1983 INSC 0124
                                              Surjit Singh and Others

                                                           Vs

                                                   State of Punjab

                                        Criminal Appeal No. 238 of 1983

                                      (Syed M. Fazal Ali, M. P. Thakkr JJ)

                                                      27.04.1983

                                                     JUDGMENT

1. Appellant, Surjit Singh, has been convicted under Section 303, IPC and the other two appellants
have been convicted under Sections 302/34, IPC for having committed the murder of the deceased
Dhan Kaur. The facts of the case are detailed in the judgment of the High Court it is not necessary
to repeat the same. According to the prosecution appellant Surjit Singh was undergoing a sentence
of imprisonment for life having committed the murder of his own mother resulting from a land
dispute when this offence was committed.

2. On July 6, 1979 he was released on parole on personal grounds and within about a month from
that date, that is to say, on August 8, 1979 the present occurrence took place in the consequence of
which Dhan Kaur was done to death. The accused pleaded innocence but the prosecution case has
been established and Mr Mulla with his usual fairness did not press this appeal on facts and confined
his argument only to the question of sentence upon the conviction being altered to one under Section
302, IPC. The Sessions Judge and the High Court had convicted the appellant and sentenced him to
death under Section 303, IPC which has now been struck down and held to be void being violative
of Article 14 and 21 of the Constitution of India. In these circumstances, his conviction under
Section 303, IPC cannot stand, and must be altered to one under Section 302, IPC.

3. The next question that arises is what sentence should be awarded to him for the present
occurrence. The counsel for the State submitted that as the appellant had committed the offence
within a month of his having been released on parole he did not deserve mercy and he should be
given death sentence even under Section 302, IPC. Although, the fact that he was released on parole
only a month before the present occurrence, is admitted, we are satisfied that in the facts and
circumstances of this case the extreme penalty of death is not called for. To begin with, the father of
the appellant had executed a power of attorney which was sought to be assailed by his two brothers
living separately, and this was the immediate cause of the assault. Secondly, it is the admitted case
of the prosecution that the appellant assaulted the deceased with the blunt side of the gandasa.
Having regard to these circumstances, we do not think that so far as the other appellants are
concerned they should be convicted only under Section 323, IPC because once it is found that the
appellants were animated by a common intention to causes the death, Section 34, IPC would bel
attracted particularly when the other three appellants also accompanied appellant Surjit Singh at
midnight and undoubtedly shared the common intention to kill the deceased Dhan Kaur. For the
reasons given above, therefore, we set aside the conviction and sentence of appellant 1 Surjit Singh
under Section 303, IPC, convict him under Section 302, IPC, and impose a sentence of life
imprisonment for life on him. We also confirm the sentence of life imprisonment already imposed
by the trial court on the other appellant under Section 302/34, IPC. We would like to make it clear
that as the appellant 1 is already undergoing a sentence of imprisonment having regard to the length
of time already spent by him in jail we consider it appropriate to direct that the present sentence of
imprisonment for life will run from date of the conviction by the Sessions Court i.e. April 24, 1980
and the provisions of Section 433-A Criminal Procedure Code will apply.

4. The appeal is accordingly disposed of.

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