LexSTATE OF H.P. versus NAZAR SINGH AND ANR.
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[2009] 7 S.C.R. 1117 1 STATE OF H.P. A V. NAZAR SINGH AND ANR. Criminal Appeal No. 1403 of 2003 MAY 6, 2009 ~ [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] .· Penal Code, 1860 - s.304 Part II r/w s.34 - Culpable "" homicide not amounting to murder - Common intention - t Death due to armed assault - Four accused viz. 'S', 'J' and the two respondents - A/legation that 'S' inflicted two injuries c on deceased's head with a 'gandasi' whereas the other accused inflicted 'lathi' blows - Held: On facts, there was no intention on part of any accused to cause death - Common intention, if any, assuming there was one, was to cause simple hurt as all ten injuries were found to be simple except one injury which D the deceased suffered on his forearm - If common intention was formed merely to cause simple hurt, only accused 'S' was guilty of offence under s.304 Part II and not the respondents. CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E No. 1403 of 2003 From the Judgment and Order dated 03.06.2002 of the Hon'ble High Court of Himachal Pradesh at Shimla in Criminal - ... Appeal No. 41 of 1994 Naresh K. Sharma, for the Appellant. F l.B. Gaur, S.S. Nehra, Neeraj Dutt Gaur, for the Respondent. The Judgment of the Court was delivered by S.B. SINHA, J. G 1. The State is before us aggrieved by and dissatisfied with a judgment of acquittal passed by a Division Bench of the High Court of Himachal Pradesh, Shimla in Criminal Appeal No. 41of1994. 1117 H 1118 SUPREME COURT REPORTS [2009] 7 S.C.R. A 2. Sarwan Singh (since deceased), Jagtar Singh (since deceased) as well as Nazar Singh and Baldev Singh, respondents herein were prosecuted for commission of an offence under Section 302 read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code (for short, B "the Code") for causing death of one Lamber Singh and simple hurt to one Avtar Singh. 3. The occurrence took place at about 9.30 p.m. on 30.03.1993 in the field of the deceased Lamber Singh. Lamber Singh had gone to tie his dog therein. PW-1 Bakshish Singh, C brother of the deceased, after some time heard him shouting whereupon he ran towards the field and found that Sarwan Singh armed with gandasi and others armed with lathis had been assaulting the deceased. Sarwan Singh is said to have inflicted two injuries with a gandasi on his head whereas the others were D said to have inflicted lathi blows on him. 4. Avtar Singh alias Bittu (PW-2) also reached there. Both these witnesses attempted to save him but were attacked by them. Avtar Singh allegedly was hit by Sarwan Singh with the handle of broken gandasi on his right arm. Further, the E prosecution case is that all the convicts went towards cattle shed using abusive language threatening to kill them. The motive for the said incident is said to be a quarrel which had taken place 20 days prior thereto at the time of solemnization of the marriage F of two nieces of PW-1. ~ - 5. Lamber Singh was brought to a hospital in an injured condition. His medical history was recorded. He put his left thumb impression. He, however, did not name any person responsible for inflicting those injuries on him. He died at about G 3.40 a.m. H 6. All the accused persons were arrested on 1.04.1993. They were taken into custody on 1.04.1993. +9They were, however, for reasons best known to the investigating officer shown to have been formally arrested on 2.04.1993. STATE OF H.P. V. NAZAR SINGH AND ANR. 1119 [S.B. SINHA, J.] 7. Relying on or on the basis of the evidence of the A aforementioned Avtar Singh, who is said to be an injured witness, the learned Trial Judge opined that the accused are guilty of commission of an offence under Section 304 Part II of the Indian Penal Code read with Section 34 thereof. They were sentenced .to undergo seven years' rigorous imprisonment. A B fine of Rs. 5000/- was also imposed on them. They were also sentenced to undergo rigorous imprisonment for six months each under Section 323 read with Section 34 of the Indian Penal Code. 8. Three appeals were preferred thereagainst, viz., C ' (i) Respondents preferred Criminal Appeal No. 41 of 1994 against their conviction and sentence imposed by the Trial Court. · (ii) The State preferred an appeal for enhancement of D their sentence which was marked as Criminal Appeal No. 270 of 1994. (iii) The State filed another appeal being Criminal Appeal No. 92 of 199
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