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  REPORTABLE  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 349 OF 2007

BUDDHU SINGH ...APPELLANT VERSUS

STATE OF BIHAR (NOW JHARKHAND) ...RESPONDENT WITH

CRIMINAL APPEAL NO. 1116 OF 2007 LEDWA SINGH & ANR. ...APPELLANTS

VERSUS STATE OF BIHAR (NOW JHARKHAND) ...RESPONDENT

JUDGMENT   SIRPURKAR, J. 1. Criminal Appeal No. 349 of 2007  has been filed by  accused Buddhu Singh while Criminal Appeal No. 1116 of 2007  has  been  filed  by  his  father  Ledwa  Singh  and  brother  Balchand Singh. The trial court found them guilty under  Section  302  IPC  and  sentenced  each  one  of  them  to  imprisonment for life. The High Court also affirmed the  conviction and sentenced awarded by the trial court. 2. The prosecution case is that the deceased Sugendra  Singh was suspected to be practising witchcraft and he was  aggrieved  against the accused persons for not giving to  him the feast which he was professionally supposed to be  paid on account of  getting cured of accused Balchand Singh

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from some serious illness.  The incident seems to have  taken suddenly without there being any previous history to  it. 3 The allegation is that on 30.7.1995 at about 4 p.m.  deceased Surendra Singh was standing in front of house of  PW5 Nagru Kharia when accused Balchand Singh pushed him  down and accused  Buddhu Singh is said to have then dealt  an  axe  blow  which  landed  on  the  head  of  the  deceased.  Accused Ledwa Singh is, thereafter, said to have started  kicking the deceased.  It is reported that on account of  that blow, Sugendra Singh  was seriously injured and died  in the hospital. 4. The prosecution pressed in service the evidence of  three eye witnesses namely; PW 2 Feku Kharia, PW6 – Karia  Singh  and PW7 Tijo Devi.  PWs 2 and 6 turned hostile and  refused to support the prosecution.  PW7, being the mother  of the deceased, however, supported the prosecution case.  According to her, she saw the accused Balchand Singh and  Ledwa  Singh  grappling  with  the  deceased  while  accused  Buddhu  Singh  giving  an  axe  blow  on  the  head  of  the  deceased. 5. We have  gone through the evidence of the witnesses  very carefully. 6. Mr. Ajit Pandey, learned counsel appearing for the  accused persons contended that firstly this was a case of

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single blow and the blow could not have been intended to be  given on the head though it did land on the head.  Mr.  Pandey further argued that if the intention was to commit  the murder, then the accused persons, more particularly  accused  Buddhu  Singh  would  have  repeated  the  assault  which he actually and admittedly did not repeat. 7. Mr. Pandey further contended that once the injury  was unintended, the offence could be converted into Section  304 Part II IPC from Section 302 IPC because the accused  ought to   have the knowledge that a single assault by an  axe could result into the death of the deceased. 8. Mr. Manish Mohan, learned counsel appearing for the  State supported the judgment and contended that the injury  was serious enough and was on a very vital part i.e. head  and resulted in the fracture of frontal bone and the death  was almost  instantaneous, though in the hospital. 9. Considering  the  overall  material,  we  are  of  the  view that there is hardly anything on record which can be  said against the accused  Ledwa Singh and Balchand Singh  though  the  common  intention  on  their  part  could  be  attributed since they had done the over act of grappling  with and pinning  down the deceased.   Now, seeing his  father and brother had been grappling with  the deceased,  the accused Buddhu Singh dealt an axe blow which could not

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be said to be intended towards the head.  It could have  

landed anywhere. However, it landed on the head of the  deceased.  Therefore, the element of intention is ruled  out.  Again the  defence raised on behalf of the accused  that there could not have been the intention   to commit  the  murder  of the deceased  is justified by the fact that  the accused Buddhu Singh did not repeat the assault.  Under  the circumstances, we feel that the prosecution has been  able to establish the guilt of the accused  persons under  Section 304 Part II I.P.C.  10.  We, accordingly, modify the finding of the High  Court  and  convert  the  conviction  of  the  accused   from  Section 302 IPC to Section  304 Part II IPC and sentence  each of them to the period already undergone.  Accused  Buddhu Singh is stated to be in jail for the last five  years whereas other accused persons namely; Ledwa Sngh and  Balchand Singh are stated to be  in jail for the last ten  years. They be released from the jail forthwith unless they  are  required in any other case. 11.  The appeals are partially allowed.     

......................J.   [ V.S. SIRPURKAR ]

......................J.

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[ T.S. THAKUR ] NEW DELHI APRIL 28, 2011.