1. This appeal is filed under the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act for offences punishable under Sections 148, 302, 302 read with 149, I.P.C. The trial Court acquitted all the accused. The State preferred an appeal. The High Court acquitted A-2 to A-8 but convicted the appellant under Section 302, I.P.C. and sentenced him to undergo imprisonment for life.
2. The prosecution case is as follows:
The deceased. Suddhu Kurmi and all the accused and material witnesses P.Ws. 1, 3 and 5 belong to Village Bhathlokale. The deceased had two houses one old and the other new. The houses of the accused were located quite closely. The further case of the prosecution is that there was some misunderstandings between the deceased and the accused families and on 22-11-78 at about 7 p.m. the deceased was going from his new house to old house and when he covered a distance of five paces the accused came there armed with tabbal and lathis. The appellant before us who was armed with a tabbal opened the attack and hit the deceased with the tabbal on his head. Thereafter it is alleged that the other accused surrounded and assaulted the deceased. The occurrence was witnessed by P.Ws. 1, 3 and 5 who were also related to each other. The deceased died and the report was given by P.W. 1 at Police Station Lormi on the next day. The doctor P.W. 9 who conducted the post-mortem found only two external injuries; one was an incised wound 8' x 1' on the head which resulted in the fracture of skull bones and the other injury was only a lacerated wound. The investigation was completed and the charge-sheet was laid. The accused were arrested and at their instance some weapons like tabbies and lathis were recovered.
3. The prosecution mainly relied on the evidence of P.Ws. 1, 3 and 5 who are direct witnesses and the medical evidence. Before the trial Court it was urged that the occurrence time was 7.20 p.m. and it was highly impossible for anybody to identify the assailants, as has been spoken by P.Ws. 1, 3 and 5. The trial Court looked into the almanac and came to the conclusion that at 7. p.m. it must have been dark and, therefore, it would not have been possible for the witnesses 'to identify the assailants. Mainly in that view of the trial Court acquitted all the accused.
4. In the appeal the High Court considered the evidence of P.Ws. 1, 3 and 5 and held that they are the residents of the same village to whom the accused was well known and held that their evidence to the extent that the appellant was the first to open the attack and inflicted the fatal injury could be relied upon and, therefore, he could be convicted under Section 302, I.P.C.
5. In this appeal Shri S. S. Khanduja, learned Counsel for the appellant submits that the trial Court has rightly held that it was dark and when the witnesses have implicated as many as eight accused and when their evidence was rejected in respect of seven of them it could be highly unsafe to convict the appellant on the same evidence.
6. We have examined the evidence of P.Ws. 1, 3 and 5 direct witnesses. Merely because it was 7 p.m. , it cannot be said that they could not have been able to identify the assailants when the occurrence took place in the open air. That apart all the three eye- witnesses have consistently deposed that it was the appellant who first came forward and attacked the deceased. Therefore, that provided a clear opportunity for the three eyewitnesses to have identified the appellant. The medical evidence to that extent corroborates the evidence of three eye-witnesses. Therefore, the High Court, in our view, was right in holding that the appellant dealt a single blow on the head which unfortunately resulted in the fracture of the bones.
7. That takes us to the nature of the offence. All the three eye-witnesses have spoken that the appellant dealt only one blow with the implement. Having regard to the time and the surrounding circumstances it is difficult to hold that he intended to cause the death of the deceased particularly, when he was not armed with any deadly weapon as such. As an agriculturist he must have been having a tabbal in his hands and if in those. circumstances he dealt a single blow it is difficult to convict him by invoking Clause (1) or (3) of Section 300, I.P.C. It cannot be said that he intended to cause that particular injury which unfortunately resulted in the fracture of bones. Therefore, the offence committed by him would be one amounting to culpable homicide punishable under Section 304, Part-II, I.P.C. We accordingly set aside the conviction of the appellant under Section 302, I.P.C. and sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304, Part-II, I.P.C. and sentence him to undergo Rigorous Imprisonment for seven years. The appeal is partly allowed to the extent indicated here-inabove.