IMPORTANT POINT
Where accused was convicted for offence of murder by his having shared a common intention with co-accused his father but there were considerable discrepancies in evidence of witness as to language used by accused in causing exhortation to co-accused and not such act of exhortation was attributed in initial report, accused could not be convicted for murder with aid of Section 34 IPC.

JUDGMENT

Santosh Hegde, J.-The appellant herein and his father were charged of an offence punishable under Section 302 read with Section 34 IPC before the District and Sessions Judge, Jodhpur on an allegation of having committed the murder of Devendra Raj Singhvi who was a tenant in the building owned by the appellant s father. During the pendency of the trial, the father of the appellant Hazi Mukhtiyar Ali died, hence, the trial as against him abated. The learned Sessions Judge after trial found the appellant guilty of the offence as charged and convicted him under Section 302 read with Section 34 IPC. An appeal filed by the appellant before the High Court of Judicature for Rajasthan at Jodhpur having failed, the appellant is now before us in this appeal.

2. The facts necessary for the disposal of this case are as follows:

The deceased accused Hazi Mukhtiyar Ali was the owner of a building named Hazi Building situated at Chopasni Road, Jodhpur. The deceased and his brother Anil Kumar (PW-1) had taken one of the shops in the said building for running their business. It is the prosecution case that the deceased and his brother had undertaken certain repairs of the shop without the consent of the landlord because of which there was some dispute between the deceased and his brother on one side and the appellant and his father on the other. It is stated that on 23.8.1991 some repairs were being done on the roof of the said shop by the deceased and at about 4.45 p.m. when the work had been completed the deceased and PW-1 heard some sound of throwing away of iron trays because of which both of them went to the roof of the shop and found the appellant and his father quarreling with the labourers. It is the case of the prosecution that with the intervention of the deceased and PW-1, the accused and his father came down with the deceased and his brother and went to their respective shops. Shortly, thereafter, it is alleged that the appellant came to the shop of the deceased asking the deceased and PW-1 to come to his father s shop since his father wanted to talk to them. Therefore, the deceased and PW-1 went from their shop to the shop of the accused in the company of Mahesh Baheti (PW-5) and Dalpat Raj Bhansali (PW-6). At that time it is stated that the father of the appellant was standing inside the shop holding a gun and the appellant said to him that these persons are instigating other tenants not to pay the rent. On hearing the same, it is stated that the said Hazi Mukhtiyar Ali fired a shot aimed at Devendra Raj Singhvi which caused an injury below the neck in the front, consequent to which the deceased fell down and died on the spot.

3. There is some controversy in regard to the starting of the investigation in this case. According to the material available on record, PW-15 Hari Singh who was then the Officer-in-Charge of the Sardarpur Police Station received information on 23.8.1991 at about 5 p.m. that there has been a firing at Hazi Motors so after recording the report in the Roznamcha of the Police Station, he along with his staff proceeded to the spot. He found the dead body of Devendra Raj Singhvi on the doorsteps of the shop of the accused and made inquiries from the people present there as to how did the incident in question happen and he arrested the appellant and Haji Mukhtiar Ali under section 41(1) of the Cr.P.C. after recording a Fard Ex. P-8. He says that he seized the gun used in the crime after getting the same unloaded from Haji Mukhtiar Ali. He then sent the accused persons to the Police Station. It is at this stage this witness states that PW-14 Chain Singh, then the Inspector-in-charge of Partap Nagar Police Station arrived with his staff. There is no dispute that PW-14 arrived at the spot after PW-15 had come to the spot and had arrested the accused. The defence tried to plead that the investigation had started by recording of the report in the Roznamcha of the Sardarpur Police Station consequent to which PW-1