IMPORTANT POINT
Scope and ambit of section 34, IPC.

JUDGMENT

Swatanter Kumar, J. —

1. The present appeal is directed against the judgment of the High Court of Judicature of Madhya Pradesh at Jabalpur dated 26th August, 2004 affirming the judgment of the Sessions Judge, Datia, Madhya Pradesh dated 30th December, 1998 convicting all the three accused (appellants/petitioners herein) for an offence under Section 302 read with Section 34 of the Indian Penal Code (IPC) awarding life sentence to each one of them with a fine of Rs.2,000/- each in default thereto to undergo rigorous imprisonment for three years.

2. We must notice that vide order dated 28th May, 2005, the Special Leave Petition in respect of Petitioner Nos.2 and 3, namely, Mahesh Dhimar and Dinesh Dhimar had already been dismissed. Thus, we have to consider the present appeal only in respect of Appellant No.1, namely, Nand Kishore.

3. The learned counsel appearing on behalf of appellant No.1, while impugning the judgment under appeal contended that :

A. the prosecution has not been able to prove its case beyond reasonable doubt. In fact, there is no direct evidence to sustain the conviction of the accused. It is further argued that on the contrary, there are serious contradictions between the statements of the alleged eye- witnesses as well as the medical evidence. The accused, thus, was entitled to benefit of doubt and consequent acquittal.

B. In any case, the appellant could not have been convicted at all for an offence under Section 302 read with Section 34 IPC as he had no common intention with other accused. It is further submitted that he shared neither participated in the commission of the crime nor was he carrying any weapon. On the cumulative reading of the evidence, the ingredients of Section 34 IPC are not satisfied and, therefore, conviction of the appellant is vitiated in law.

4. In order to examine the merit or otherwise of these contentions, it would be useful for us to refer to the necessary facts giving rise to the present appeal.

The incident took place on 18th June, 1997 in the night at about 9-9.30 p.m. at Christian Ka Pura, Bangar Ki Haveli. Some young boys of the vicinity informed the complainant, Brij Kishore Bidua, who was later examined as PW1 that a quarrel has taken place between Mahavir, the deceased, and Mahesh Dhimar near the house of Mahesh Dhimar. Upon receiving this information, Brij Kishore, along with Sunil Badhaulia, went running to the Christian Ka Pura where they saw that Mahesh Dhimar was holding both the arms of Mahavir and Dinesh Dhimar was stabbing him with knife in the chest on the left side and Nand Kishore was also pelting stones at him. After receiving these injuries, Mahavir collapsed to the ground. As per the witnesses even after Mahavir fell, Nand Kishore kept pelting stones on him and then they ran away from the site. Brij Kishore and Sunil carried Mahavir to the hospital on their scooter where the doctor examined him and declared him brought dead. It is the case of the prosecution that Mahavir had some dues to recover from Mahesh Dhimar and to recover that money, Mahavir had gone to Mahesh Dhimar but the fight occurred and without any resistance from Mahavir, all the three accused killed him in the manner afore-referred.

At about 10 p.m. the same day Brij Kishore, the brother of the deceased Mahavir, lodged a report in the Police Station at Kotwali Datia where a criminal case No.175/97 under Section 302 read with Section 34 IPC was registered. This was investigated by the Investigating Officer who, during investigation, prepared or caused to be prepared post mortem report, site plan, recovered a knife on the disclosure of Dinesh, recovered bricks, took sample of soil soaked in blood and clothes of the deceased. These things were sent to the forensic science laboratory for examination. After completing the investigation, challan was filed against all the accused persons. They were tried by the Court of competent jurisdiction. The Sessions Judge, Datia, by a detailed and wel