GOPAL SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) ORIGINALLY six accused were tried by the Sessions Court. A -1, Mahendra Singh was convicted under Sections 302/34, 302 and 148, IPC and was sentenced to undergo life imprisonment under the first count and two years' RI under the last count. The other accused Nos. 2 to 6 were convicted under Section 302 read with Section 34, IPC and sentenced to undergo imprisonment for life. They have also been convicted under Section 147 and sentenced to undergo one year's RI. The sentences in each case were directed to run concurrently. All the accused preferred an appeal to the High Court. While the appeal was pending accused No. 3, Chathu Singh, died and, therefore, his appeal abated. In respect of other five appellants it was contended before the High Court that the origin of the incident has not been put forward in its true form by the prosecution and the evidence of the eye -wit -negses suffered from many infirmities and, therefore, they are entitled to be set aside. The High Court accepted the testimony of the eye -witnesses and confirmed their convictions and sentence. The original five accused A -1, A -2, A -4, A -5 and A -6 preferred special leave petition. This Court rejected the special leave petition of A -1, Mahinder Singh and granted with respect to the rest of the accused A -2, A -4, A -5 and A -6 limited to the question of the nature of offence and sentenced.

(2.) THE prosecution case is that there is some land dispute between the accused and the deceased party. The incident took place on 1 -6 -1971. On that day it is alleged that at about 8.00 a.m. Dharnidhar Singh deceased nephew of PW 6 had gone to the field to plough the same. While ploughing and sowing was going on, it is alleged that the six accused came there in aggressive manner. A -1 was armed with Bhala and others with sticks. Seeing them ploughman Mangru Soren ran away. The deceased also tried to run away but he was surrounded and according to the prosecution A -1 dealt severe blow on his head with the bhala as a result of which he fell down. It is contended in general that other accused also inflicted injuries with sticks. The deceased died on the spot and a report was given promptly: An inquest was held and the post -mortem was conducted by PW 1. He noticed two injuries - one on the right side occipital scalp and other on the left side occipital scalp. The other injuries were lacerated wound over left ring finger and abrasions. The doctor found that injury No. 1 was sufficient to cause the death in the ordinary course of nature. Having regard to the limited question, namely, the nature of the offence said to have been committed by the remaining appellant we have to see whether it can be said that they shared the common intention along with Mahender Singh, Accused No. 1 and, therefore, they are liable under Section 302 read with Section 34, IPC. Even according to the prosecution case it was a sudden affair and arose because of the land dispute. The remaining appellants were only armed with sticks and the nature of the injuries also would show that they did not use much force, therefore it cannot be said that they had common intention or common object to cause the death of the deceased. It is proved that Mahender Singh, A -1, by his individual act inflicted the fatal injuries on the deceased and has been rightly convicted under Section 302 simpliciter and his SLP was rejected. We are, therefore, of the view that the remaining appellants original A -2, A -4, A -5 and A -6 who are appellants before us can be convicted only under Section 325 read with 34, I.P.C. Accordingly, we set aside the conviction under Section 302 read with 34, I.P.C. and sentence for life imprisonment; instead we convict the remaining appellants, namely A -2, A -4, A -5 and A -6 under Sections 325 read with 34, I.P.C. and sentence each of them to undergo 7 years R.I. If they have served out the sentences they shall be set at free forthwith. Subject to the above modifications the appeal is partly allowed. Appeal partly allowed.