IMPORTANT POINT
Presence of common intention must be established for attracting section 34 IPC.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Appellant (Accused No.3) along with Suresh (Accused No.1) and Ranganatha (Accused No. 2) was charged with for commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, ‘IPC’) on the accusation that they had due to previous ill-will, in furtherance of their common intention, caused the death of one Venkatesh (‘the deceased’). Accused No. 1 assaulted the deceased with an iron rod on his head and other parts of the body and accused Nos. 2 and 3 assaulted him with fists and kicks and, thus, caused hurt and voluntarily caused his death and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC.

3. A wine shop commonly known as ‘Nandi Wines’ is situated at Nandi village behind Yoganandeshwara Temple. Appellant was an employee of the said shop. Accused No.2 was supplier of wine to the said shop and accused No. 1 was a customer thereof.

Deceased was an agriculturist. He ordinarily used to return home at 7:00 p.m. However, on the date of incident, i.e., on 13.10.2000, he did not return to his house.

P.W.1- Munegowda, the brother of the deceased, on being asked by his mother at about 8.30 p.m. went out to search for him and after finding him sitting in the ‘circle’, returned home. But the deceased did not come back.

Again at about 10’O clock in the night, P.W. 1 went in search for him. When he reached near ‘Nandi wines’, he found the accused persons were quarrelling with the deceased. Accused No. 1 assaulted the deceased with an iron rod on the back of his head; accused no. 3 - appellant herein, kicked him and accused no. 2 gave fist blows on his face. Deceased was found to have sustained injuries. He was taken to Government Hospital of Chickballapur. The Doctor sent information thereabout to P.W.13 Thimarayappa, who was working as Head Constable and was the Station House Officer of Chikaballapur Rural Police Station, at the relevant time at 12.00 midnight on 13.10.2000. He immediately went to the Hospital and recorded the statement of P.W.1. He returned to the police station and registered the said complaint in Crime No. 230/2000, for the offence punishable under Sections 323, 324 and 307 of the IPC; he prepared FIR and sent the same to the jurisdictional court. Thereafter, as advised by the Doctor, deceased was taken to NIMHANS at Bangalore. He expired on the next day.

4. The First information Report was lodged by the P.W.1, the brother of the deceased. Another witness Munivenkategowda claiming to be an eyewitness, examined himself as P.W. 2. Manjunatha (P.W. 3) and K. Srinivas (P.W. 7) were also present at the time of the incident. A general allegation was made that there was some previous ill-will between the parties.

5. Indisputably, the deceased used to take drink occasionally. He (P.W.1) could not state the reason as to whether the accused persons had any animosity with the deceased. He admitted that he had not lodged any complaint with regard to the earlier incident.

6. The learned trial judge convicted all the accused persons for commission of an offence punishable under Section 302 read with Section 34 of the IPC.

7. They preferred an appeal before the High Court. By reason of the impugned judgment, the same has been dismissed.

8. This Court issued a limited notice only in respect of the present appellant with regard to the nature of offence.

9. Mr. Basava Prabhu S. Patil, learned Counsel in support of this appeal raised the following contentions:

i. The learned single judge as also the High Court failed to consider that the prosecution witnesses did not make any statement as regards the formation of any common intention amongst the accused so as to hold them guilty for commission of offence punishable under Section 302 read with Section 34 of the IPC.

ii. All the witnesses merely stated that the appellant had only kicked the deceased and he was wholly unarmed.

iii. The recovery of an iron rod is