- (1.) Leave granted.
(2.) Hare are three appellants challenging their conviction and sentence under Section 302/34, I.P.C. recorded by the Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 296 of 1985 as affirmed by High Court. It transpires that one of them, namely, Rarndiyal Mahto has since died during the pendency of the petition before the Court.
(3.) The accused persons and the deceased were neighbours. They had a quarrel on the day previous to the day of the occurrence in a Mela villa either On the day of the occurrence, it is alleged that the deceased was belaboured by the three accused on account of the grudge of the previous day The attack was made by sticks. The outcome was tour abrasions on different parts of the body and one lacerated wound on the head of the deceased. The lacerated wound was the fatal injury. Neither in the FIR nor in the deposition of the eye-witnesses has the author of the fatal lacerated wound been identified. It remains obscure as to which of the three appellants before us was responsible tor the injury. However, it can certainly be said that two of them were not responsible tor it and which are those it is difficult to say. The guilt of the appellants has thus to be spread and their common intention discerned before settling the question of the offence. Now if the common intention of the accused was to kill the deceased, it should not have ended merely with four small abrasions on non-vital parts of the body such as the knees, elbow and shoulder and lacerated wound only on the scalp, the fatal injury. The prosecution as said before has failed to identify the one who gave the fatal injury. It appears to us, in the facts and circumstance., that the common intention of the appellants to give a thrashing to the deceased and they did not intend his murder. We according convert the conviction oi the appellants from under Section 302/34, I.P.C. to one under Section 325/34, I.P.C. and sentence them to five years R. I. for the offence so scaled down. To this extent the appeal is partially allowed, the question oi offence having been strengthened in this manner, the appeal of the deceased, Ramdayal Mahto would stand abated. Appeal partly allowed.;