IMPORTANT POINT
Common intention u/s 34 and common object u/s 149 distinguished.

JUDGMENT :

Rastogi, J.

1. The appellants are assailing their conviction under Section 302 read with section 34 IPC and sentenced to undergo imprisonment for life passed by the learned trial Court and confirmed by the High Court under the impugned judgment.

2. On dismissal of appeal upholding conviction under Section 302 read with Section 34 IPC, accused nos. 1 and 2 have not challenged their conviction and sentence and accused nos. 3 and 4 (present appellants) have approached this Court assailing the said judgment and conviction under Section 302 read with Section 34 IPC.

3. The brief facts necessary for disposal of the appeal are as follows:

According to the case of the prosecution, accused no.1 Iftekharhussain Sabdarhussain was having a long pending civil dispute about his flat with the deceased Mohammad Shakil situated near to the scene of occurrence. On 18th August, 1997 at about 11.00 a.m., Mohammad Shakil (deceased) had operated electric motor for supply of water in the common overhead tank situated on top of the building but at that time since water taps were kept open by accused no. 1 Iftekharhussain Sabdarhussain in his house, the water could not reach to the tank. The request of the deceased Mohammad Shakil to close the tap was not acceptable to accused no. 1 Iftekharhussain Sabdarhussain, due to which altercation took place between accused no. 1 Iftekharhussain Sabdarhussain and deceased Mohammed Shakil and both started shouting at each other. According to the prosecution, after hearing hot altercation, members of the complainant party (Shamimbanu, Adilahmed, Zaidahmed) came there and started abusing the member of their family. At this stage accused no. 1 Iftekharhussain Sabdarhussain and accused no. 2 Shefakathusssain Sabdarhussain went into their house and brought a knife and gupti in their hand and accused nos. 3 & 4 (present appellants) caught hold of Mohammad Shakil (deceased) and accused no. 1 Iftekharhussain Sabdarhussain and accused no. 2 Shefakathussain Sabdarhussain gave a knife and gupti blow to deceased Mohammad Shakil (deceased) and accused no. 2 Shefakathussain Sabdarhussain also injured Adilahmed (PW2) who too was caught hold of by accused nos. 3 & 4 (present appellants) and thereafter they left the scene of occurrence, both Mohammad Shakil and Adilahmed (being severally injured) were taken to V.S. Hospital and on receiving telephonic message Mr. Makwana, Police Inspector rushed to the hospital where he came to know that Mohammad Shakil had succumbed to injuries and Adilahmed was admitted in the hospital for treatment and thereafter recorded the complaint of Shamimbanu (PW1), wife of deceased Mohammad Shakil at 2.00 p.m. and thereafter sent the same to Gaikwad Haveli Police Station for registration of offence. Thereafter, all the four accused were registered in C.R. No. 146/1996 for the alleged commission of offence under Sections 302, 307 read with Section 34 IPC.

4. It may be relevant to note that for the selfsame incident happened around 11.00 a.m. in the morning of 18th August, 1997, accused no. 1 Iftekharhussain Sabdarhussain also made a cross complaint that he was residing at House No. 521/4/5 in a small chawl (street) of Saudagar, in Jamalpur area and the present complainant party was living in front of his house and the families are known to each other. On 18th August, 1997 at eleven o’clock in the morning, he was in the bathroom and he had kept the tap on, as his house was to be cleaned. Mohammad Shakil (deceased) came at his house and told him to turn the tap of water off. Accused no. 1 Iftekharhussain Sabdarhussain told to do the same after the cleaning work would finish as he was cleaning his house and not possible for him to off the tap. The members of the complaint party started using abusive language and attacked on him and becoming very excited. He also got excited and used abusive words, then three of them had beaten him with punch and kick and Mohammad Shakil (deceased) had beaten him by p