IMPORTANT POINT
Scope and ambit of section 34 IPC discussed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of the Division Bench of the Hon’ble High Court of Uttaranchal at Nainital upholding the conviction of four appellants who had filed Criminal Appeal no.1275 of 2001. One of the appellants Khushi Ram died during the pendency of the appeal. By the impugned judgment, the High Court upheld the conviction so far as other appellants Chaman, Vinod Kumar and Naresh are concerned. The first two are appellants in the present appeal. No appeal has been preferred by accused Naresh. Each of the accused was convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to imprisonment for life. Appellant Vinod was additionally convicted for offence punishable under Section 323 IPC and sentenced to imprisonment for six months.

2. Prosecution version in a nutshell is as follows:

On 09.07.1985, at about 5:00 P.M., Jaswant Singh (hereinafter referred to as the ‘deceased’) was returning to his home, when he met Rani, daughter of Onkar Das and they started talking to each other. Appellant Chaman, brother of Rani, came from his house hurling abuses at Jaswant Singh, saying “TU BAHUT BADA SAAND BANTA HAI, RUK TUJHE MAJAA CHAKHATAA HUN” (You think yourself to be a big bull, wait I will teach you a lesson). Thereafter, on the same day, at about 1:30 A.M. in the intervening night of 9th/10th of July, 1985, when Jaswant-deceased, his father Chamela Ram (P.W. 2), brother Data Ram (P.W. 1), were sleeping in the verandah of their house, they woke up on hearing the barking of their dog and flashed their torches and saw that appellants Naresh, (armed with a gun), Vinod, (armed with a KHUKRI-a sharp edged weapon), Chaman, (armed with SAINTA-a sharp edged weapon) and Khushi Ram, (armed with a country made pistol), entered their house. Appellant Chaman, asked Jaswant to stand up. On which, Jaswant along with Data Ram, got up from their cots. Meanwhile, Chamela Ram (P.W.2) raised an alarm “BACHAO! BACHAO!! (Save! Save!!). Naresh pointed the gun at him. Chamela Ram caught hold the barrel of the gun to save himself. On this, appellant Vinod gave him blows with the butt of Khukri. Meanwhile, appellant Chaman struck a blow with SAINTA (a sharp edged weapon) on the person of Jaswant, who ran to save his life. However, Jaswant could not go far and fell down near the house of Nain Singh. By then, witnesses Bhuru (P.W.5), Ramu, Isam (P.W.6), Nakli (P.W.7) and Nain Singh had reached there. They also flashed their torches and saw that appellant Vinod, struck a blow with the Khukri on injured Jaswant. Thereafter, all the four appellants ran away from the place of occurrence. Jaswant Singh, succumbed to the injuries on the spot, near the house of Nain Singh. A written report (Ext. A-1) of the incident was got scribed by Raj Kumar (P.W. 4) by Chamela Ram (P.W. 2), which was lodged against all the four accused persons with the police station Doiwala on 10.07.1985, at about 5:30 A.M. The distance between the place of occurrence (Chandi Plantation) and the police station is 15 kms. On the basis of said report (Ext. A-1), its check report (Ext. A-18) was prepared at the police station and necessary entry was made in the general diary, a copy of which is Ext. A-17. Crime No.117 of 1985 was registered against all the four accused persons, for the offence allegedly committed by them under Section 302 of I.P.C. P. W. 8 H.C. Panda, Sub Inspector, after aforesaid report was lodged with the police station, proceeded to the place of occurrence on 10.07.1985 and took the dead body of Jaswant in his possession and prepared the inquest report (Ext. A-4). He also prepared site plan (Ext. A-5), filled police form No.13 (Ext. A-6), prepared letter (Ext. A-7) addressed to Chief Medical Officer, requesting for post mortem examination of the dead body. H.C. Pandey, Sub-Inspector (P.W.8) also took blood stained ‘BANIYAN’ (undershirt) Ext.8 in