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PETITIONER: KARTAR SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       04/01/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KIRPAL B.N. (J)

CITATION:  1996 SCC  (7) 300        JT 1996 (1)   482  1996 SCALE  (1)330

ACT:

HEADNOTE:

JUDGMENT:                             WITH         CRIMINAL APPEAL NO.248 OF 1983 Dilbagh Singh Dilbagh Singh V. State of Punjab                       J U D G M E N T M.K. MUKHERJEE J.      These two  appeals have  been heard  together  as  they arise out  of a  common judgment  delivered by  the Punjab & Haryana High  Court affirming  the convictions and sentences recorded against  the five  appellants  under  Section  302, 302/149, 324,  324/149 of  the  Indian  Penal  Code  by  the Additional Sessions  Judge, Amritsar.  While  one  of  these appeals (Crl.  Appeal No.  248/83) is at the instance of one of the  five convicts,  the other (Crl. A. No. 67-67A/83) is by the  remaining four. During the pendency of these appeals in this  Court one  of the  appellants, namely, Pargat Singh died and consequently his appeal abates.      Having gone through the judgments of the learned Courts below we  find ourselves  in  complete  agreement  with  the concurrent findings  recorded by them - as they are based on a careful  consideration  and  discussion  of  the  evidence adduced during trial - except that it cannot be said to have been conclusively  proved, in  view of  the evidence  of Dr. Rajinder Singh  (PW 1) who held post-mortem examination upon deceased Mota  Singh, that  the appellants shared the common object of  causing his  murder. Except  one  incised  injury found by him on the skull of the deceased all other injuries were  lacerated   injuries  on  the  legs.  Those  lacerated injuries, according to PW 1 could be caused by fire-arm, and the incised injury by a sharp edged weapon. According to the prosecution case as detailed by the eye witnesses two of the appellants shot  at the deceased with their respective fire- arms and,  therefore, if  the common  object of the unlawful assembly of  which they were members was to kill him, it was

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expected, in  the fitness of things, that they would shot at vital parts  of his  body, more  so when the deceased was at close quarters. The evidence of the doctor further discloses that there  was no  corresponding  internal  injury  of  the incised wound  which necessarily  means that that injury was also not  intended to  cause the death of the deceased. Such being the  state of  evidence on  record it can only be said that the common object of the unlawful assembly was to cause grievous hurt to the deceased with dangerous weapons.      For the  foregoing reasons  we allow this appeal to the extent  that  the  convictions  and  sentences  of  the  two appellants (Kartar  Singh and  Dilbagh Singh)  under Section 302 and  of the  others under  Sections 302/149  IPC are set aside; and instead thereof they are convicted under Sections 326 and  326/149 IPC respectively. For the above convictions each of them will suffer a sentence of rigorous imprisonment for seven years. The other convictions and sentences imposed therefor will,  however, stand.  The  substantive  sentences will run concurrently. The appellants, who are on bail, will now surrender to their bail bonds to serve out the sentences imposed upon them.