1976 INSC 0368
                                            Dashrath Singh and Others

                                                           Vs

                                             State of Madhya Pradesh

                                        Criminal Appeal No. 364 Of 1974

                          (P.N. Bhagwati, V.R. Krishna Iyer, Syed M. Fazal Ali JJ)

                                                      08.10.1976

                                                     JUDGMENT

BHAGWATI, J. ­

1. The appellants were tried before the Additional Sessions Judge, Sagar for the offence under
Section 302 of the Indian Penal Code. The charge against the appellants was that they intentionally
caused the death of one Mullu Singh inflicting injuries on him with kulhari and lathis. There were
three eyewitnesses to the incident, but out of them only two were examined, namely, Mangal Singh
and Kalloo Singh. Kalloo Singh was the son of the deceased while Mangal Singh was his nephew.
Mangal Singh turned hostile and was allowed to be cross-examined by the prosecution. Kalloo
Singh, however, supported the prosecution case and in clear terms implicated the appellants in the
commission of the offence. The prosecution also led the evidence of Phadali Singh, Jhurre Singh
and Sante Kotwar for the purpose of proving the dying declaration made by the deceased to the
effect that the appellants had assaulted him with kulhari and lathis. This dying declaration was made
by the deceased soon after the assault when these witnesses and others rushed to the scene of the
offence in order to find out what had happened. The learned Additional Sessions Judge on the
strength of the evidence of Kalloo Singh and the dying declaration made by the deceased convicted
the appellants of the offence under Section 302 of Indian Penal Code and sentenced each of them to
suffer life imprisonment. The appellants preferred an appeal against their conviction and sentence
but the appeal was dismissed by the High Court of Madhya Pradesh. Hence the present appeal by
special leave obtained from this Court.

2. We have carefully gone through the evidence of Kalloo Singh, Phadali Singh, Jhurre Singh and
Sante Kotwar and we do not see any reason to differ from the concurrent view taken by the learned
Additional Sessions Judge and the High Court in regard to the appreciation of the evidence of these
witnesses. It is clearly established by the evidence of these witnesses that the appellants assaulted
the deceased in pursuance of their common intention to cause his death. Appellant 1 was armed with
a kulhari and he inflicted serious injuries on the head of the deceased, as is clear from the evidence
of Dr. Khare, who performed the post-mortem examination. It is no doubt true that the other two
appellants were merely armed with lathis but the medical evidence shows that lathi blows were also
given on the head of the deceased and it is evidence that these two appellants shared common
intention with appellant 1 to cause the death of the deceased. Each of the appellants must, therefore,
be held to be guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code.

3. We accordingly convert the conviction of the appellants from one under Section 302 to that under
Section 302 read with Section 34 of the Indian Penal Code and maintain the sentence of life
imprisonment imposed on each of them. The appeal is disposed of accordingly.
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