SHRI KISHUN & ORS. versus STATE OF U.P.

Citation: [1973] 1 S.C.R. 734 · Decided: 28-07-1972 · Supreme Court of India · Bench: I.D. DUA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 by-
F 
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 Khali-
han, 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 Sacla-
phal 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, accost-
ed 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 pu

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