The main legal point established in the judgment is the principle of joint liability and common intention under Section 34 of the Indian Penal Code in establishing the appellant's participation in the assault and his shared intention with the other accused in committing the crime.

JUDGMENT

CRIMINAL APPEAL NO. 634 OF 2007 [Arising out of SLP (Crl.) No. 2284 of 2006]

S.B. SINHA, J :

Leave granted.

Appellant together with various others were tried for commission of an offence under Section 302 of the Indian Penal Code for causing murder of one Vishava Priya @ Lalla on 13.12.1992. A First Information Report in relation to the said incident was lodged by one Ashok Kumar Sharma. The incident allegedly took place at about 6 p.m. on the said date. In the First Information Report, the complainant alleged that at the said date and time when he himself and his uncle Mahendra Kumar had been getting the Pattis loaded near the road, a tempo (a three wheeler) occupied by one Ajij Naeem, Bhupendra and the appellant arrived. The accused were armed with weapons like lathi, dhariya, ballam and sariya. As there existed a dispute between the deceased and Bhupendra, apprehending that they may kill him, the complainant and the said Mahendra Kumar immediately came to the place of occurrence and found the appellant and others assaulting the deceased. They, on seeing them, ran away. A First Information Report was lodged at about 9.10 p.m. on the same day. Appellant was named therein along with others, wherein it was alleged that he was armed with a gandasi and he along with others assaulted the deceased. It was furthermore alleged that Bhupendra had thrown a stone on the deceased, due to which he suffered a wound on his head. Investigation into commission of the offence was carried out. Upon completion of the investigation, a chargesheet was filed against the appellant as also the said Ajij, Naeem and Bhupendra.

Appellant had been absconding for about seven years. His case was separated from that of the other accused. Two separate trials, thus, took place in relation to the said incident. In the first trial involving the accused named in the First Information Report, other than the appellant, several witnesses were examined. Two of them, viz., Ram Het (PW-8) and Ghasi Lal (PW-9) fully supported the prosecution case. One Pratap Yadav (PW-10) and Alok Tripathi (PW-14), however, were declared hostile therein. In the second trial, where the appellant was involved, they also turned hostile. Appellant was, however, convicted. Four separate appeals were preferred before the High Court.

The learned Sessions Judge as also the High Court, however, relied on the testimonies of the said witnesses as they, when confronted with their earlier statements, accepted that they had deposed against the appellant. According to them, they did so on having been asked to do so by some villagers. The learned Sessions Judge as also the High Court did not rely upon that part of the testimonies of the said witnesses. The High Court, therefore, by reason of the impugned judgment upheld the conviction and sentence of the appellant.

Mr. Mohan Pandey, learned counsel appearing on behalf of the appellant, at the very outset drew our attention to the fact that the deceased was a known criminal and a large number of cases were pending against him and as such the possibility of his being killed by some unknown persons cannot be ruled out. It was submitted that as four prosecution witnesses had turned hostile, the impugned judgment cannot be sustained.

The first informant Ashok Kumar Sharma examined himself as PW-17. He, as noticed hereinbefore, not only named the appellant in the First Information Report but also in his deposition, he categorically stated about the role played by each of the accused persons. He stated that the appellant took part in the entire assault and furthermore inflicted a gandasi blow on the head of the deceased. He knew all the accused persons including the

appellant from his childhood.

Both the learned Trial Judge as also the High Court relied upon the testimonies of the said witness. We see no reason to differ therewith.

Dr. Rakesh Kumar Sharma (PW-13) conducted the post mortem on the dead body of the deceased