Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1540 OF 2017
Lakshmi Chand and another ....Appellant(s)
versus
State of Uttar Pradesh ...Respondent(s)
JUDGMENT
NAVIN SINHA, J.
The two appellants stand convicted under Sections
323 r/w 34, 324 r/w 34 and 307 r/w 34 IPC to undergo
one year, two years and eight years of rigorous
imprisonment respectively. Appellant No.2 has been
additionally convicted under Section 304 Part II r/w 34 to
undergo rigorous imprisonment for eight years and fine
with a default stipulation.
2. The genesis of the assault lies in an occurrence in the
Signature Not Verified
morning of 15.04.1980. The bullocks of the appellants
Digitally signed by
VINOD LAKHINA
Date: 2018.08.24
12:50:38 IST
Reason:
strayed into the neighbouring compound of the deceased,
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Prem Lal who drove them out with a lathi, leading to an
altercation with the accused Kashmira, since deceased.
The latter went back to his house, and returned
immediately armed with a lathi, accompanied by the
appellants, who were also armed with an iron rod and a
knife respectively. They together assaulted the deceased
Prem Lal. PW1, Banarasi, the informant, and PW2,
Omveer, an injured witness and another injured witness
Rajendra Singh intervened by picking up a lathi from the
ground and retaliated in selfdefence. The appellants then
scampered away from the place of occurrence. The fourth
accused was held to be a juvenile.
3. The postmortem of the deceased done by PW7, Dr.
B.K. Mishra, revealed three abrasions on the abdomen,
back and shoulder apart from two incised wounds, muscle
deep, on the scapula and the left thigh, leading to cut of
the femoral artery. Death was attributed to the last injury.
The abrasions were opined to have been caused by a lathi.
PW3 and Rajendra Singh sustained simple injuries, as
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opined by PW6, Dr. Ajeet Singh, attributable to a knife and
iron rod.
4. The High Court, in appeal, after consideration of the
evidence, concluded that common intention could not be
inferred in the facts of the case. The appellants were held
liable for their individual acts. The conviction of the
appellants under Section 302 r/w 34 IPC was set aside.
Further, holding that the assault on the deceased had
taken place on the spur of the moment, preceded by an
altercation, without any premeditation, the conviction of
appellant no.2 was altered to one under Section 304 Part II
r/w 34 IPC. The rest of conviction was sustained relying
on the injury reports of PW2 and Rajendra Singh.
5. Shri S.R. Singh, learned Senior Counsel appearing for
the appellants, submitted that from the injuries suffered by
them it is manifest that they had acted in selfdefence and
were not the aggressors. The High Court has concluded
the absence of any common intention leaving each
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appellant answerable for his own acts. If that be so, and
the injuries caused to PW2 and Rajendra Singh have been
found to be simple in nature, their conviction under
Section 307 r/w 34 IPC is not sustainable. It was lastly
submitted that there was no intention to cause death,
much less knowledge can be attributed from the nature of
the assault. The fortuitous cutting of the femoral artery
cannot impute either intention or knowledge. Had the
intention been to cause death, the appellants would not
have run away without accomplishing their task, and the
assault would have been made with more severity on vital
parts of the body. The conviction of appellant no.2 under
Section 304 Part II IPC is therefore also not sustainable.
The offence deserves to be reduced and/or alternatively the
sentence was excessive in the facts of the case arising out
of a dispute between neighbours over cattle that had
strayed. Reliance was placed on
Darshan Singh and
others vs. State of Punjab , 2009 (16) SCC 290 and
, 2016
Maqsood and others vs. State of Uttar Pradesh
(15) SCC 748.
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6. Learned counsel for the State opposing the appeals
submitted that the conviction of the appellants called for
no interference. Knowledge under Section 304 Part II IPC,
that death was likely to be caused can easily be attributed
to appellant no.2 from the nature of the assault made with
severity leading to the femoral artery being cut and which
was the cause of death. The injured had suffered assault
on the head also, a sensitive part of the human body and
therefore the conviction under Section 307 r/w 34 IPC also
called for no interference.
7. We have considered the submissions on behalf of the
parties. The occurrence undoubtedly had taken place at
the spur of the moment without premeditation. It cannot
be said that the appellants had any common intention to
kill or knowledge that death was likely to ensue. The
appellants only intended to vent their ire against their
neighbour for having assaulted their bullocks. Having been
better equipped with an iron rod and a knife, there was no
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occasion for them to scamper away when confronted by the
others especially when PW1 was an old man aged about
61 years. If there existed no common intention each
appellant was liable for his own individual acts as observed
in (supra).
Darshan Singh
8. PW6, Dr. Ajeet Singh has deposed that the injuries
on PW2 and Rajendra were simple in nature. There is no
consideration of the nature of injuries in the conviction
under Section 307 r/w 34. The conviction of the appellants
to that extent is held to be unsustainable and is set aside.
9. The deceased is stated to have succumbed to the
injury on the thigh leading to the cut of the femoral artery.
The injury is attributable to appellant no. 2. The absence
of any common intention makes him individually
answerable. His conviction under Section 304 Part II IPC
therefore calls for no interference. But considering that the
occurrence took place at the spur of the moment, the
assault was not made on a vital part of the body, that the
assailant ran away upon being challenged, the genesis of
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the assault lay in a dispute between neighbours with
regard to strayed cattle, and that the occurrence had taken
place long ago in 1980, we are satisfied to reduce the
sentence of appellant no. 2 to a period of two years relying
on (supra).
Maqsood
10. Resultantly, the conviction of the appellants under
Sections 323 r/w 34 and 324 r/w 34 is not interfered with.
The sentence of appellant no.2 under Section 304 Part II
I.P.C. is altered from eight years to two years.
11. The appeal is allowed only to the extent indicated
above.
…………...................J.
[Navin Sinha]
…………...................J.
[K.M. Joseph]
NEW DELHI
AUGUST 24, 2018
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