# SHRI KISHUN & ORS v. STATE OF U.P

- **Citation:** [1973] 1 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1972-07-28
- **Case number:** CRIMINAL APPELATE JURISDICTION : Criminal A_ppeal No. 273 of 1968
- **Bench:** I. D. Dua, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-kishun-ors-v-state-of-u-p-5709
- **Pages:** 4

## Headnote

Indian PetU1l Code ss. 302, 325, 34--Evidence not establishing which
of four accused gave fatal blow-High Coui·t finding that common inlen·
tion was to cause grievous hurt-Accused can be convict.ed only undeJ"
s. 325/35 l.P.C.
A
B
The. appellants were convicted by the trial -Court and the High ()Jurt
inter alia for the offence of murder undeP s. 302 read with; s. 34 of the
C
Indian Penal Code.
In appeal to this Court it was contended that the
appellants were not guilty, on the facts of the case, of murder or culpable
homicide but of a lesser rffence.
HELD : Apart from the injury on the head of the deceased, which
proved fatal, the other injuries were not of a serious nature. There was
no previous enm;ty between the
parties and' the quarrel
arose over a
trifling incident. In the circumstances the High Court was justified in· its
D
finding that the common intention of the four accused was only to cause
grievous hurt. The fact that one of them exceeded the bound and gave
a fatal blow on the head of the deceased would make him personally
liable f·.'.>f the fat;a.1. injury, but so far as the other three we're concerned,
they could be held liable only for t~e injuries caused in furtherance of
the common intention ::nd. not for the fatal injury. As it was not possible
on the material on record ~J find out a'S to whic'1 one of the accused
gave the fatal blow, there was no escape from the conclusion that each
E
one of the four accused appellants could only be guilty of the o!Ience
under section 325 read with section 34 Indian Penal Code. [736H-737El
CRIMINAL APPELATE JURISDICTION : Criminal A_ppeal No.
273 of 1968.
Appeal by special leave from the judgment and order dated
December 15, 1967 of the Allahabad High Court in Criminal
Appeal No. 478of 1965.
R. B. Datar, for •the appellants
0. P. Rana, for the respondent.

## Text

734
SHRI KISHUN & ORS.
v.
STATE OF U.P.
July 28, 1972
[I. D. DUA AND H. R. KHANNA, JJ.J
Indian PetU1l Code ss. 302, 325, 34--Evidence not establishing which
of four accused gave fatal blow-High Coui·t finding that common inlen·
tion was to cause grievous hurt-Accused can be convict.ed only undeJ"
s. 325/35 l.P.C.
A
B
The. appellants were convicted by the trial -Court and the High ()Jurt
inter alia for the offence of murder undeP s. 302 read with; s. 34 of the
C
Indian Penal Code.
In appeal to this Court it was contended that the
appellants were not guilty, on the facts of the case, of murder or culpable
homicide but of a lesser rffence.
HELD : Apart from the injury on the head of the deceased, which
proved fatal, the other injuries were not of a serious nature. There was
no previous enm;ty between the
parties and' the quarrel
arose over a
trifling incident. In the circumstances the High Court was justified in· its
D
finding that the common intention of the four accused was only to cause
grievous hurt. The fact that one of them exceeded the bound and gave
a fatal blow on the head of the deceased would make him personally
liable f·.'.>f the fat;a.1. injury, but so far as the other three we're concerned,
they could be held liable only for t~e injuries caused in furtherance of
the common intention ::nd. not for the fatal injury. As it was not possible
on the material on record ~J find out a'S to whic'1 one of the accused
gave the fatal blow, there was no escape from the conclusion that each
E
one of the four accused appellants could only be guilty of the o!Ience
under section 325 read with section 34 Indian Penal Code. [736H-737El
CRIMINAL APPELATE JURISDICTION : Criminal A_ppeal No.
273 of 1968.
Appeal by special leave from the judgment and order dated
December 15, 1967 of the Allahabad High Court in Criminal
Appeal No. 478of 1965.
R. B. Datar, for •the appellants
0. P. Rana, for the respondent.
The Judgment of the Court was delivered byF
G
Khanna, J. Shri Kishun; Ram Bali, Jai Shri and J attan were
convicted l:!y learned Sessions Jud_ge Ballia under section
302
read with section 34 Ii:idian Penal Code for causing the. death
of Seru ( a_ged 45) and under seCl!ion 323 read with section 34
Indian Penal Code for causing injuries to Sadaphal (PW 2), u
and were sentenced to undergo imprisonment for life en the
former count and rigorous imprisomnent for a period of one year
on the latter count. The sentences in the case of each accused
I
l
~,.
·'
A
B
c
D
E
F
G
H
KISHUN V. U.P. STATE (KHANNA, J.)
735
were ordered to run concurrently.
On appeal the High Court
cf Allahabad affirmed the order of the trial court.
The fou'r
accused thereafter came •to this Court by special leave.
The
leave was, however, limited to the question whether the offence
disclosed was murder or culpable homicide not·
amountin~ to
murder or some lesser offence.
·
Ram Bali and Jattan accused are brothers.
Likewise, Shri
Kishun and Jai Shri accused are brothers and are the nephew of
Ram Bali and Jattan. The prosecution case is that on February
13, 1964 about half an hour before sunset Bhagwati (PW 3).
who is aged about 11, and his sister's son Kolahal were playing
guchhi (a game played with paisa) in the Khalihan of
Shri
Kishun accused.
Nandlal, son of Shri Kishun, came there and
protested against the playing of the game of guchhi in his Khalihan, Nandlal also threw away in a neighbouring field the paisa
with which the game was being played.
A scuffle then took
place between Nandlal and Bhagwati. Seru deceased and Saclaphal PW on coming to know of the aforesaid scuffle went to
Shri Kishun's Khalihan and stopped ·the scuffle.
Nandlal then
began to weep and went to his hous.e.
Seru, Sadaphal, Bhagwati
and Kolahal made a search for the paisa which had been
thrown away by Nandlal but could not find it. They then left for
their houses.
When they reacijed in front of the house of one
Surai Mal, the four accused, who were armed with lathis, accosted them.
The. ac~used protested against the beating given to
Shri Kishun's son (Nandlal) and,at 1he same time, belaboured
Seru and S11c!aphal.
Seru on receipt of injuries fell down on th·~
ground and became unconscious.
On alarm being raised. Sada
Shiva (PW 4) and Bajaram (PW 5) reached there, whereupon
the accused run away.
Sadaphal PW carried Seru on a cot to
police station Deoria.
On the way Seru was put in a riksha.
The party then went to police station Beoria where first information report was lodged by Sadaphal PW at 7 .05 p.m. the same
evening. Seru and Sadaphal were rthen directed to go to the
hospital for medical examination.
Seru, however, died on 1he
way.
Post mortem examination on the dead body of Seru was
perform~d by Dr. C. D. Agarwal on February 14, 1964. The
following five injuries were found on the body of Seru :
"1. Contused wound l"X-!" bonli\ on top of head
with swelling on •the forehead.
2. Contused wound i" X -!" bone, front of right
leg middle.
3. Interrupted abraison 2" X i" front of right leg.
4. Ecchymosis on right upper and lower eye lid -!-"
Xi".
736
SUPREME COURT REPORTS
[1'>73J l s.c.R.
5. Swelling on- left temporal region 2!" X 2"
Death was due to sho.ck and haemorrhage as a result of the !read
injury. Sadaphal PW on examination by Dr. Nagrath was found
to have seven simple injuries caused wi'th blunt weapon like· lathi.
At the trial the plea of the appellants was that a she buffalo
belonging to Seru had trespassed into the field of Shri Kishun
accused. Jattan accused caught hold of the she buffalo and was
talcing it to the cattle pond when Seru and Sadaphal made an
effort to snatch the she buffalo. They also assaulted Jattan with
lathis. On alarm having been raised by Jattan, Jai Shri reached
there and both of them used their lathis in self-defence. Evidence
was Jed in defence to show that J a1tan accused on being examined
on February 18, 1964 was found to have two injuries on his
person.
The High Court in maintaining the conviction of the accuxd
appellants relied upon the evidence of four eye witnesses, Sadaphal (PW 2), Bhagwa1i (PW 3), Sada Shiva (PW 4)
and
Rajaram (PW 5). It was also observed iJy the High Court that
the prosecutio11 evidence did not indicate as to which
of the
accused appellants had given the fatal blow to Seru.
Although
the High Court took note of the fact that there did not exist
any previous enmity between, the accused on the one h~nd and
Seru deceased on the other, the argument that ~. accused were
not ~uilty of the offence under section 302 read wrth section 34
Indian Penal Code did nGt find favour with the High Court. In
the result, the appeal was dismissed.
In this Court Mr. Datar on behalf of the accused-appellants
has argued tha:t the case against the accused falls under section
325 read with section 34 Indian Penal Code and not under section 302 read with section 34 Indian Penal Code.
As against
that }.fr. Rana has supported the judgment of •the Hig)l Court.
In our opinion, the submission made by Mr. Datar is well-founded.
There was no previous enmity betw~en the accused-appellants
on the one hand and Seru deceased and Sadaphal PW on the
other. The occurrence was the off-shoot of a rifling incident in
the mlture of a scuffle between two urchins.
Nandlal, it appears
then went weeping and told his father that he had been beaten
by Seru and Sadaphal. Thefour accused 1theteupon protested to
Sero and Sadaphal for the beating given to Nandlal and· also belaboured them with Iathis.
Five injuries were caused to Seru.
Apart from the one injury on the head, which proved fatal, the
other injuries were not of a very serious nature.
Sadaphal had
seven injuries all of which were simple in nature.
The prosecution evidence, as observed by the High Court, does not indicate
B
c
D
E
F
G
H
KISHUN V. U.P, STATE (KHANNA,/.)
737
A
as to which one of the accused-appellants inflicted the fat!ll blow
on the head of Seru.
As such, none of the accused can be-held
to be personally liable for the fatal injury. The liability can only
be vicarious under section 34 of the Ihdian Penal Code and, as
sucq, we have to fi11d out as to what was the common intention
of the accused in furtherance of which they caused injuries to Seru
B
and Sadaphal. In this context we find that the Hign Court has
arrived at the following finding :
c
D
E
F
"There could, therefore, be no doubt that the common intention of the appellants was to give a severe
beating to Seru and Sadaphal."
The above finding as well as tl:e broad circumstances of the case
go to show that the common intention of the accused was to cause
grievous injury to the victim. The fact that one of them exceeded
the bou;,J and gave a fatal blo-.v on the head of the deceased
would make him personally liable for the fatal injury, but so far
as the other three are concerned, they can be held liable only for
the injuries which were caused in furtherance of the common intention and not for the fatal injury.
As it is not possible on the
material on record to find out as to which one of the accused .gave
the fataf blow, there is no escape from the conclusion that each
one of the four accused can only be guilty of the offenc.e under
section 325 read with section 34
Indian Penal
Code.
We
accordingly alter the conviction of each of the accused-appellants
from under sedtion 302 read with section 34 Indian Penal 'Code
to that under s. 325 read with s. 34 Indian Penal Code.
Each of
them is sentenc.ed to undergo rigorous imprisonment for a period
of five years on that count.
The sentence of rigorous imprison·
ment !or a period of or.e year awarded to each of the accused
under section 323 read with section 34 Indian Penal Code would
run concurrently with th·~ above sentence.
The appeal is allowed
to that extent.
G.C.
Appeal allowed.