RAMU Vs. STATE OF U P

JUDGEMENT

(1.) The appellant has preferred this appeal against the judgment of the High Court of Allahabad in Criminal Appeal No. 678 of 1980 wherein the High Court while partly allowing the appeal of 5 other appellants by altering their conviction from Section 302 read with Section 149 to one under Section 324, I. P. C. confirmed the conviction and sentence imposed on this appellant for an offence punishable under Section 302 read with Section 149 as also for offences punishable under Sections 148 and 147, I. P. C. Brief facts necessary for the disposal of this appeal are as follows :

(2.) The other accused persons being satisfied with the substantial benefit they obtained under the High Court judgment have not preferred any appeal while the appellant who is convicted for an offence punishable under Section 304, I. P. C. alone has preferred this appeal. We have heard Mr. Jaspal Singh, learned senior counsel for the appellant and Mr. Garvesh Kabra, learned counsel for the respondent-State and perused the records. From the evidence of PW-1 who is the injured witness it is clear that she and her son deceased Satti were attacked by the accused persons consequent to which Satti died. It is also clear from the evidence led by the prosecution that Satti died due to an incised wound suffered on his abdomen which could have been caused by a sharp-edged weapon like bhala carried by the appellant. It is the prosecution case that the appellant alone carried such a weapon and from the medical evidence also it is clear that the cause of death was due to shock and haemorrhage consequent to the incised wound suffered on the abdomen of the deceased. But the question for our consideration is what is the nature of offence committed by the appellant in this case. The trial Court came to the conclusion that the offence committed by the appellant was one punishable under Section 302 read with Section 149 while the High Court came to the conclusion that the said offence cannot be one punishable under Section 302 because the said offence could not be categorised as a culpable homicide amounting to murder hence held the said offence would fall under Section 304, I. P. C. While coming to this conclusion the High Court held :

(3.) Having examined the evidence on record we are in agreement with the High Court that the appellant did not have any motive whatsoever to cause any fatal injury to the deceased. We also agree with the High Court that the injury in question was caused during a melee in which 6 persons took part therefore in our opinion on the facts and circumstances of this case, the act of the appellant in causing injury to the deceased which led to his death, cannot be the one which could be construed even as an act of culpable homicide not amounting to murder. Therefore, to that extent in our opinion the High Court felt in error in holding the appellant guilty for an offence under Section 304, I. P. C. In our considered opinion on the facts and circumstances of this case the act of the appellant is one of causing grievous hurt with a deadly weapon which is punishable under Section 326, I. P. C. Noticing the fact that the incident in question has occurred as far back as 1978 and the appellant had no enmity against the deceased nor any motive to cause a fatal injury, we think the ends of justice would be met if the appellant's conviction is altered to one under Section 326, I. P. C. and a sentence of 3 years' R. I. is awarded for the said offence.