important point
A common intention may be developed on the spot, but the same must also be shared with the other accused.

judgment

S.B. SINHA, J. —

1. Appellant before us with one Prabhudayal was tried for alleged commission of an offence under Section 302/34 of the Indian Penal Code. A First Information Report was lodged by one Dhoomsingh (PW-11) at Obeydullaganj Police Station on 16.09.1986 alleging that he and Ramsingh (since deceased) had collected pieces of wood from the bank of a river near their house, but the appellant and Prabhudayal, however, came there and committed theft thereof. An altercation took place. While the altercation was going on, Prabhudayal allegedly inflicted one axe blow on the head of the deceased causing an injury on his person. Two other prosecution witnesses, viz., Naval Singh (PW-2) and Hukumchand (PW-12) came to the scene of occurrence. They were also allegedly assaulted and consequently sustained injuries. The deceased while being taken to the police station breathed his last on the way.

2. Before the learned Trial Judge, the accused raised a defence that the deceased Ramsingh and Dhoomsingh (PW-11) accompanied by some other persons came to the house of Prabhudayal and asked his wife Kasturibai, who examined herself as DW-1, to serve them chicken and on her refusal to do so, they tried to outrage her modesty; injuries were caused to her in the process. A criminal case was instituted in that behalf. The incident is said to have taken place because of the said fact.

3. The learned Trial Judge, however, relying on the testimonies of the aforementioned witnesses and opining that they are injured witnesses, came to the conclusion that as the prosecution evidence was corroborated by medical evidence, the accused must be held to be guilty for the alleged commission of offence under Section 302 of the Indian Penal Code, and were sentenced to undergo rigorous imprisonment for life. An appeal preferred thereagainst by the accused has been dismissed by the High Court by reason of the impugned judgment.

4. Before embarking upon the questions raised before us, we may, however, notice that along with the appellant and the said Prabhudayal, one Dhan Singh was also prosecuted. He, however, was acquitted. The said judgment has not been questioned.

5. In its judgment, the High Court opined as under:

“From the evidence of the three eye witnesses of the prosecution corroborated by the medical evidence, it is amply proved that accused Prabhudayal caused the death of Ramsingh by causing injury by the axe on his head. This was a serious injury. Therefore, accused Prabhudayal must be held to have caused the death of Ramsingh intentionally. So far as appellant Jagannath is concerned, he has been convicted by the Trial Court with the aid of Section 34 I.P.C. It is found from the testimony of Dhoom Singh (P.W. 11), Hukumchand (P.W. 12) and Naval Singh (P.W.2) that accused Jagannath caused injuries to Dhoom Singh (P.W. 11) and Naval Singh (P.W. 2). Accused Jagannath was armed with an axe. He came with accused Prabhudayal. He caused injuries to Dhoom Singh (P.W.11) and Naval Singh (P.W.2) in furtherance of the common intention. From these facts it is borne out that he had also formed common intention with accused Prabhudayal to cause the death of Ramsingh. The trial court has rightly found appellant Jagannath guilty for the offence punishable under Section 302/34 I.P.C.”

6. Mr. Balraj Dewan, learned counsel appearing on behalf of the appellant contended that having regard to the prosecution case itself and the evidence brought on record by the prosecution, the appellant herein cannot be said to have shared any common intention with Prabhudayal for causing the murder of the deceased Ramsingh.

7. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, however, supported the impugned judgment.

8.A short question, therefore, which arises for our consideration is as to whether the appellant is said to have shared any common intention with Prabhudayal in causing the death of Ramsingh.

9. For the aforementioned purpose, we may accept the st