SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and M.B. Shah, JJ.

Criminal Appeal No. 1240 of 1997. D/d. 2.12.1999.

Raghubir - Petitioner

Versus

State of U.P. - Respondent

Indian Penal Code, 1860, Sections 302/34 and 323 - Common intention - Main accused armed with gun and pistol attacking the deceased and killing them - PW who was following the deceased attacked by the accused-petitioner sustained minor injuries - In view of the entire scenario as narrated by the eye-witnesses it is not possible to hold that appellant shared a common intention with the two other accused persons who have been convicted under Section 302 Indian Penal Code for use of their gun and pistol in killing the accused persons - Conviction and sentence of the appellant under Sections 302/34 set aside.

[Para 4]

ORDER

G.B. Pattanaik, J. - The appellant Raghubir has been convicted under Sections 302/34 Indian Penal Code and sentenced to imprisonment for life. He has also been convicted under Section 323 for causing simple injury to PW 1 and sentenced to imprisonment for three months.

2. Along with appellant Raghubir two other accused persons who were tried for the same incident, namely, Ram Autar and Ram Charitra were convicted under Section 302 Indian Penal Code for having committed the murder of Jagannath and Ram Saran. Another accused person who also was convicted by learned Sessions Judge under Sections 302/34 Indian Penal Code, died during the pendency of appeal in the High Court and therefore the appeal stood abated against him. Ram Autar and Ram Charitra did not prefer any appeal as appears from the inquiry made, but we are not concerned with them in the present appeal.

3. In the present appeal we are concerned with the legality of the conviction of appellant Raghubir under Sections 302/34 Indian Penal Code. His conviction under Section 323 Indian Penal Code and sentence passed thereunder for causing simple injury to PW 1 is not assailed before us and rightly so. The conviction of appellant Raghubir for the offence under Sections 302/34 is based upon the oral testimony of the two eyewitnesses PWs 1 and 2. It is contended by the learned counsel for the appellant that the sequence of events as narrated by PWs 1 and 2 will certainly not disclose any common intention of appellant Raghubir with that of Ram Autar and Ram Charitra who caused the murder of Jagannath and Ram Saran by using gun and pistol in their hands, notwithstanding the fact that the appellant was with them and he is alleged to have assaulted PW 1.

4. To appreciate the aforesaid contention, we have been taken through the evidence of PWs 1 and 2. PW 1 was actually injured by a lathi-blow said to have been given by appellant Raghubir. It transpires from the evidence of the said witnesses that when the two deceased and PWs 1 and 2 were returning to their house, after closing the shop, through a gali at about 6 p.m., the two accused persons Ram Autar and Ram Charitra, arrived at the scene of occurrence with gun and pistol in their hands and both of them gave out to finish all those belonging to the complainant party with "goli" and so saying both Ram Autar and Ram Charitra fired at the two deceased Jagannath and Ram Saran. PW 1 who was following the said deceased persons, when tried to run away from the place, the appellant is said to have assaulted him by means of a lathi on his head. From the evidence of the doctor (PW 9) who examined PW 1, it appears that the said PW 1 sustained a very minor injury on his head, which is a scratch. In this view of the entire scenario as narrated by the eyewitnesses PWs 1 and 2, it is not possible for us to hold that appellant Raghubir shared a common intention with the two other accused persons who have been convicted under Section 302 Indian Penal Code for use of their gun and pistol in killing the deceased persons. We accordingly set aside the conviction of sentence and sentence of appellant Raghubir of the charge under Sections 302/34 Indian Penal Code. His conviction under Section 323 Indian Penal Code, however, for causing simple injury on PW 1 is upheld.

5. The appeal is accordingly allowed.

Appeal allowed.