after the attack the deceased survived for sixty two days after his surgery discharged in stable condition, the only issue which needs to be examined is whether conviction of the appellants under Section 302 IPC is sustainable.=In the instant case, the appellants used firearms countrymade pistol and fired at Roop Singh at his head and the accused had the intention of causing such bodily injury as is likely to cause death. As the bullet injury was on the head, vital organ, second appellant intended of causing such bodily injury and therefore conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The learned counsel for the appellant-Sanjay submitted that it was only Narendra who fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2) on her neck, stomach and leg. Learned counsel for the appellant-Sanjay contended that as Sanjay fired only at Sheela, he could not have been convicted for causing death of Roop Singh under Section 302 IPC read with Section 34 IPC. There is no force in the above contention. The common intention of the appellants is to be gathered from the manner in which the crime has been committed. Both the appellants came together armed with firearms in the wee hours of 11.08.1998. Both the appellants indiscriminately fired from their countrymade pistols at Roop Singh- deceased and Sheela (PW-2) respectively. The conduct of the appellants and the manner in which the crime has been committed is sufficient to attract Section 34 IPC as both the appellants acted in furtherance of common intention. The conviction of the appellant-Sanjay under Section 302 IPC read with Section 34 IPC is modified to conviction under Section 304 Part I IPC. 16. Conviction of the appellants-Narendra and Sanjay under Section 302 IPC and Section 302 IPC read with Section 34 IPC respectively is modified to Section 304 Part I IPC and Section 304 Part I IPC read with Section 34 IPC respectively and each of them are sentenced to undergo rigorous imprisonment for ten years and the same shall run concurrently alongwith sentence of imprisonment imposed on the appellants. Conviction of the appellants for other offences and the respective sentence of imprisonment imposed on the appellants and fine is affirmed. The appeals are partly allowed to the above extent.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL  APPEAL NO.   11   OF  2016
               (Arising out of S.L.P. (Crl.) No.3896 of 2013)

SANJAY                                                     ..Appellant
                                   Versus
STATE OF UTTAR PRADESH                            ..Respondent
                                    WITH
                    CRIMINAL  APPEAL NO.   12    OF  2016
               (Arising out of S.L.P. (Crl.) No.3897 of 2013)

NARENDRA                                              ..Appellant
                                   Versus
STATE OF UTTAR PRADESH                            ..Respondent


                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted in both the special leave petitions.
2.          These criminal appeals have been filed  assailing  the  impugned
judgment dated  30.08.2012  passed  by  the  High  Court  of  Judicature  at
Allahabad  dismissing  the  criminal  appeals  No.2188/2007  and   2561/2007
upholding the conviction  of  the  appellant  Narendra  for  offences  under
Sections 302, 307 read with Section 34 IPC and Section 452 IPC and also  the
sentence  of  life  imprisonment,  ten  years  imprisonment  with  fine   of
Rs.5,000/-  and  three  years  imprisonment    with   fine   of   Rs.1,000/-
respectively.   The  High  Court  also  confirmed  the  conviction  of   the
appellant Sanjay under Section 302 read with Section  34  IPC,  Section  307
read with  Section  34  IPC  and  Section  452  IPC  and  sentence  of  life
imprisonment, ten years imprisonment with a fine of   Rs.5,000/-  and  three
years imprisonment with a fine of Rs.1,000/- respectively.
3.          Case of the prosecution is that appellant-Sanjay is the  brother
of deceased Roop Singh.  According to PW-2 Sheela wife of Roop Singh,  after
selling his land to Narendra, Sanjay was insisting his  brother  Roop  Singh
to sell his land to Narendra for which Roop  Singh  refused,  due  to  which
appellant-Sanjay is said to have developed enmity towards  Roop  Singh.   On
the intervening night of 10/11.08.1998 at 3.00  a.m.,  Roop  Singh  and  his
wife Sheela were sleeping in their chowk  and  a  lantern  was  lit  in  the
house.  Appellants–Narendra and Sanjay along with another person armed  with
tamancha (pistol) came to  the  house  of  Roop  Singh.   Appellant-Narendra
fired multiple bullets at Roop Singh and Roop Singh sustained bullet  injury
in his head.  Sanjay fired at PW-2 Sheela and she sustained bullet  injuries
at neck, abdomen  and  her  right  leg.   Hearing  sounds  of  bullets,  the
complainant-Partap Singh and one Ompal and several other persons  rushed  to
the spot and on seeing them, the appellants Narendra, Sanjay and  the  third
assailant fled away from the scene.  On the basis of  the  complaint  lodged
by Partap Singh at Police Station Sardhana, Meerut, case was  registered  in
Crime No. 387/1998 for offences under Sections 307  and  452  IPC.   Injured
victims were sent to Primary Health Centre, Sardhana, Meerut for  treatment.
Roop Singh (deceased) was admitted at Safdarjung Hospital, Delhi  and  after
treatment, Roop Singh  was  discharged  from  the  hospital  on  25.09.1998.
Subsequently, Roop Singh developed complications, Roop Singh was  taken  for
check up to Delhi and Roop Singh died on 13.10.1998.  Ram Pal  gave  written
information about the death of injured Roop Singh to the police and  Section
302  IPC  was  added  to  the  FIR.   After  completion  of   investigation,
chargesheet was filed against the appellants  for  offences  under  Sections
302, 307 and 452 IPC.
4.          To substantiate the charges against the appellants,  prosecution
examined nine witnesses and exhibited twenty  five  documents  and  material
objects.  Upon appreciation of evidence,  the  learned  Additional  Sessions
Judge, Meerut vide judgment dated 17.03.2007  found  the  appellants  guilty
for offences under Section 302 IPC read with Section 34 IPC and Section  307
IPC read with Section 34 IPC and Section 452 IPC and they were sentenced  to
suffer life imprisonment, ten years imprisonment with a fine  of  Rs.5,000/-
and three years imprisonment with a fine of  Rs.1,000/-  respectively.   The
trial court ordered that half of the fine amount be paid to PW-2  Sheela  as
compensation.  Aggrieved by the verdict of conviction, the appellants  filed
criminal appeals before the High Court  of  Judicature  at  Allahabad  which
were dismissed vide common impugned judgment dated 30.08.2012 upholding  the
conviction  and  sentence  imposed  upon  the   appellants   as   aforesaid.
Aggrieved,  the  appellants  have  preferred  these  appeals  assailing  the
conviction and sentence imposed on them.
5.          Learned  counsel  for  the  appellants  contended  that  as  the
deceased Roop Singh had already transferred his land to Partap Singh  (PW-1)
about one and a half years prior to  the  occurrence  and  therefore  it  is
improbable that Sanjay would have insisted his brother Roop  Singh  to  sell
his land also to appellant-Narendra and as such the motive suggested by  the
prosecution is not a probable one.  It was further submitted that  death  of
Roop Singh as seen from the evidence of Dr.  Laxman  Das  (PW-9)  when  Roop
Singh was discharged from the hospital his  condition  was  stable  and  two
months  thereafter  Roop  Singh  died  due  to  septicaemia  and   therefore
conviction of the appellants under Section 302 IPC is not sustainable.
6.          Per contra, Mr. Ratnakar Dash, learned Senior  Counsel  for  the
respondent contended that death of Roop Singh was the direct result  of  the
multiple bullet injury inflicted by  the  appellants  and  the  head  injury
caused by the appellants was sufficient in the ordinary course of nature  to
cause death and the courts below  rightly  convicted  the  appellants  under
Section 302 IPC and the same cannot be interfered.  Learned  Senior  Counsel
submitted that as the deceased Roop Singh sustained bullet injuries  on  his
head, intention to cause death can be inferred from the situs and nature  of
the injury and the weapon used.
7.          Case of the prosecution  as  seen  from  the  evidence  is  that
appellants-Sanjay and Narendra and one  unidentified  assailant  armed  with
countrymade pistols entered the house of deceased  Roop  Singh  at  the  wee
hours-3.00 a.m. on 11.08.1998.  It  is  alleged  that  the  appellant-Sanjay
fired four times at his sister-in-law-Sheela (PW-2)  wife  of  the  deceased
and Narendra fired one gun shot on the deceased-Roop Singh. Roop  Singh  was
operated at Safdarjung Hospital, Delhi and was discharged on 25.09.1998  and
he was taken back to his home  at  village  Sardhana.    When  injured  Roop
Singh was taken to Delhi for check up, he died on the  way  to  hospital  on
13.10.1998, PWs 1 and 2 have consistently spoken about the overt act of  the
appellants.  PW-2-Sheela is an injured witness and her version stands  on  a
higher footing.  The testimony of the injured witness coupled with the  fact
that the complaint was  promptly  lodged  by  the  complainant-Partap  Singh
within  one  and  half  hours  of  the  incident  lends  assurance  to   the
prosecution case.  As the prosecution  version  is  unassailable,  by  order
dated 18.04.2013, this Court  issued  notice  limited  to  the  question  of
nature of the offence committed by the appellants.
8.          In  the  light  of  the  specific  contention  advanced  by  the
appellants that after the attack the deceased survived for  sixty  two  days
after his surgery discharged in  stable  condition,  the  only  issue  which
needs to be examined is whether conviction of the appellants  under  Section
302 IPC is sustainable.
9.          Dr. Laxman Das (PW-9), Neuro  Surgeon  at  Safdarjung  Hospital,
Delhi who examined injured Roop Singh  on  12.08.1998  found  one  wound  of
insertion of bullet in the head mid  frontal  region  of  Roop  Singh  which
measured 2 cm x 2 cm. PW-9 conducted the operation on 15.09.1998 and  bullet
was extracted from the supra cellar part of the head of  Roop  Singh.   PW-9
stated  at  the  time  of  admission  of  Roop  Singh  in  the  hospital  on
12.08.1998, general condition of  the  patient  was  serious  and  that  the
injuries received in the  head  was  dangerous  to  his  life.           Dr.
Laxman Das (PW-9) opined that condition of  the  deceased  at  the  time  of
discharge  from  the  hospital  on  25.09.1998  was  not  critical  and  his
condition was stable.  In the instant case, admittedly, deceased Roop  Singh
died after sixty two days of the fateful incident.  PW-3-Dr.  M.C.  Gulecha,
who conducted the post-mortem  examination  on  the  body  of  deceased-Roop
Singh opined that the cause of death was septicaemia which was  due  to  the
wounds sustained by him prior to his death.
10.         Learned counsel for the appellants  submitted  that  since  Roop
Singh died more than two months after the date of the  occurrence  and  that
he was discharged from the hospital in good condition and septicaemia  might
have set in due to lack of proper care after  he  was  discharged  from  the
hospital and therefore the appellants cannot be  said  to  have  caused  the
death  of  deceased  and  the  conviction  under  Section  302  IPC  is  not
sustainable.
11.         Learned Senior Counsel for the respondent contended that  second
appellant-Narendra  inflicted  serious  injuries  on  the  forehead  of  the
deceased and fire shots  with   intention  to  kill  the  deceased  and  the
intention to cause death can be inferred from the situs of  the  injury  and
that the act was sufficient in  the  ordinary  course  of  nature  to  cause
death. Reliance was placed upon the judgment of this Court in  Jagtar  Singh
And Anr. vs. State of Punjab, (1999) 2 SCC 174 and  Dhupa  Chamar  And  Ors.
vs. State of Bihar, (2002) 6 SCC 506.
12.         In Jagtar Singh’s case (supra), Harbans Singh gave gandasa  blow
on the left side of the head of deceased-Naib Singh, Jagtar Singh  inflicted
khapra blow to the deceased.  The incident happened on  23.09.1991  and  the
injured succumbed to his injuries even while he was undergoing treatment  at
PGI Hospital Chandigarh on 09.10.1991.  In the said  case,  it  was  brought
out from evidence that the deceased succumbed to injuries even while he  was
undergoing treatment  and  in  such  facts  and  circumstances,  court  drew
inference that the injuries  were  sufficient  in  the  ordinary  course  of
nature to cause the death.   In Dhupa Chamar’s case  (supra),  Dhupa  Chamar
gave a bhala blow on the left side of neck of Ram Patia Devi  and  she  fell
down and died  instantaneously.  Accused  No.2-Tokha  Ram  assaulted  Dharam
Chamar in the  abdomen  with  bhala  and  he  was  rushed  to  the  hospital
whereupon he was declared brought dead.  On the basis of nature of  injuries
inflicted which resulted in the instant death of the  deceased  persons  and
other circumstances, court held that the intended injury was  sufficient  in
the ordinary course of nature to cause death and convicted the  accused  for
the offences under Section 302 IPC.
13.         However, in the instant case, it  is  apparent  that  the  death
occurred sixty two days after the occurrence due to septicaemia and  it  was
indirectly due to the injuries sustained by  the  deceased.   The  proximate
cause of death on 13.10.1998 was septicaemia which of course was due to  the
injuries caused in the incident on 11.08.1998.  As  noted  earlier,  as  per
the evidence of  Dr. Laxman Das (PW-9), Roop Singh was discharged  from  the
hospital in good condition and he survived for  sixty  two  days.   In  such
facts and circumstances, prosecution should have elicited  from  Dr.  Laxman
Das (PW-9) that the head injury sustained by the deceased was sufficient  in
the ordinary course of nature to cause death.  No such opinion was  elicited
either from Dr. Laxman Das  (PW-9)  or  from  Dr.  Gulecha  (PW-3).   Having
regard to the fact that Roop Singh survived for sixty two days and that  his
condition was stable when he was discharged from  the  hospital,  the  court
cannot draw an inference that the intended injury caused was  sufficient  in
the ordinary course of nature to cause death so as to attract clause (3)  of
Section 300 IPC.
14.         In Ganga Dass alias Godha vs. State of Haryana,  1994  Supp  (1)
SCC 534, the accused gave iron pipe single blow on the head of the  deceased
and the deceased died eighteen days after the occurrence due to  septicaemia
and other complications, the conviction of the appellant under  Section  302
IPC was altered by this Court to  Section  304  Part  II  IPC.   This  Court
observed as under:-
“6.  We find  considerable  force  in this submission.  As stated above  the
occurrence took place on November 18, 1988 and the  deceased  died  18  days
later on December 5, 1988 due to septicaemia and other  complications.   The
Doctor   found only one injury on the head and that was due to  single  blow
inflicted with an iron pipe not with any sharp-edged weapon.  Having  regard
to the circumstances  of  the  case,  it  is  difficult  to  hold  that  the
appellant intended to cause death nor it can be said  that  he  intended  to
cause that particular injury.  In any event the medical evidence shows  that
the injured deceased was operated but unfortunately some  complications  set
in and ultimately he died because  of  cardiac  failure  etc.   Under  these
circumstances, we set aside the conviction of the  appellant  under  Section
302 IPC and the  sentence  of  imprisonment  for  life  awarded  thereunder.
Instead we convict him under Section 304 Part II IPC  and  sentence  him  to
undergo six years’ RI.  The sentence of fine of Rs.2000 along  with  default
clause is confirmed.  Accordingly the appeal is partly allowed.”


15.         In the instant case, the appellants  used  firearms  countrymade
pistol and fired at  Roop  Singh  at  his  head  and  the  accused  had  the
intention of causing such bodily injury as is likely  to  cause  death.   As
the bullet injury was on the head, vital organ,  second  appellant  intended
of causing such bodily injury and therefore conviction of the  appellant  is
altered from Section 302 IPC  to  Section  304  Part  I  IPC.   The  learned
counsel for the appellant-Sanjay submitted that it  was  only  Narendra  who
fired at Roop Singh at his head, appellant-Sanjay fired on Sheela (PW-2)  on
her neck,  stomach  and  leg.   Learned  counsel  for  the  appellant-Sanjay
contended that as Sanjay fired only  at  Sheela,  he  could  not  have  been
convicted for causing death of Roop Singh under Section 302  IPC  read  with
Section 34 IPC. There is no  force  in  the  above  contention.  The  common
intention of the appellants is to be gathered from the manner in  which  the
crime has been committed.  Both the  appellants  came  together  armed  with
firearms  in  the  wee   hours   of   11.08.1998.    Both   the   appellants
indiscriminately  fired  from  their  countrymade  pistols  at  Roop  Singh-
deceased and Sheela (PW-2) respectively.  The conduct of the appellants  and
the manner in which the crime has been committed is  sufficient  to  attract
Section 34 IPC as  both  the  appellants  acted  in  furtherance  of  common
intention.  The conviction of the appellant-Sanjay  under  Section  302  IPC
read with Section 34 IPC is modified to conviction under Section 304 Part  I
 IPC.
16.              Conviction of  the  appellants-Narendra  and  Sanjay  under
Section 302 IPC and Section 302 IPC read with Section  34  IPC  respectively
is modified to Section 304 Part I IPC and Section 304 Part I IPC  read  with
Section 34 IPC respectively and  each  of  them  are  sentenced  to  undergo
rigorous imprisonment for ten years and  the  same  shall  run  concurrently
alongwith sentence of imprisonment imposed on  the  appellants.   Conviction
of the  appellants  for  other  offences  and  the  respective  sentence  of
imprisonment imposed on the appellants and fine is affirmed.    The  appeals
are partly allowed to the above extent.


                                                                ……………………CJI.
                                                        (T.S. THAKUR)


                                                                .………………………J.
                                                          (R. BANUMATHI)
New Delhi;
January 06, 2016