http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SHRI KISHUN & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT28/07/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ DUA, I.D.

CITATION:  1972 AIR 2056            1973 SCR  (3) 734  1972 SCC  (2) 537

ACT: 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.

HEADNOTE: 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. [736H-737E]

JUDGMENT: 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--

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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  their  houses. 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  examination. 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".               736               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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 dismissed. 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 well-founded. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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. 738