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A.F.R.

Court No. 55

JAIL CRIMINAL APPEAL NO. 5048 of 2004

SURYA KANT AND OTHERS................................. APPELLANTS

VERSUS

STATE OF U.P. ...................................................RESPONDENT.

Hon'ble Vinod Prasad, J.

Hon'ble Virendra Singh, J.

(Delivered By The Bench)

The three sibling agnate brothers Surya Kant, Mani Kant and

Chandra Kant were tried by Sessions Judge, Saharanpur in S.T. No.

143 of 2003 (State Vs. Surya Kant and others) for offences under

Sections 302/34 and 307/34 I.P.C. relating to P.S. Titro, District

Saharanpur. Finding their guilt established to the hilt for offences

under Sections 302/34 and 323/34 I.P.C., trial Judge convicted them

for the aforesaid offences and sentenced them to life imprisonment

with fine of Rs. 5,000/- and in default of payment of fine to under go

six months further rigorous imprisonment on the first count and six

months R.I. on the second count. All the three appellant brothers

have questioned the legality and sustainability of their said

convictions and sentences in this court by filing the instant appeal.

Prosecution allegations against the appellants, as was disclosed

in the written report Ext. Ka 1 and subsequently stated during the

trial by the informant P.W. 1 Vikash Sharma are that Aatma Ram had

three sons Shiv Charan,Hari Om and Devi Chand. Informant Vikash

Sharma is the son of Shiv Charan and the deceased Ashwani Kumar

was the son of Hari Om. Devi Chand has sustained injuries in the

incident in question. Hari Om had sale proceeds of his sold berseem

due to appellant Surya Kant, who kept on dilly dallying said payment.

Neutral Citation No. - 2009:AHC:24250-DB

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Causa causans of the occurrence was that on 15.7.2002 at 7.30

p.m. Ashwani Kumar(deceased) a youth of 18 years, along with

Vikash Sharma, informant went to the house of appellant Surya Kant

asking for the said payment. Affronted by the demand, which the

appellant took to be a temerity,they firstly vetuparised the deceased

and the informant and then accosting them Surya Kant and Chandra

Kant picked up knives and Mani Kant picked up a sariya. Two of the

Appellants armed with knives ripped the body of the deceased with

seven stab and incised wounds with their knives. Mani Kant however,

assaulted informant and Devi Chand only. Hue and cry raised by the

informant and the other witnesses, attracted many people at the spot

on which accused persons made their escape good. Murderous

assault had imbibed the area with terror stricken psychosis and the

local inhabitants had pulled down their shutters, windows and had

closed their doors. When the informant was transporting injured to

P.H.C. Gangoh for medical help Ashwani Kumar yielded to sustained

injuries and lost his life. Written FIR Ext. Ka 1, was got scribed by

Satish Kumar by the informant, who after covering a distance of 9

kms, lodged it at police station Titro on the same day at 9.20 p.m.

Constable Fakir chand, P.W. 6 registered Ext. Ka 1, prepared the

chik FIR Ext. Ka 6 and the G.D. entry Ext. Ka 7 and entrusted the

investigation to S.I. Sri Jaivir Singh Rathi, P.W. 7. Commencing

investigation, I.O. proceeded for the spot, conducted inquest on the

dead body of the deceased in the night itself from 10 pm to 11.30

pm, prepared the inquest report(Ext. Ka 8) and other necessary

documents of chalan Lash, photo lash, letter to RI and to CMO. etc(

Ext. Ka9 to Ka 12) and dispatched the sealed dead body to the

mortuary for autopsy examination through constables Sanjay Kumar

and Rishipal. Station officer K.K. Kanaujiya, PW9, meanwhile reached

at the spot and hence continued investigation was conducted by him,

who first of all interrogated the informant and recorded his 161

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Cr.P.C. statement and thereafter collected the blood stained and plain

earth ( Material Ext.1 and 2), from the spot and prepared its

recovery memo Ext. Ka 13.Conducting spot inspection S.O. prepared

the site plan Ext. Ka 14. On 19.7.2002 I.O. K.K. Kanaujiya P.W. 9,

copied the postmortem examination report and injury reports. The

three appellants were arrested by the R.P.F. On 18.7.2002 for

breaching provisions of Railways Act and were lodged in jail. The

second I.O. S.O.Kanaujia got this information on 23.7.2002 and

therefore he interrogated the appellants inside district jail and on the

basis of their disclosure statements and at their pointing out

recovered weapons of assault on 1.8.2002 and prepared its recovery

memos Ext. Ka 15 to Ext. Ka 17. Concluding investigation, PW9 S.O.

K.K.Kanaujia charge sheeted the appellants on 4.8.2002, vide charge

sheet Ext. Ka 19. During the course of the investigation, I.O. had

sent for forensic science examination blood stained cloths etc. and

its examination report dated 18.11.2002 has been proved by him as

Ext. Ka 20.

Autopsy on the dead body of the deceased Ashwani Kumar

was conducted on 16.7.2002 at 4.00 p.m. by Dr. A.C. Sharma, P.W. 5,

who has proved his post mortem examination report as Ext. Ka 5.

Autopsy examination report indicate that the deceased was 18 years

of age having an average built muscular body. Rigor mortise had

passed off from his upper limbs and was present in the lower limbs.

His both eyes were closed. Doctor has noted following ante mortem

injuries on the corpse of the deceased:-

"1. Incised wound 1cmx 0.3cm x muscle deep just above the left

eye brow.

2. Stab wound 2.5cmx1.5cmxthe chest cavity deep on front of

left side of chest, 1.5cm below left nipple, directing inwards and

medially.

3. Stab wound 2.5cmx1.5cm x chest cavity deep on front of left

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side of chest, 1.5cm below injury no. 2 directing medially.

4. Stab wound 2.5cm x 1.5cm x chest cavity deep on the lateral

aspect of left side of chest , 11cm lateral to left nipple directing

towards right.

5. Stab wound 2.5cm x 1.5 cm x chest cavity deep on postero

lateral aspect of left side of chest just lateral to scapula, 12cm distal

to accomion.

6. Stab wound 2.7 cm x 1.5 cm x abdominal cavity deep on the

antero lateral aspect of abdomen just below rib cage 13 cm from

umbilicus.

7. Incised wound 4.5 cm x 2cm x muscle deep behind left

elbow joint. "

Doctor has further noted that muscle,ribs, pleura on the left

side underneath injuries no. 2,3,4 and 5 were cut and one liter of

blood was present in pleural cavity. Right side lung was cut

underneath injuries no. 3 and 4 and pericardium was cut under

injury no. 2. There was a cut of 0.7 x 0.3 x 1cm deep in the

mayocardium of left ventricle, and chambers of heart were empty.

Muscles and peritoneum under injury no. 6 were cut. 200 gms of

semi digested food was present in the stomach and intestines

contained gases, fluid and fecal matter. In the opinion of the doctor

cause of deceased death was shock and hemorrhage as a result of

sustained ante mortem injuries Nos. 2, 3, 4, 5 and 6.

Injured informant was medically examined the same night

16.7.2002 at 0.25 a.m. at PHC Gangoh, by doctor R.K. Goel PW4 and

following two injuries were detected on his torso:-

"(1) Linear Abrasion 6cm x 1 cm on the dorsal aspect of lower

part of Rt. Forearm, Colour of abrasion bright red.

(2) Linear Abrasion 10 cm x 1.5 cm on the torso lateral surface

of upper of ½ Rt. Thigh , colour of abrasion bright red. "

Both the above injuries were simple in nature, caused by hard

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and blunt object and were fresh in nature. Medical examination report

of the informant is Ext.Ka 4 which has been proved by PW 4.

Devi Chand, another injured was medically examined the same night

at 12.40 a.m. at the same PHC by the same doctor PW 4, who has

proved his medical examination report Ext. Ka 2. The said injured had

following injuries on his person:-

"1. Linear abrasion 12 cm x 1.5.cm .. surface of middle of Rt.

Thigh, colour of abrasion bright red cum tenderness & swelling in the

underlying area.

2. Linear Abrasion 8cm x 2cm on the rt. Thigh colour of

abrasion bright red cum marked tenderness and swelling in the

underlying area.

3. Linear abrasion 8cm x 1.5 cm on the Superficial surface of

right shoulder region colour of abrasion bright red.

4. Irregular Abrasion 2cm X 1 cm on the Rt. parital region cum

swelling and tenderness in the under lying area.

5. Well defined swelling 3 cm x 2 cm on the right frontal region

is tender to touch."

Doctor has noted all injuries to be fresh and were caused by

hard and blunt object. He had kept injury no. 2 under observation as

rest of the injuries were simple in nature. He had also advised x-ray

of left joint cum thigh. X-ray examination report of the this injured

vide Ext Ka 3 indicate no fracture being sustained by the victim and

hence none of his injury was grevious in nature.

After the charge sheet was laid in the Court, appellants were

summoned by the Magistrate and their case was committed to the

court of sessions for trial. Sessions Judge, Saharanpur on 17.4.2003,

charged the appellants under Sections 307/34 and 302/34 I.P.C.

which charges where denied by the accused who all claimed to be

tried.

Prosecution in an endeavour to establish the charge examined

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nine prosecution witnesses out of whom P.W. 1 Vikash Sharma

(informant), Devi Chand (injured eye witness) and Thath Singh P.W. 3

were the witnesses of facts. Rest of the prosecution witnesses Dr.

R.K. Goel P.W. 4, Dr. A.C. Sharma P.W. 5, Sri Fakir Chand P.W. 6, Jaivir

Singh Rathi P.W. 7, Rishipal P.W. 8 and K.K. Kanaujiya P.W. 9 were the

formal witnesses to support fact witnesses.

In his deposition before the trial court informant PW 1 narrated

the same prosecution story as was mentioned by him in Ext. Ka 1.

He was cogent, reliable and unhesitant in deposing that the

immediate motive for the cause of murder was demand of Rs. 250/=

by the informant and the deceased from the accused appellants at

their house. Appellants Surya Kant and Chandra Kant had picked up

the knives and both of them had caught hold of both the hands of

the deceased and both had knifed the deceased body by stabbing

him repeatedly, whereas appellant Mani Kant had assaulted the

informant and the injured from his iron rod. He had not endeavoured

to assault the deceased at all. He has proved the date, time and

place of the incident. PW 1 has further deposed that the deceased

was a student at the time of the incident and the uncle of the

deceased had told him that he can take some money from him and

get himself admitted in the school. He has further deposed that they

had gone to PHC Gangoh on a tractor, when the deceased had lost

his life and PW 3 Thath Singh had also witnessed the murder. He has

further deposed that he and the deceased had reached at the spot

from north side. This witness was searchingly cross examined at the

topography of the spot and his house but nothing material could be

elicited from him in that respect. He had denied the alibi of the

appellant accused by stating that they all live in the village of the

incident itself. He had further disclosed that he had remained in the

hospital for two days and was discharged on the second day in the

evening. Regarding omissions in his interrogative statement PW 1 has

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offered an acceptable explanation by stating that since the

investigating officer did not question him on those aspects therefore

he had not mentioned those facts in his 161 Cr.P.C. statement. He

had denied the suggestion that the deceased was murdered in the

night at 10-11 p.m. and he had falsely implicated the appellants

because of political rivalry in connivance with the investigating officer.

Devi Charan, PW 2, who is an injured witness has

countenanced the prosecution case farther and has supported PW 1

informant on all material aspects of the occurrence. He had disclosed

that deceased was his real nephew and his brother master Hari Om

had sold Barseem to appellant Surya Kant about which RS. 250/=

were due of the sale proceeds. He had deposed that he was

indisposed since last three or four days and, since homeopathic

medicine did not cure him,he had gone to the chemist shop of Arvind

for purchasing medicines and hearing the altercation he had reached

the spot, where had witnessed the assault made by the accused. He

has established the presence of Thath Singh, PW 3, Radhey Shyam

and other co villagers and had further testified that, when he tried to

intervene he was also assaulted with Saria and had sustained five or

six Saria injuries. He has showed his ignorance regarding vocations of

the accused persons. He has denied suggestion that to show his

presence he had got a sham medical examination report prepared

and he had not seen the incident. PW 3 Thath Singh has also

divulged the same story as that of PW 1 and 2 and has supported

them well in his depositions.

The trial Judge believed prosecution witnesses of facts and

finding of guilt of the appellants established to the hilt convicted and

sentenced them as is mentioned above. Hence this appeal

questioning the impugned judgment.

We have heard Sri V.P. Srivastava, learned Senior Counsel

assisted by Sri Raghuraj Kishore Advocate in support of this appeal

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and Mrs. Raj Laxmi Sinha, learned AGA in opposition.

Learned Senior Counsel contended before us that section 34

I.P.C. has no applicability on the facts alleged by the prosecution as

there was no common intention to murder the deceased and hence

section 34 I.P.C. can not be pressed into consideration to convict the

appellants. Elaborating the said contention it was submitted that the

incident occurred at the spur of the moment in the midst of heated

argument without any premeditation hence there was no comity of

intention nor common intention to commit deceased murder. It was

therefore suggested that conviction of all the appellants with the aid

of section 34 I.P.C. is not sustainable and deserves to be set aside. It

was urged that each of the appellant was liable for his individual act

and therefore section 34 should not be applied in the present fact

scenario. It was vehementally harangued that Mani Kant did not

share the common intention of causing death of the deceased with

other accused and consequently his conviction under Section 302/34

I.P.C. and imposed sentence thereunder cannot be countenanced and

must be set aside. Alongwith aforesaid submission, learned counsel

for the appellants also meekly addressed us on other factual aspects

of the matter but at last conceded that so far as the two other

appellants Surya Kant and Chandra Kant are concerned, opinion of

the trial judge and their conviction and sentence do not suffer from

any infirmity either in law or on facts.

Learned AGA, per contra submitted that Section 34 will be

applicable fully as all the three persons were present at the spot

and they all assaulted simultaneously. In her submission, the

common intention to commit the murder of the deceased was writ

large on the record and, therefore, the appeal is bereft of merits and

deserves to be dismissed.

We have considered the rival contentions and have gone

through the evidence of record. The texts of evidences of three

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witnesses of fact Vikash Sharma P.W. 1, who is an informant injured,

Devi Chand, who is also an injured and an eye witness of the incident

and that of Thath Singh P.W. 3, who had seen the incident, are of

unimpeachable nature. Their evidence does not suffer from any

inherent defect at all nor counsel for the appellants could bring to our

notice any such defect. PW 1 and PW 2 are close relatives of the

deceased and they themselves are injured in the incident and

therefore there was no reason for them spare the real murderers who

had assaulted them. There was no enmity between the deceased and

the appellants prior to the present incident nor any such defence

has been suggested by the accused to the witnesses during their

cross examination. Immediate causa causans was asking of residue

of sale proceeds by the deceased and the informant on the fateful

day of the incident. Deceased was a student and was to get

admission in the educational institution and therefore he required

fees for that purpose. His uncle had told him to get money due from

the appellants to deposit fees. This allegation of the prosecution

could not be shattered by the defence at all and therefore motive for

committing the crime is well established by the prosecution

evidences. In respect of actual assault none of the fact witnesses

made any deviation from the version mentioned in Ext. Ka 1. During

the trial they only stated those very facts in detail and therefore we

find nothing in their depositions to discredit their evidences.

Trustworthiness of their deposition and truthfulness of the manner of

their testimonies is convincing, clear and cogent. Even though they

were subjected to searching cross examination but the accused have

not been able to shake the credibility of their evidences at all. Thus in

our view presence of all the appellants at the spot is well established

along with their participation in the incident which is well perceptible

from prosecution evidences. Learned counsel for the appellants also

failed to point out any circumstance which can erode prosecution

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evidences from its credence. All of them steadfast the test of cross

examination and we find their statements to be truthful, unblemished

and confidence inspiring.

Now coming to the only worth considering submission of the

appellants counsel which has been mooted before us is as to

whether section 34 I.P.C. is applicable on the facts of the present

case or not?

Analyzing and cogitating over the said submissions and judging

it in the light of the evidences on record especially those of fact

witnesses we find much substance in the said submission of the

appellants counsel for the following reasons.

Firstly that there was no enmity between rival sides and even in

respect of money demand no incident prior to the present one ever

happened. Money was due to appellant Surya Kant only and not to

other appellants and hence rest of the two appellants had no motive

to commit the crime. It was the deceased and the informant who had

gone to the house of the appellants demanding payment of balance

amount. Neither Mani Kant nor Chandra Kant had any thing to do

with said payment. While money was demanded an altercation

ensued between accused, deceased and the informant. Deceased

had a muscular body and was in the prime of his youth. He was a

student and he had gone to the house of the appellants for the

purpose that the balance payment be made good. In such fact

situation likelihood of tirade turning ugly is quite possible. Altercation

must have been loaded with words of temerity or faux pas which

must have affronted two other appellants Chandra Kant and Mani

Kant. During course of that heated verbal onslaught, it is alleged that

all of a sudden two of the appellants picked up knives but appellant

Mani Kant picked up only a blunt object. Their was no challenge call

nor their was any instigation to murder the deceased. No sooner than

picking up the weapons that all the appellants launched an assault

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on the prosecution side. While two of the appellants assaulted the

deceased but Mani Kant did not even endeavour to beat him. There

is no evidence on record to even remotely suggest that Mani Kant

had the same intention as that of his other two brothers. He must

have felt insulted because of tiradic altercation and therefore his

reaction was that of only to cause hurt to the prosecution side. He

had no idea at all that two of his brothers will act in such a manner

as to murder the deceased. Injuries inflicted by him on the informant

and Devi Chand also does not suggest that he had an intention to

commit murder. As noted above all the injuries were abrasions and

were simple in nature and consequently the force which was applied

by appellant Mani Kant does not indicate his sharing of common

intention to launch a murderous assault. Force applied by him while

wielding his lathi was so meager that it did not even cause contusion

or lacerated wound. No doubt injured persons must not be static to

suffer assault but total absence of any such injury can also be not

lost sight of. For the applicability of section 34 I.P.C. sharing of

common intention is sine qua non. Without such sharing of intention

section 34 I.P.C. has got no applicability. Intention to be shared has

to be present from prior to the incident or it can even develop at the

spur of the moment. So far prior concert of mind is concerned that

can be proved by leading evidence for census-id-idem for which

there is complete absence of evidence on record. Incident happened

all of a sudden without any pre-meeting of minds and therefore it is

difficult to conclude that all the appellants shared the same intention

with each other. In this respect reference to some of the decisions

by the apex court will be appropriate and therefore we refer some of

those judgments herein below.

In the decision of Badruddin versus State of U.P: AIR 1998

SC 3243 apex court has held as under:-

“ In the instant case, it is stated that the deceased alone was

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assaulted by Nizamuddin with knife and Siddiqui with lathi. The

appellant dealt blows with lathi not to the deceased but to other

witnesses. There is no direct evidence of common intention. There is

no case nor evidence of exhortation by him or of the fact that with a

view to keep the said witnesses away from interfering and to

facilitate Nizamuddin to kill the deceased the appellant assaulted the

said witnesses. Having regard to the facts and circumstances of the

case, it is not possible to arrive at the conclusion that the appellant

and others shared common intention to kill the deceased Shaukat Ali.

Consequently, we are unable to sustain the conviction of the

appellant for the offence under Section 302/34, IPC. However, on the

facts, we confirm the conviction and sentence under Section 323/34,

IPC awarded by the Courts below. As the appellant has already

served out the sentence for the offence convicted, therefore, he is

directed to be released forthwith unless he is required to be detained

in any other case”

In Ram Tahal versus State of U.P.: AIR 1972 SC 254 it

has been held as under:-

“There is no doubt that a common intention should be anterior

in time to the commission of the crime showing a pre-arranged plan

and prior concert, and though, it is difficult in most cases to prove

the intention of an individual, it has to be inferred from the act or

conduct or other relevant circumstances of the case. This inference

can be gathered by the manner in which the accused arrived on the

scene and mounted the attack, the determination and concert with

which the beating was given or the injuries caused by one or some of

them, the acts done by others to assist those causing the injuries the

concerted conduct subsequent to the commission of the offence for

instance that all of them had left the scene of the incident together

and other acts which all or some may have done as would help in

determining the common intention. In other words, the totality of the

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circumstances must be taken into consideration in arriving at the

conclusion whether the accused had a common intention to commit

an offence with which they could be convicted. This Court had in

Krishna Govind Patil's case, (1964) 1 SCR 678 = (AIR 1963 SC 1413)

already referred to earlier, held that the pre-arranged plan may

develop on the spot during the course of the commission of the

offence but the crucial circumstance is that the said plan must

precede the act constituting the offence. If that be so before a Court

can convict a person under Section 302 or S. 304 read with S. 34 of

the I.P.C. it should come to a definite conclusion that the said person

had a prior concert with one or more persons named or un-named

for committing the offence.”

In Sewa Ram and others versus State of U.P.: AIR

2008 SC 682 apex court had held as under :-

“ Section 34 has been enacted on the principle of joint liability

in the doing of a criminal act. The section is only a rule of evidence

and does not create a substantive offence. The distinctive feature of

the section is the element of participation in action. The liability of

one person for an offence committed by another in the course of

criminal act perpetrated by several persons arises under Section 34 if

such criminal act is done in furtherance of a common intention of the

persons who join in committing the crime. Direct proof of common

intention is seldom available and, therefore, such intention can only

be inferred from the circumstances appearing from the proved facts

of the case and the proved circumstances. In order to bring home

the charge of common intention, the prosecution has to establish by

evidence, whether direct or circumstantial, that there was plan or

meeting of minds of all the accused persons to commit the offence

for which they are charged with the aid of Section 34, be it pre-

arranged or on the spur of the moment; but it must necessarily be

before the commission of the crime. The true concept of the section

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is that if two or more persons intentionally do an act jointly, the

position in law is just the same as if each of them has done it

individually by himself. As observed in Ashok Kumar v. State of

Punjab [1977(1) SCC 746] the existence of a common intention

amongst the participants in a crime is the essential element for

application of this section. It is not necessary that the acts of the

several persons charged with commission of an offence jointly must

be the same or identically similar. The acts may be different in

character, but must have been actuated by one and the same

common intention in order to attract the provision.“

The representative case in this respect is Jagannath versus State

of M.P.:2007 SC (Supp) 905. In the said decision it has been held

as under:-

“13. A common intention may be developed on the spot, but

the same must not only be developed but also must be shared with

the other accused.

14. Concededly, the occurrence took place all of a sudden. The

act of theft on the part of the accused persons was complete. They

had been taking away the wood. They were followed by the

deceased and PW-11. They must have been obstructed from taking

away the wood by them as the same were in their possession. It was

at that juncture the deceased was said to have been assaulted by

Prabhudayal and Dhan Singh. In a situation of this nature where the

accused persons had acted at the spur of the moment having regard

to the altercations which had preceded the incident, in our opinion, it

is difficult to lead to the conclusion that Prabhudayal and the

appellant had developed a common intention of causing death of the

deceased. If the statements of the prosecution witnesses PWs 2, 11

and 12 are to be believed, they acted almost at the same time. We

may notice that the third accused Dhan Singh has been acquitted.

The State has not preferred any appeal there against. The High Court

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has also convicted Prabhudayal under Section 302 of the Indian

Penal Code holding that the same was his individual act. In this

situation, we are of the opinion that it is difficult to uphold the

contention of Ms. Makhija that the appellant is guilty under Section

302/34 of the Indian Penal Code.”

In the case of Ramashish Yadav and others versus State

of Bihar:1999 SC 3830 it has been held as under :-

“3. Coming to the question of applicability of Section 34 for the

murder of Tapeshwar, we find from the evidence of the three eye-

witnesses that while Ram Pravesh Yadav and Ramanand Yadav

caught hold of Tapeshwar, accused Samundar Yadav and Sheo Layak

Yadav came with gandasa and gave blows on the head of Tapeshwar,

as a result of which Tapeshwar died. Section 34 lays down a principle

of joint liability in the doing of a criminal act. The essence of that

liability is to be found in the existence of common intention

animating the accused leading to the doing of a criminal act in

furtherance of such intention. The distinct feature of Section 34 is

the element of participation in action. The common intention implies

acting in concert, existence of a pre-arranged plan which is to be

proved either from conduct or from circumstances or from any

incriminating facts. It requires a pre-arranged plan and it

presupposes prior concert. Therefore, there must be prior meeting of

minds. The prior concert or meeting of minds may be determined

from the conduct of the offenders unfolding itself during the course

of action and the declaration made by them just before mounting the

attack. It can also be developed at the spur of the moment but there

must be a pre-arrangement or premeditated concert. This being the

requirement of law for applicability of Section 34, IPC, from the mere

fact that accused-Ram Pravesh Yadav and Ramanand Yadav came

and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo

Layak Yadav came with gandasa in their hands and gave blows by

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means of gandasa, it cannot be said that the accused Ram Pravesh

Yadav and Ramanand Yadav shared the common intention with

accused Samundar Yadav and Sheo Layak Yadav. Consequently,

accused Ram Pravesh Yadav and Ramanand Yadav cannot be held

guilty of the charge under Section 302/34, IPC but accused

Samundar Yadav and Sheo Layak Yadav did commit the offence

under Section 302/34, having assaulted deceased Tapeshwar on his

head by means of gandasa on account of which Tapeshwar died. The

accused-Ram Pravesh Yadav and Ramanand Yadav are, therefore,

acquitted of the charges levelled against them and they be set at

liberty forthwith.”

In the instant appeal all the appellants were empty handed

when the verbal exchange of war started. In the midst of such wordly

duel that the appellants picked up arms and started assaulting

without any pre-consensus. One of the appellant Mani Kant did not

make any endeavour to assault the deceased from his weapon

(sariya). During the course of the trial, the witnesses have also

testified that Mani Kant appellant did not make any assault on the

deceased albeit he had assaulted the informant and Devi Chand

causing them simple injuries. In view of such categorical depositions

by fact witnesses we find it highly unsafe to bring the case of that

appellant Mani Kant within the ambit of section 34 I.P.C. and anoint

him with the common intention to commit murder of deceased and

thereby convict him under Section 302/34 I.P.C. As noted above for

the applicability of Section 34 I.P.C., meeting of minds (census-Id-

Idem) is sine quo non, which was absent in case of Mani Kant

appellant. His case therefore falls apart from the purview of sections

302/34 I.P.C. So far other two appellants Surya Kant and Chandra

Kant are concerned there are positive trustworthy credible evidences

on record well supported by depositions of formal witnesses that

each of them had caught hold of one hand of deceased and both of

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them had repeatedly stabbed him on vital parts of his body causing

him fatal injuries. Each of them, therefore,definitely developed and

shared the common intention to murder the deceased, at the spot,

at the spur of the moment.

For rest of the arguments advanced before us it was conceded

by the counsel for the appellants subsequently that they are

unwarranted and will not affect the out come of this appeal and

therefore we eschew them from a detailed discussion and only

observe this much that those were raised only to be mentioned as

those submissions are wholly unmerited. Case laws relied up by the

appellants counsel Shambhoo Singh Vs. State of Rajasthan

2008 (11) SCC 637 is altogether on different facts .In that case

apex court found that it was a case of sudden fight and there was

mutual provocation and in such a view offence was diluted to be one

under culpable homicide not amounting to murder. That is not the

situation before us. Here appellants themselves had started the

assault on unarmed persons on a very trivial issue. Moreover the

merciless manner in which empty handed deceased was assaulted by

the two appellants Surya Kant and Chandra Kant and the venomous

manner of his stabbing clearly projects the intentions haboured by

those two appellants, which squarely falls in more than one category

of section 300 I.P.C. More over present is not a case of sudden fight.

Another decision Daya Shankar Vs. State of M.P.: AIR

2009 SC 1426 is also of no help to the appellants who were armed

with knives. The facts of that case had a different texture altogether.

After noting peculiarity of facts Apex Court opined that Section 34

I.P.C. had got no applicability on the facts of that case. In this

respect, we would like to refer paragraph 9 of the aforesaid

judgment, which is as follows:-

"The evidence of PWs 2 and 3 did not attribute any overt act

to the appellant. The mere fact that he was in the company of the

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accused who were armed would not be sufficient to attract Section

34 I.P.C. It is undisputed that appellant was not armed and he had

no animosity with the deceased. This position is also accepted by the

prosecution. Additionally, the stand that he pulled the leg of the

deceased has not been established."

The above referred portion makes a distinguishable distinction

between the present appeal with that case.

Coming to the last decision Lachman Singh Vs. State of

Haryana: 2006 Cr. L.J. 4041, we find that the said judgment

again does not help present appellants. Paragraph 8 of the aforesaid

judgment creates a distinction between the facts of the present

appeal with that decision and hence we reproduce said para below:-

“8. In the present appeal stands taken before the High Court

were reiterated by the learned counsel for the parties. We find that

the evidence of the witnesses, more particularly, injured witnesses

have been carefully analysed by the Trial Court and the High Court.

There is no discrepancy of any vital nature which will affect credibility

of the witnesses. There is no doubt that some minor discrepancies

are noticed. But that does not in any way dilute the otherwise cogent

evidence of injured witnesses about the role played by two of the

accused persons i.e. Lachman Singh and Dev Singh. So far as the

bullets not matching the seized gun is concerned, the trial Court and

High Court have dealt with this aspect in great details. As rightly

submitted by learned counsel for respondent-State, recovery of the

gun was made on being pointed out by the accused. To draw a red

herring he pointed out to a different gun, so that the plea as

presently urged can be taken. We, however, find that the evidence is

inadequate so far accused Randhir Singh is concerned. It was

prosecution case that he had thrown brickbats which caused injury

on Vikram Singh (PW?7). But the same is clearly ruled out by the

doctor's evidence to the effect that none of the injuries can be

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caused by brickbats. Additionally, his role of presence at the spot has

not been established by any cogent and credible evidence.

Therefore, conviction so far as he is concerned, cannot be sustained

in the appeal filed by him i.e. Criminal Appeal No. 350 of 2005 is

allowed.”

At this point we also note that it is the prosecution case at the

trial that Surya Kant and Chandra Kant did not assault informant and

injured Devi Chand at all. They only stabbed the deceased wielding

their knives. They even did not attempt to cause hurt to any of the

person from the prosecution side. Since they did not share common

intention to cause hurt their conviction under section 323/34 I.P.C.

also is illegal and unwarranted. However both of them did share

common intention to murder the deceased for which they have been

convicted and sentenced.

Summing up our discussion we find that section 34 has no

application in the case of appellant Mani Kant and his convictions and

sentences under Section 302/34, and 323/34 I.P.C. is indefensible

and can not be affirmed, instead he is liable to be convicted under

section 323 I.P.C. simpliciter for causing simple hurt to the informant

PW1 and Devi Chand PW2. Similarly conviction and sentence of rest

of the two appellants Surya Kant and Chandra Kant under section

323/34 I.P.C. also can not be sustained and they are liable to be

acquitted of that charge. However their conviction under section

302/34 I.P.C. and imposed sentence of life imprisonment with fine of

Rs. 5000/= and in default of payment of fine to undergo six months

further imprisonment have been correctly recorded and in that

respect their this appeal is meritless and deserves rejection.

Instant appeal is therefore partly allowed. Appellant Mani Kant

is acquitted of charges under section 302/34, 323/34 I.P.C. and

instead he is convicted under section 323 I.P.C. simpliciter. He had

already remained in jail for for nearly two months and ten days and

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since the incident occurred seven years ago and the maximum

sentence awarded on him under section 323/34 was only six months,

therefore in our view period of imprisonment already undergone by

him will meet the ends of justice. Conviction and sentence of other

two appellants Surya Kant and Chandra Kant under section 323/34

I.P.C. is also hereby set aside and they are acquitted of the said

charge but their conviction and sentence under section 302/34 I.P.C.

is hereby maintained and to that extent their this appeal is dismissed.

Appellant Mani Kant is on bail. He need not surrender. His

personal bond is canceled and sureties discharged.

Appellants Surya Kant and Chandra Kant are already in jail.

They shall remain in jail to serve out remaining part of their

sentence.

Let a copy of this order be transmitted to trial Judge for his

intimation.

Dt.31.8.2009

AKG/-5048/04