STATE OF U.P.versusLAKHAN AND ORS.

                            STATE OF U.P.                                    A
                                 v.
                          LAKHAN AND ORS.

                            APRIL 11, 1997

            [K. RAMASWAMY AND D.P. WADHWA, JJ.]                              B

     Penal Code, 1860 :

      S. 302 r/w. S.34/S. 304 Part ll-Murde1~Accused convicted and sen-
tenced to /ife impliso111ne11t-High Court holding that the accused had 110
common intention to kill the deceased-Converting the offence from murder C
to culpable homicide not amounting to 1111trder--On appeal held, while the
deceased and witnesses were 1111an11ed all of a sudden the accused anned
with lathis attacked the deceased and caused injulies 011 the head and vital
parts of the body-The mere fact that extensive damage has not been caused
to the deceased does 1101 establish that the offe11ce is not 011e pu11ishable D
under S. 302-High Court committed ma11ifest en'Or i11 co11verti11g the offence
from murder to culpable homicide not amounting to murder.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 461-462 of 1997.
                                                                             E
     From the Judgment and Order dated 18.2.91 of the Allahabad High
Court in Crl.A. Nos. 1026 and 1122 of 1978.

      Prashant Kumar and A.S. Pundir for the Appellant.

      Manoj Prasad for the Respondents. · ·                                  F
      The following Order of the Co~rt was delivered :

      Leave granted.

      These appeals by special leave arise from the judgment of the          G
Division Bench of the Allahabad High Court, dated February 18, 1991 in
Criminal Appeal Nos. 1026 and 1121 of 1978.

      The prosecution case is that on March 6, 1977, while the deceased
Sukhuwa and his sons and his younger brother were returning from the
Hali festival and reached the house of the accused, suddenly all the three   H
                                   865
    866                  SUPREME COURT REPORTS                  [1997) 3 S.C.R.

A accused armed with lathis attacked the deceased on the head and other
    parts of the body. When the sons and brother of the deceased raised alarm,
    all of them ran away. The deceased had fallen on the ground. He was taken
    on a cot to his house. Thereafter, he breathed his last. F.l.R. came to be
    filed on the same day at about 10.30 p.m. Investigation started and the
    doctor M.M.S.A. Khan, who conducted the post-mortem on March 8, 1977,
B   opined that the injuries were sufficient to cause death in the ordinary
    course of nature. The Autopsy Surgeon found the following ante-mortem
    lllJUfleS:


             "l. Lacerated wound 2" x l" x bona deep present over the left side
c            of forehead. Left eye-bro and outer of left eye bones underneath.

             2. Lacerated wound 1/4" x 1/4" x bone deep present over left
             zygmatic bone bone underneath fractured.

             3. Abraded contusion 2" x 1" present l" below the injury No. 1.
D            4. Lacerated wound 2" x 1/4" bone deep present over the middle
             of the chin, bone, underneath fracture.

             5. Abraided contusion 1" x 1-1/4" present over the posterior aspect
             of lower third of right forearm, bones underneath fractured."
E          The question, therefore, is whether all of them shared common
    intention to cause death of the deceased or the offence was one under
    section 304, Part II as found by the High Court? The Sessions Judge after
    recording the evidence and on the nature of the evidence concluded that
    the offence is one of murder punishable under section 302 I.P.C. and
F   accordingly the respondents came to be convicted under section 302 read
    with Section 34 I.P.C. and were sentenced to undergo imprisonment for
    life. On appeal, the High Court while accepting the evidence of the direct
    witnesses, the sons and brother of the deceased, PWs. 1 to 3, and accept-
    ing the evidence of the doctor came to the conclusion that the prosecution
G   has proved the case beyond reasonable doubt, but suddenly jumped to the
    conclusion that the accused have no intention to kill the deceased.

        Learned amicus curiae for the respondent has contended that the
  accused had no motive and intention to kill the deceased. We find no force
  in the contention. The motive is locked up in the heart of the accused and
H therefore, it is to be adjudged from the circumstances available on record.
                           STATEv. LAKHAN                              867

Whether the accused have intended cause death also is an inferential fact     A
drawn from the circumstances. It is seen, as accepted by the High Court
at page 20 of the paper book, that the deceased and witnesses were
unarmed and when they were returning from the Hali festival and reached
the stated place, all of a sudden the accused in concert armed with lathis
attacked the deceased and caused injuries on the head and other vital parts
of the body, as noted above. The mere fact that extensive damage has not
                                                                              B
been caused to the deceased does not establish that the offence is not one
of murder punishable under section 302. All the accused armed with lathies
lay in weight. The High Court, therefore, committed manifest error in
converting the offence from murder to culpable homicide not amounting
to murder punishable under section 302 Part II, l.P .C.                       c
      The appeals are accordingly allowed. The judgment of the High
Court converting the offence stands set aside. The accused stand convicted
for an offence under section 302 read with Section 34 l.P.C. and they are
sentenced to undergo imprisonment for life. They shall be directed to be
taken into custody forthwith to undergo the sentence.                         D

G.N.                                                      Appeal allowed.