Md. Isak Md. and Others vs State of Maharashtra

S. Murtaza Fazal Ali, J.—This appeal under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, is directed against the judgment of the Bombay High Court dt. 21/25 6-74 by which the High Court reversed the order of the Sessions Judge acquitting the appellants u/s 302 IPC and convicted them only u/s 304(1) and sentenced to seven years and 5 years R.I. The appellant No. 1 was sentenced to seven years R I. and the other appellants were sentenced to five years each because of their young age The facts have been detailed in the judgments of the Court below and and it is not necessary for us to repeat the same all over again. We have heard learned Counsel for the parties and have gone through the judgment of the High Court and of the Sessions Judge. The occurrence in the course of which the deceased was assaulted, took place suddenly and after hot exchange of abuses, which took place between the deceased and the appellants. The appellants are said to have assaulted the deceased with sticks. There is no evidence to show as to which of the appellants struck the fatal blow on the deceased. Having regard therefore to the circumstances of the present case and the nature of injuries sustained by the appellants, we are unable to agree with the High Court that the case falls u/s 302. There is no evidence of any intention on the part of the appellant either to cause death of the deceased or cause such injuries of which the appellant could have the knowledge that it was likely to cause death although it cannot be doubted that the appellant had the common intention to cause grievous hurt to the deceased by lathis. Thus the offence falls u/s 325/34 and not u/s 302 or 304(1). It appears that the appellants have already served their sentences or at any rate a substantial part of it. For these reasons, therefore, we would allow this appeal to this extent that the conviction of the appellants are altered from that u/s 302/34 to one u/s 325/34 and the sentences are reduced to five years in each case. As the appellants have already served out their sentences, they will now be released forthwith.