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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: LAKHAN & ORS.

DATE OF JUDGMENT:       11/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These 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.      The 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. 1977, 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.      2. Lacerated  wound 1/4"  x 1/4"  x      bone   deep   present   over   left      zygmatic  bone,   bone   underneath      fractured.      3.  Abraded   contusion  2’   x  1"      present 1" below the injury no.1.      4. Lacerated  wound 1"  x 1/4" bone      deep present over the middle of the      chin, bone underneath fracture.      5. Abraided  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

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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.      Learned 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. Whether 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.      The 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.