BUDDHU SINGHversusSTATE OF BIHAR (NOW JHARKHAND)

                        [2011] 5 S.C.R. 962


A                         BUDDHU SINGH
                                  v.
             STATE OF BIHAR (NOW JHARKHAND)
               (Criminal Appeal No. 349 of 2007)
                          APRIL 28, 2011
B
           [V.S. SIRPURKAR AND T.S. THAKUR, JJ]

        Penal Code, 1860: s. 304 (part II) - Three accused - First
  two accused grappled and pinned down the victim - Third
C accused dealt a blow of axe which landed on the head of the
  victim - Victim was seriously injured and died in hospital -
  Courts below convicted accused u/s. 302 and awarded life
  imprisonment - On appeal, held: There could not have been
  the intention to commit the murder of the victim though the
D common intention on the part of first two accused could be
  attributed since they did the overt act of grappling with and
  pinning down the deceased - Intention of third accused to not
  commit the murder was also justified by the fact that the
  accused who dealt a blow of axe did not repeat the assault -
E The blow could not be said to be intended towards the head
  of victim - It could have landed anywhere, however it landed
  on the head of the victim - Therefore, element of intention is
  ruled out - Conviction modified and converted into s.304 (part
  II) - Sentence reduced to period already undergone.
F      The prosecution case was that there was some
  dispute between the accused persons and the victim-
  deceased. Accused 'L' was father of 'B' and 'BS'. On the
  fateful day; accused 'B' and accused 'L' grappled wi.th the
  victim and pinned him down, while, accused 'BS' dealt
G an axe blow which landed on the head of the victim. The
  victim got seriously injured on account of that blow and
  died in the hospital. The trial court found all the accused .
  guilty under section 302 IPC and awarded life sentence.
  The High Court affirmed the same. The instant appeals
                                962
     BUDDHU SINGH v. STATE OF BIHAR (NOW              963
                JHARKHAND)

were filed by the accused challenging the order of           A
conviction.
   ·Partly allowing the appeals, the Court
     HELD: There was nothing on record which could be
said against the accused 'L' and 'B' though the common B
intention on their part could be attributed sir:ice they had
done the overt act of grappling with and pinning down
the deceased. Seeing his father and brother grappling
with the deceased, accused 'BS' dealt an axe blow. The
blow could not be said to be intended towards the head. c
It could have landed anywhere. However, it landed on the
head of the deceased. Therefore, the element of intention
is ruled out. Again the defence raised on behalf of the
accused that there could not have been the intention to
commit the murder of the deceased is justified by the fact 0
that the accused 'BS' did not repeat.the assault. Under
the circumstances, the prosecution was able to establish
the guilt of the accused persons under'Section 304 Part
111.P.C. The finding of the High Court is modified and the·
conviction of the accused is converted from· Section 302 E
IPC to Section 304 Part II IPC and they are sentenced to·
the period already undergone. [Paras 9, 10] [965-E-H; 966-
A-B]
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 349 of 2007 etc.                                         F

    From the Judgment & Order dated 18.05.2006 of the High
Court of Jharkhand in Cr. App. No. 238 of 2000 R.

                          WITH
Crl. Appeal No. 1116 of 2007.                                G

    Ajit Kumar Pande, S.B. Khan for the Appellant.

    Manish Mohan, K.N. Sinha (for Anil Kumar Jha) for the
Respondent.
                                                             H
    964      SUPREME COURT REPORTS                [2011] 5 S.C.R.


A         The Judgment of the Court was delivered by

         SIRPURKAR, J. 1. Criminal Appeal No. 349 of 2007 has
    been filed by accused Buddhu Singh while Criminal Appeal No.
    1116 of 2007 has been filed by his father Ledwa Singh and
    brother Balchand Singh. The trial court found them guilty under
8
    Section 302 IPC and sentenced each one of them to
    imprisonment for life. The High Court also affirmed the
    conviction and sentenced awarded by the trial court.

       2. The prosecution case is that the deceased Sugendra
C Singh llJas suspected to be practising witchcraft and he was
  aggrieved against the accused persons for not giving to him
  theJeast which he was professionally supposed to .be paid on
  account of getting cured of accused Balchand Singh from some
  serious illness. The incident seems to have taken suddenly
D wit.hout there being any previous history t'."I it.

      3. The allegation is that on 30.7.1995 at about 4 p.m.
  deceased Surendra Singh was standing in front of house of
  PW5 Nagru Kharia when accused Balchand Singh pushed him
E down and accused Buddhu Singh is said to have then dealt an
  axe blow which landed on the head of the deceased. Accused
  Ledwa Singh is, thereafter, said to have started kicking the
  deceased. It is reported that on account of that blow, Sugendra
  Singh was seriously injured and died in the hospital.

F      4. The prosecution pressed in service the evidence of
  three eye witnesses namely; PW 2 Feku Kharia, PW6 - Karia
  Singh and PW7 Tijo Oevi. PWs 2 and 6 turned hostile and
  refused to support the prosecution. PW7, being the mother of
  the deceased, however, supported the prosecution case.
G According to her, she saw the accused Balchand Singh and
  Ledwa Singh grappling with the deceased while accused
  Buddhu Singh giving an axe blow on the head of the deceased.

       5. We have gone through the evidence of the witnesses
H very carefully.
     BUDDHU SINGH v. STATE OF BIHAR (NOW                     965
        JHARKHAND) [V.S. SIRPURKAR, J.]

     6. Mr. Ajit Pandey, learned counsel appearing for the A
accused persons contended thatfirstly this was a case of single
blow and the blow could not have been intended to be given:
on the head though it did land on the head. Mr. Pandey further
argued that if the intention was to commit the murder, then the
accused persons, more particularly accused Buddhu Singh B
would have repeated the assault which he actually and
admittedly did not repeat.

     7. Mr. Pandey further contended that once the injury was
unintended, the offence could be converted into Section 304 C
Part II IPC from Section 302 IPC because the accused ought'
to have the knowledge that a single assault by an axe could
result into the death of the deceased.

     8. Mr. Manish Mohan, learned counsel appearing for the
State supported the judgment and contended that the injury was       D
serious enough and was on a very vital part i.e. head and
resulted in the fracture of frontal bone and the death was almost
instantaneous, though in the hospital.

      9. Considering the overall material, we are of the view that   E
there is hardly anything on record which can be said against
the accused Ledwa Singh and Balchand Singh though the
common intention on their part could be attributed since they
had done the over act of grappling with and pinning down the
deceased. Now, seeing his father and brother had been
grappling with the deceased, the accused Buddhu Singh dealt          F
an axe blow which could not be said to be intended towards
the head. It could have landed anywhere. However, it landed
on the head of the deceased. Therefore, the element of intention
is ruled out. Again the defence raised on behalf of the accused
that there could not have been the intention to commit the           G
murder of the deceased is justified by the fact that the accused
Buddhu Singh did not repeat the assault. Under the
circumstances, we feel that the prosecution has been able to
establish the guilt of the accused persons under Section 304
Part 111.P.C.                                                        H
     966       SUPREME COURT REPORTS                 [2011] 5 S.C.R.

A        10. We, accordingly, modify the finding of the High Court
  and convert the conviction of the accused from Section 302 IPC
  to Section 304 Part II IPC and sentence each of them to the
  period already undergone. Accused Bucidhu Singh is stated to
  be in jail for the last five years whereas other accused persons
B namely; Ledwa Sngh and Balchand Singh are stated to be in
  jail for the last ten years. They be released from the jail forthwith
  unless they\are required in any other case.
            11. The appeals are partially allowed.
1C   D.G.                                    Appeals partly allowed .




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