LexMANGU KHAN AND ORS. versus STATE OF RAJASTHAN
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A B MANGU KHAN AND ORS. v. ST A TE OF RAJAS THAN FEBRUARY 24, 2005 . [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.] Penal Code, 1860-Sections 302 read with section 34, section 148, 3021 149 and 3231149-Murder of two persons and injury caused to other over a C dispute-Conviction under sections 148, 3021149 and 3231149-High Court convicting under Section 302 !PC read with Section 34 and under Section 32 3134 !PC-Justification of-Held: Evidence showing formation of common intention to commit offence on the spot and the manner in which complainant party was attacked and were done to death, though not possible to identify and ascribe particular injury to particular accused-Hence, conviction under D Section 302 !PC read with Section 34 justified-Also no discrepancies and inconsistencies in the evidence-Evidence Act, 1872. Constitution of India, 1950-Artic/e 136-Re-appreciation of evidence by Supreme Court-Scope of-Held: When courts below concurrently accept E the evidence to sustain charges, meticulous analysis of evidence cannot be gone into. According to the prosecution, appellants attacked informant, his father and brother with weapons on account of a dispute over construction of a bund. Father and his son died on the spot and the brother, the F complainant sustained injuries. Complainant lodged FIR. Appellants were convicted and sentenced under section 148, section 302/149 and section 323/149 IPC. High Court convicted and sentenced the appellants under section 302 IPC read with section 34 IPC and also under section 323/34 IPC. Hence, the present appeals. G Appellant - accused contended that since the Sessions Court had acquitted the appellants of the charge under Section 302, High Court could not convict ·them under Section 302 r/w SectiQn 34; that even if they were guilty they should be convicted only under Section 304 Part I and not under Section 302; that the evidence could not have been accepted at all H for convicting the appellants since there are some discrepancies and 368 MANGU KHAN v. STATE OF RAJASTHAN 369 inconsistencies in the e\•idence; that the injuries sustained by appellant Nos. A I and 2 had not been explained by prosecution; that High Court erred in not appreciating that the ocular evidence was inconsistent with the medical evidence; and that the right of private defence was available to the accused both in respect of their property and their person. Dismissing the appeals, the Court HELD : l. Trial Court and High Court having concurrently accepted the evidence to sustain the charge, meticulous analysis of the evidence cannot be gone into. (372-D) B Harshadsingh Pahelvansingh Thakore v. State of Gujarat, I 1976) 4 SCC C 640, referred to. 2.1. There is no doubt that father and his son were done to death by inflicting serious injuries to the vital parts of their bodies, namely, the skull. Appellants had a common intention to cause such injuries as they were D waiting with arms, early in the morning, in the field. The manner in which the complainant party was attacked and two of them were done to death is borne out by the evidence and the High Court's findings on this issue are justified. From the evidence, it may ~ot be possible to pin point the person who dealt the fatal blow to each of the deceased and as such the appellants were all acquitted of the charge under Section 302 simpliciter. E But when the evidence indicates that the three accused had repeatedly given blow with lathi, farsi and tanchia, and it is not possible to identify and ascribe a particular injury to a particular accused, conviction of the accused on the charge under Section 302 with the aid of Section 34 IPC is justified. Furthermore, the situation was not of a free fight and the F evidence on record indicates that the intention was to ambush, attack and kill the persons, who were coming to protest about the unlawful construction on the land. Therefore, the situation is covered by Section 302 and not by Section 304. (377-G-H; 378-A-C; 379-E) B.M. Dana and Anr. v. State of Bombay, AIR (1960) SC 289; G Harshadsingh Pahelvansingh Thakore v. The State of Gujarat, (1976) 4 SCC 640; Sukh Ram v. State of U.P. AIR (1974) SC 323 and Pipal Singh v. State of Punjab, (20011 2 SCC 292, referred to. 2.2. It cannot be said that in every case there is an inexorable burden upon the prosecution to explain the injuries on the body of the accused H 370 SUPREME COURT REPORTS [200
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