1997 INSC 0484
                                                     State of U. P.

                                                           Vs

                                                 Lakhan and Others

                                    Criminal Appeals Nos. 461-462 of 1997

                                       (K. Ramaswamy, D. P. Wadhwa JJ)

                                                      11.04.1997

                                                        ORDER

1. Leave granted.

2. These appeals by special leave arise from the judgment of the Division Bench of the Allahabad
High Court, dated 18-2-1991 in Criminal Appeals Nos. 1026 and 1121 of 1978.

3. The prosecution case is that on 6-3-1977, while the deceased Sukhuwa and his sons and his
younger brother were returning from the Holi festival and reached the house of the accused,
suddenly all the three accused armed with lathis attacked the deceased on the head and other parts of
the body. When the sons and brother of the deceased raised alarm, all of them ran away. The
deceased had fallen on the ground. He was taken on a cot to his house. Thereafter, he breathed his
last. An FIR came to be filed on the same day at about 10.30 p.m. Investigation started and the
doctor M.M.S.A. Khan, who conducted the post-mortem on 8-3-1977, opined that the injuries were
sufficient to cause death in the ordinary course of nature. The Autopsy Surgeon found the following
ante-mortem injuries :

                  "1. Lacerated wound 2" x 1" x bone-deep present over the left side of forehead, left
                  eyebrow and outer of left eye bones underneath.

                  2. Lacerated wound 1/4" x 1/4" x bone-deep present over left zygomatic bone, bone
                  underneath fractured.

                  3. Abraded contusion 2" x 1" present 1" below Injury 1.

                  4. Lacerated wound 1" x 1/4" bone-deep present over the middle of the chin, bone
                  underneath fractured.

                  5. Abraded contusion 2" x 1-1/4" present over the posterior aspect of lower third of
                  right forearm, bones underneath fractured."

4. The question, therefore, is whether all of them shared the common intention to cause death of the
deceased or the offence was one under Section 304 Part II as found by the High Court ? The
Sessions Judge after recording the evidence and on the nature of the evidence concluded that the
offence is one of murder punishable under Section 302 IPC and accordingly the respondents came
to be convicted under Section 302 read with Section 34 IPC and were sentenced to undergo
imprisonment for life. On appeal, the High Court while accepting the evidence of the direct
witnesses, the sons and brother of the deceased, PWs 1 to 3, and accepting the evidence of the
doctor came to the conclusion that the prosecution has proved the case beyond reasonable doubt, but
suddenly jumped to the conclusion that the accused had no intention to kill the deceased.

5. Learned amicus curiae for the respondent has contended that the accused had no motive and
intention to kill the deceased. We find no force in the contention. The motive is locked up in the
heart of the accused and therefore, it is to be adjudged from the circumstances available on record.
Whether the accused had intended to cause death also is an inferential fact drawn from the
circumstances. It is seen, as accepted by the High Court at p. 20 of the paper-book that the deceased
and the witnesses were unarmed and when they were returning from the Holi festival and reached
the stated place, all of a sudden the accused in concert armed with lathis attacked the deceased and
caused injuries on the head and other vital parts of the body, as noted above. The mere fact that
extensive damage has not been caused to the deceased does not establish that the offence is not one
of murder punishable under Section 302. All the accused armed with lathis lay in wait. The High
Court, therefore, committed manifest error in converting the offence from murder to culpable
homicide not amounting to murder punishable under Section 304, Part II, IPC.

6. The appeals are accordingly allowed. The judgment of the High Court converting the offence
stands set aside. The accused stand convicted for an offence under Section 302 read with Section 34
IPC and they are sentenced to undergo imprisonment for life. They shall be directed to be taken into
custody forthwith to undergo the sentence.