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3. The appellant Sudhadhar @ Soft @ Sudhakar has been convicted under Section 326 IPC and has been sentenced to 7 year rigorous imprisonment. He has also been directed to pay a fine of Rs. 3,000/- failing which he shall under go R.I for six months.

4. Briefly stated, the prosecution story is that on 22nd November, 1997 P.W. 11, Chaman Singh, went to the house of his friend Yogender Kumar, bearing No. 17-B, Vijay Block, Laxmi Nagar, Delhi. Deceased Anil Mathur alias Patti was also present there. Yogender Kumar returned to his house after 15/20 minutes of arrival of Chaman Singh. At about 4.30 p.m. Sushil Sharma came there and watched the cricket on television with them up to 5.30 p.m. Thereafter they decided to visit the Trade Fair. In the meantime, Rajkumar @ Raju also came there. He asked them to play cards with the stakes. On his suggestion, they cancelled the programme of visiting the Trade Fair. Chaman Singh, Sunil Sharma and Anil Mathur came outside as they were not interested in playing cards with stakes (gambling). they went to Vikas Marg and purchased a bottle of liquor. They decided to take drinks in the room of Yogender. While they were returning from the government liquor shop, accused Harjeet Singh @ Poppy and Sudhakar @ Soft, who were the friends of Rajkumar, accompanied by a Sikh gentleman (who was introduced as Mama by Harjeet Singh) also arrived there on two scooters. They joined them in drinking at room of Yogender. They also started playing cards with stakes. Chaman Singh stopped playing cards after some time and Anil Mathur started playing on his behalf. The appellant, Harjeet Singh, had won a good amount of money in gambling. Thereafter, he wanted to call off the game, whereas Anil Mathur, main loser in the card game, wanted him (Harjeet Singh) to continue the game in the hope that he could recover his lost amount.

13. The learned Additional Sessions Judge carefully considered the entire evidence and the documents on record. He has also carefully examined the minor contradictions which were highlighted by the learned counsel for the appellant and came to the definite conclusion that the appellant, Harjeet Singh alias poppy caused the injury which resulted in the death of the deceased. The learned Additional Sessions Judge also held that the appellant Sudhakar alias Soft was guilty of the offence under Section 326 IPC and sentenced him to undergo 7 years of imprisonment. Both the appellants aggreived by the said judgment have preferred these appeals.

21. Now the question arises whether the learned Additional Sessions Judge was justified in convicting Harjeet Singh @ Popy under Section 302/34 IPC and Sudhakar @ Soft under Section 326 IPC. The learned counsel for the appellants submitted that injury was on the left thigh which is not a vital part of the body and it is a case of single injury. The conviction ought not to have been under Section 302/34 IPC, but under Section 304 Part II so far as the appellant Harjeet Singh is concerned. A number of reported cases have been relied upon in support of the contention that in cases of this nature the appropriate conviction ought to be under Section 304 Part II. Similarly, according to the learned counsel for the appellant the conviction of Sudhakar @ Sophy is wholly untenable. Admittedly, the deceased had received only one injury on the left thigh which is specifically attributed to the appellant Harjeet Singh. In this view of the matter, according to the appellant the conviction of Sudhakar under Section 326 IPC is untenable.

32. We have carefully considered the decided cases of the Supreme Court and the High Courts, including the judgments of this court. While keeping in view the facts, circumstances and evidence on record the conviction of the appellant Harjeet Singh @ Popy is converted from 302 IPC to 304 Part II IPC and he is directed to undergo the sentence of five years R.I.

33. The appellant Sudhakar has been convicted under Section 326 IPC. In our considered opinion, Sudhakar's conviction under Section 326 IPC is untenable because he did not inflict any injury on the deceased. He also cannot be convicted with the aid of Section 34 because Harjeet Singh has not been convicted under Section 326 IPC. His role was that the took out a knife but Chaman Singh caught hold of him. Infact he did not inflict any injury. Both Harjeet Singh and Sudhakar were charged under Section 302/34 IPC. According to the role of Sudhakar he ought to have been convicted under Section 304 Part II IPC read with Section 34 IPC because he shared the common intention with the appellant Harjeet Singh of causing injuries. The only distinguishing feature in the role of Harjeet Singh and Sudhakar is that Harjeet Singh infact inflicted the injury whereas Sudhakar was prevented from inflicting the injury. His conviction is converted from Section 326 IPC to Section 304 Part II IPC and since he did not inflict any injury on the deceased he is directed to undergo the sentence of three years R.I.