IMPORTANT POINT
Common intention can be gathered from conduct of the accused.

JUDGMENT

ASHOK BHUSHAN,J.

These appeals have been filed against the judgment of the High Court dated 05.05.2014 dismissing the Criminal Appeals filed by the appellant and allowing the Criminal Appeals of the complainant as well as that of the State of Maharashtra.

2. As per the prosecution story on 21.10.2010 at about 8 AM in the morning, the complainant was standing at Bazar Pati Chowk and his brother Sardarkha was standing at some distance. At that time, it was alleged that all the accused came there and asked the complainant to allow them to take water from the common well for one day due to load shedding. Complainant refused to give excess water and asked the accused to take water by rotation. At that time, they abused complainant and accused No.1, i.e. Nasibkha assaulted him. His brother Sardarkha who was standing at some distance, intervened. Thereafter, the accused Nos.1 and 2, i.e., Nasibkha and Asifkha went to their house on motorcycle and immediately returned. The accused No.1 challenged Sardarkha to stop him from drawing water. Sardarkha tried to convince him. Accused No.1 assaulted Sardarkha by knife on his right rib and accused No.2 caught hold the neck of Sardarkha. The accused Nos. 3 and 4, i.e., Jabbarkha and Ansarkha punched the complainant. Immediately after the incidents, Sardarkha was taken to Ghati Hospital, Aurangabad by Jeep and complainant and others followed him in another jeep. He was admitted in the hospital at about 10 AM, where the doctor declared him dead.

3. A First Information Report was lodged on the same day under Sections 302, 323, 504, and 506 read with Section 34 of the Indian Penal Code against all the accused, who were named in the FIR. Accused were arrested on 22.10.2010. On 26.10.2010, accused No.1 gave a memorandum of statement under Section 27 of the Indian Evidence Act and in consequent to the said memorandum weapon was recovered. After completion of the investigation, charge sheet was filed under the aforesaid sections.

4. All the accused were sent for trial. In the trial, complainant PW1 Kalekhan proved the prosecution case, other eye-witnesses -PW2 Salimkha Abbaskha Pathan and PW4, Ajijkha Sardarkha also proved the prosecution story, PW5, Dr. Navinkumar Varma proved the post-mortem report and PW6 and PW7 were panch witnesses. There were other formal witnesses, who deposed before the trial court. The trial court, vide its judgment dated 29.02.2012, after discussing the role of each of the accused came to the following conclusion in Paragraph No. 39:-

“39. There are four accused in the crime and as per the case of the prosecution, they shared common intention to commit offence. If the evidence of prosecution witnesses in this regard is perused, P.W.1, 2 and 4, who are eye-witnesses, categorically stated that accused No.2 caught hold the neck of Sardarkha and accused No.1 inflicted knife blow on right rib. They have stated that accused Nos.3 and 4 were present and they assaulted complainant by fist and blows. There is no evidence that accused Nos.3 and 4 provoked accused Nos.1 and 2 to attack. There is no evidence of any prior concert or meeting of mind of accused Nos.3 and 4 in sharing common intention of accused Nos.1 and 2. Before convicting accused with the aid of Section 34 of Indian Penal Code, it has to be proved that there was pre-arranged plan to commit the offence………”

5. The trial court held that complicity of the accused Nos.1 and 2, i.e., accused Nasibkha and Asif Khan is established. The trial court, however, came to the conclusion that accused Nos.1 and 2 were not guilty of having committed offence under Section 302 read with 34 IPC, however, they can be convicted of having committed the offence punishable under Section 304 Part II read with Section 34, the accused Nos.1 and 2 were sentenced to undergo imprisonment for 10 years and to pay fine of Rs.5,000/-. All the accused were acquitted of the offence punishable under Sections 323, 504 and 506 read with Section 34 of Indi