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1993 (4) TMI 71 - SC - Indian LawsWhether mere rejection of the Special Leave Petition of co-accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court? Held that:- On materials on record, the prosecution has not been able to prove and establish that appellants had the common object or shared the common intention to cause the murder of the victim. From the evidence of the prosecution itself it appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a fight took place in which the appellant Satbir gave a blow by the back side (wooden part) of the Pharsa, which caused one of the two injuries on the head of the deceased. It cannot be held that appellant Satbir had an intention to cause the death of the victim. In the circumstances of the case, it can be said that he had only knowledge that such blow may cause an injury resulting in the death of the victim. Accordingly he should have been convicted under Section 304, Part-11, of the Penal Code. So far appellant Gulbir is concerned, according to the prosecution case, he was carrying a stick and he is alleged to have given a stick blow to the deceased on a non-vital part of the body. In this background, according to us, he can be held to have committed the offence only under Section 325 of the Penal Code. As already pointed out according to the prosecution case itself, the appellant Hari Singh, who was aged about 60 years at the time of the occurrence is said to have given a stick (lathi) blow to the informant PW 16. He is not alleged to have given any blow to the deceased. Once it is held that different accused persons neither had any common object nor any common intention which they shared together to commit an offence under Section 302 or alike, the appellant Hari Singh has to be held guilty for an offence only under Section 323 of the Penal Code. In the result the conviction of the appellants under Section 302 read with Section 149 of the Penal Code is set aside. The conviction under Section 148 and 323 read with 149 is also set aside. The appellant Satbir is convicted for an offence under Section 304 Part II and is sentenced to undergo rigorous imprisonment for seven years. The appellant Gulbir is convicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for three years. So far the appellant Hari Singh is concerned, he is convicted for an offence under Section 323 of the Penal Code and is sentenced to the period of imprisonment already undergone. Accordingly, the appeals are allowed in part to the extent indicated above.
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