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

morning of 15.04.1980.   The  bullocks of the appellants

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

Maqsood and others vs. State of Uttar Pradesh, 2016

(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 Darshan Singh (supra).

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 Maqsood (supra).

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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