Important Point
The existence of a common intention amongst the participants in a crime is the essential element for application of this Section. As a result when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. Therefore Section 34 is applicable even if no injury has been caused by the particular accused himself.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Three appellants before the Rajasthan High Court alongwith one Giluda faced trial for alleged offence under Section 302 read with Section 34 of the Indian Penal Code (in short the ‘IPC’). A Division Bench of the Rajasthan High Court Jaipur Bench directed acquittal of the Giluda and upheld the conviction so far as the appellants before it are concerned. Each one of them was found guilty of offence punishable under Section 302 read with Section 34 IPC and was sentenced to undergo imprisonment for life. 23 persons were named in the First Information Report (in short the ‘FIR’) but after investigation police filed charge sheet against seven of them. The appellants before High Court along with three others, namely, Babu Ram, Raghuveer and Kailash faced trial. Said Babu Ram, Raghuveer and Kailash were acquitted by the trial court. Each of the appellants was sentenced to undergo imprisonment for life each to pay fine about Rs.1,000/- with default stipulation. Only the present appellant has questioned legality of the judgment of the High Court.

2.Background facts in a nutshell are as follows :

On 1.4.2000 at 4.30 p.m. First Information Report (in short the ‘FIR’) with regard to the incident came to be lodged on the same day at 7.30 p.m. by Bhonr Singh, brother of deceased Prabhu and Reghuveer. It was a written report on the basis of which formal FIR came into being. Bhonr Singh in the FIR lodged by him stated that between 4 to 5 in the evening on 1.4.2000, his brother Prabhu and Raghuveer were coming back from Thanagazhi after attending hearing of a case. When they were going from Mandawara to Talvriksha, on the outskirts of the village, because of personal enmity, Girdhari son of Dola Ram Rebari, Hanuman, Lala and their younger brother’s sons of Girdhari Rebari, Tulsa wife of Girdhari, Hardeva, Giluda, Gopal, Shimbhu sons of Hardeva, Santi wife of Hardeva and Hardeva himself, Ramjilal, Manaram, Pancha, Yada sons of Bhora Jat, Prabhu, Maharam sons of Shankar and relations of Girdhari Rebari whose names he did not know, Dholi wife of Sunda Ram, Sundaram and his four sons started beating Prabhu and Raghuveer with lathis, farsi, Jell etc. and injured them. At the spot, the occurrence was witnesses by Ranveer, son of Dilip Singh, Hanuman, son of Gangaram, Girvar Singh, son of Mukhram Singh, Bhima, son of Mukhram, Harinarain Gujar and Ramniwas, sons of Phoola Gujar. He was taking bath in Talviksha when the occurrence had taken place. He was told about this occurrence by Sugla Dhankar who told him that above named persons had beaten his brothers. He then straightway went to lodge the report.

3.After completion of investigation charge sheet was filed. Accused persons pleaded innocence.

4.Placing reliance on the evidence of PWs. 3 & 4 the trial court recorded conviction of the appellant and others, while directing acquittal of Giluda. It is to be noted that before PW 3- the deceased persons purportedly made dying declaration while PW4 was stated to be an eye witness. The High Court found that the evidence of PW 3 to be relevant as he is the person who saw the deceased persons in injured condition and gave water to them while they were gasping for breath. So far as PW 4 is concerned he was related to the deceased persons and, therefore, the Court analysed his evidence in detail and found it to be credible.

5.In support of the appeal, learned counsel for the appellant submitted that the evidence of PWs 3 & 4 cannot be called credible and cogent. PW 4 was related to the deceased. There was no reason as to why the deceased would make any disclosure to PW 3 about the assailants. Further, Section 34 has no application. Learned counsel for the State supported the judgment.

6.There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implic