JUDGMENT

JUDGMENT:—Special leave granted limited to the question, whether Appellants Nos. 2 and 3 shared the common intention with appellant No. 1 for committing murder of Gunjarya son of Dhanya.

2. If may at once be mentioned that the special leave petition on behalf of petitioner No. 1 was dismissed at the admission stage.

3. A few facts necessary to dispose of the contention raised oil behalf of appellants Nos. 2 and 3 may be stated. At a festival described as Indal all altercation took place between deceased Gunjarya on one hand and appellants Nos. 2 and 3 Oil the other oil account of the profane language used by appellants Nos. 2 and 3 who were then inebriated. Both of them were slapped by Gunjarya. The dispute consequent upon this altercation was settled by the local panchayat in which both appellants Nos. 2 and 3 on one hand and deceased Gunjarya on the other, were fined Rs. 5/- each : Oil May 26, 1981 when deceased Gunjarya accompanied by his two brothers Gobji and Pandys in company of P. W. 3 Hajarya, P. W. 4 Dajya and P. W. 5 Jahangriya and two others were busy dismantling the but of one Bamanya for the purpose of erecting a new hut on the nearby plot, the three accused came together and declared their intention of avenging the insult inflicted oil them by Gunjarya at the time of Indal festival. At that time accused No. 1 was armed with a Dharya while appellants Nos. 2 and 3 were unarmed. Immediately all the three of them rushed towards deceased Gunjarya and when Gunjarya tried to escape he was chased. Original accused No. 1 gave a blow with the Dharya on the forehead of Gunjarya while appellants Nos. 2 and 3 were alleged to have pelted stones at Gunjarya resulting in causing two lacerated wounds to deceased Gunjarya. On these allegations all the three of them were-tried by the learned Additional Sessions Judge, Dhule in Sessions Case No. 52 of 1981. The learned Judge convicted all the three of them for having committed an offence under S. 302 read with Section 34 of the Penal Code and sentenced each of them to suffer imprisonment for life. All the three of them preferred Criminal Appeal No. 1040 of 1981 in the High Court of Judicature at Bombay. A Division Bench of the High Court dismissed the appeal and confirmed the conviction and sentence of all the three appellants. Hence this appeal by special leave limited to the question hereinbefore set out.

4. The High Court while upholding the conviction of appellants Nos. 2 and 3 for an offence under S. 302 read with Sec. 34 of the Penal Code held that there were three circumstances which clearly provide a clue to the common intention of appellants Nos. 2 and 3 with appellant No. 1 and all the three were reiterated before us by Mr. Bhasme, learned counsel for the State of Maharashtra. We will examine all the three circumstances to decide whether they provide necessary, adequate and sufficient evidence for holding that appellants Nos. 2 and 3 shared the common intention to commit murder of Gunjarya with appellant No. 1.

5. The three circumstances relied upon by Mr. Bhasme in support of his submission are: (i) that the three amused came together; (ii) that all the three accused had a common motive to avenge the incident that occurred at Indal festival; and (iii) that when the victim of assault Gunjarya tried to escape all the three of them chased Gunjarya.

6. It must straightway be conceded that the three appellants came together near the place where deceased Gunjarya in company of his two brothers, some witnesses and some companions were working and where the incident occurred. Standing by itself this circumstance may be sufficient to suggest that the three had some common intention. The question is whether they had the common intention to commit murder of Gunjarya. If the three shared the common intention to commit murder of Gunjarya as is now contended obviously appellants Nos. 2 and 3 would not come unarmed. It is admitted by the prosecution that at that time appellant No. 1