intention was to cause grievous hurt--Accused can be convicted only
under s. 325/35 I.P.C.
The appellants were convicted by the trial
Court and the High Court inter alia for the offence of murder under s. 302 read
with s. 34 of the Indian Penal Code. In appeal to this Court it was contended
that the appellants were not guilty, on the facts of the case, of murder or
culpable homicide but of a lesser offence.
HELD : Apart from the injury on the head of
the deceased, which proved fatal, the other injuries were not of a serious
nature. There was no previous enmity between the parties and the quarrel arose
over a trifling incident. In the circumstances the High Court was justified in
its finding that the common intention of the four accused was only to cause
grievous hurt. The fact that one of them exceeded the bound and gave a fatal
blow on the head of the deceased would make him personally liable for the fatal
injury, but so far as the other three were concerned, they could be held liable
only for the injuries caused in furtherance of the common intention and not for
the fatal injury. As it was not possible on the material on record to find out
as to which one of the accused gave the fatal blow, there was no escape from
the conclusion that each one of the four accused appellants could only be
guilty of the offence under section 325 read with section 34 Indian Penal Code.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 273 of 1968.
Appeal by special leave from the judgment and
order dated December 15, 1967 of the Allahabad High Court in Criminal Appeal
No. 478 of 1965.
R. B. Datar, for the appellants O. P. Rana,
for the respondent.
The Judgment of the Court was delivered by--
Khanna, J. Shri Kishun, Ram Bali, Jai Shri and Jattan were convicted by learned
Sessions Judge Ballia under section 302 read with section 34 Indian Penal Code
for causing the death of Seru (aged 45) and under section 323 read with section
34 Indian Penal Code for causing injuries to Sadaphal (PW 2), and were
sentenced to undergo imprisonment for life on the former count and rigorous
imprisonment for a period of one year on the latter count. The sentences in the
case of each accused 735 were ordered to run concurrently. On appeal the High
Court of Allahabad affirmed the order of the trial court. The four accused
thereafter came to this Court by special leave.
The leave was, however, limited to the
question whether the offence disclosed was murder or culpable homicide not amounting
to murder or some lesser offence.
Ram Bali and Jattan accused are brothers.
Likewise, Shri Kishun and Jai Shri accused are brothers and are the nephew of
Ram Bali and Jattan. The prosecution case is that on February 13, 1964 about
half an hour before sunset Bhagwati (PW 3), who is aged about 11, and his
sister's son Kolahal were playing guchhi (a game played with paisa) in the
Khalihan of Shri Kishun accused. Nandlal, son of Shri Kishun, came there and
protested against the playing, of the game of guchhi in his Khalihan, Nandlal
also threw away in a neighboring field the paisa with which the game was being
played. A scuffle then took place between Nandlal and Bhagwati. Seru deceased
and Sadaphal PW on coming to know of the aforesaid scuffle went to Shri
Kishun's Khalihan and stopped the scuffle. Nandlal then began to weep and went
to his house. Seru, Sadaphal, Bhagwati and Kolahal made a search for the paisa
which had been thrown away by Nandlal but could not find it. They then left for
When they reached in front of the house of
one Suraj Mal, the four accused, who were armed with lathes, accosted' them.
The accused protested against the beating given to Shri Kishun's son (Nandlal)
and at the same time, belaboured Seru and Sadaphal. Seru on receipt of injuries
fell down on the ground and became unconscious. On alarm being raised, Sada
Shiva (PW 4) and Bajaram (PW 5) reached there, whereupon the accused run away.
Sadaphal PW carried Seru on a cot to police station Deoria. On the way Seru was
put in a riksha. The party then went to police station Beoria where first
information report was lodged by Sadaphal PW at 7.05 p.m. the same evening.
Seru and Sadaphal were then directed to go to the hospital for medical
Seru, however, died on the way. Post mortem
examination on the dead body of Seru was performed by Dr. C. D. Agarwal on
February 14, 1964. The following five injuries were found on the body of Seru :
"1. Contused wound 1"X-1/2"
bone on top of head with swelling on the forehead.
2. Contused wound I" X 1/2" bone,
front of right leg middle.
3. Interrupted abraison 2" X 3/4"
front of right leg.
4. Ecchymosis on right upper and lower eye
lid 1/2" x 3/4".
5. Swelling on left temporal region
2-1/2" X 2".
Death was due to shock and haemorrhage as a
result of the head injury. Sadaphal PW on examination by Dr. Nagrath was found
to have seven simple injuries caused with blunt weapon like lathi.
At the trial the plea of the appellants was
that a she buffalo belonging to Seru had trespassed into the field of Shri
Kishun accused. Jattan accused caught hold of the she buffalo and was taking it
to the cattle pond when Seru and Sadaphal made an effort to snatch The she
buffalo. They also assaulted Jattan with latbis. On alarm having been raised by
Jattan, Jai Shri reached there and both of them used their lathis in
self-defence. Evidence was led in defence to show that Jattan accused on being
examined on February 18, 1964 was found to have two injuries on his person.
The High Court in maintaining the conviction
of the accused appellants relied upon the evidence of four eye witnesses,
Sadaphal (PW 2), Bhagwati (PW 3), Sada Shiva (PW 4) and Rajaram (PW 5). It was
also observed by the High Court that the prosecution evidence did not indicate
as to which of the accused appellants had given the fatal blow to Seru.
Although the High Court took note of the fact
that there did not exist any previous enmity between the accused on the one
hand and Seru deceased on the other, the argument that the accused were not
guilty of the offence under section 302 read with section 34 Indian Penal Code
did not find favour with the High Court. In the result, the appeal was
In this Court Mr. Datar on behalf of the
accused-appellants has argued that the case against the accused falls under
section 325 read with section 34 Indian Penal Code and not under section 302
read with section 34 Indian Penal Code.
As against that Mr. Rana has supported the
judgment of the High Court. In our opinion, the submission made by Mr. Datar is
There was no previous enmity between the
accused-appellants on the one hand and Seru deceased and Sadaphal PW on (he
other. The occurrence was the off-shoot of a rifling incident in the nature of
a scuffle between two urchins.
Nandlal, it appears then went weeping and
told his father that he had been beaten by Seru and Sadaphal. The four accused
thereupon protested to Seru and Sadaphal for the beating given to Nandlal and
also belaboured them with lathis. Five injuries were caused to Seru. Apart from
the one injury on the head, which proved fatal, the other injuries were not of
a very serious nature. Sadaphal had seven injuries all of which were simple in
nature. The prosecution evidence, as observed by the High Court, does not
indicate 737 as to which one of the accused-appellants inflicted the fatal blow
on. the head of Seru. As such, none of the accused can be held to be personally
liable for the fatal injury. The liability can only be vicarious under section
34 of the Indian Penal Code and, as such, we have to find out as to what was
the common intention of the accused in furtherance, of which they caused
injuries to Seru and Sadaphal. In this context we find that the High Court has
arrived at the following finding :
"There could, therefore, be no doubt
that the common intention of the appellants was to give a severe beating to
Seru and Sadaphal." The above finding as well as the broad circumstances
of the case go to show that the common intention of the accused was to cause grievous
injury to the victim. The fact that one of them exceeded 'the bound and gave a
fatal blow on the head of the deceased would make him personally liable for the
fatal injury, but so far as the other three are concerned, they can be held
liable only for the injuries which were caused in furtherance of the common
intention and not for the fatal injury. As it is not possible on the material
on record to find out as to which one of the accused gave the fatal blow, there
is no escape from the conclusion that each one of the four accused can only be
guilty of the offence under section 325 read with section 34 Indian Penal Code.
We accordingly alter the conviction of each of the accused-appellants from
under section 302 read with section 34 Indian Penal Code to that under s. 325
read with s. 34 Indian Penal Code. Each of them is sentenced to undergo
rigorous imprisonment for a period of five years on that count. The sentence of
rigorous imprisonment for a period of one year awarded to each of the accused
under section 323 read with section 34 Indian Penal Code would run concurrently
with the above sentence. The appeal is allowed to that extent.
G.C. Appeal allowed.