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PETITIONER: BHAWAN SINGH & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       05/11/1997

BENCH: G.T. NNAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.T. NANAVATI, J.      The two appellants in this appeal were convicted by the trial  court   along  with   accused  Bishwanath  Singh  for committing the  offence punishable  under Section  302  read with Section  34 IPC.   In the appeal filed by them the High Court altered  their conviction  from under Section 302 read with Section  34 IPC.   In the appeal filed by them the High Court altered  their conviction  from under Section 302 read with Section  34 IPC  to one  under Section  326  read  with Section 34 IPC. Both the appellants were sentenced to suffer rigorous imprisonment  for 7  years and  accused  Bishwanath Singh was  awarded rigorous  imprisonment for  3 years.  All the three  convicted  accused  applied  to  this  Court  for special leave  to file  an appeal.  Leave was granted to all of them.   Bishwanath  Singh’s appeal  being Criminal Appeal No.356/88 came  up for  hearing earlier and it was dismissed by this  Court on  January 18,  1995.   The  appeal  of  the present two  accused as unfortunately not listed fro hearing along with  that appeal  and therefore it is now heard by us separately.      At the  outset, the  learned counsel for the appellants stated that  appellant Bhagwan  Singh has died and therefore his appeal/has  abated.   Therefore the  appeal filed by Raj Nath Singh alone now survives.      Both the courts below have held that Raj Nath Singh had given a  sphere blow  on the  chest of  Brijlal.  The courts have also  held that  injuries were  caused  to  Brijlal  in furtherance  of  the  common  intention  of  all  the  three accused.    The  reason  why  the  High  Court  altered  the conviction of  Raj Nath Singh from that under Section 34 IPC is that  according to  the evidence of Dr. C.B. Tripathi who had held  the post  martem examination  8  injuries  on  the person of  the deceased  were medically interferred with and the death  was caused  due to  pus in  the brain.   The High Court was,  therefore, of the view that the death of Brijlal was not  the direct  result of  the injuries  caused by  the accused.      What is  contended us  by the  learned counsel  for the appellant is  that in  view of  the said finding recorded by

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the High  Court the  appellant Raj  Nath Singh  could not be convicted under  Section 326  read with  Section 34 IPC.  We are of  the opinion  that the said finding of the High Court is not  correct.   Nothing was  brought  out  in  the  cross examination of  the doctor  to indicate  that  any  external factor had  contributed to  the formation  of pus justifying the view that the death of Brijlal was not the direct result of the  injuries caused  to him by the accused.  That apart, what we  find is  that Dr.  Rajendra  Singh  (P.W.  12)  has clearly stated  in his  evidence that injury which was found on the  abdomem of Brijlal was a grievous injury and on that evidence alone conviction of the appellant under SECTION 326 read with  Section 34  IPC is  justified.  As we do not find any error  in the  judgment of the High Court this appeal is dismissed.   The appellant  is on bail.  So he is ordered to surrender to  custody to  serve out the remaining portion of his sentence.