IMPORTANT POINTS
Section 34 IPC gets attracted when common intention of the accused is established.
Non-applicability of Section 149 IPC is no bar in convicting the accused persons under Section 302 IPC read with Section 34 IPC.

JUDGMENT :

AJAY RASTOGI, J.

1. The present appeals arise out of the judgment dated 16th November, 2007 passed by the High Court of Kerala in Criminal Appeals convicting the accused appellants(accused no. 1 and accused no. 3) for offence under Section 302 read with Section 34 IPC and also under Section 324 IPC and sentenced to undergo rigorous imprisonment for life.

2. The accused persons faced trial for double murder of a father and son (Assainar & Abdul Rahiman) and causing grievous injuries to PW-2 Mohammed, son of deceased Assainar. That in all, 11 persons were initially charge-sheeted including appellants for offence punishable under Section 143, 148, 323, 324, 325 and 302 IPC read with Section 149 IPC. There was separate charge against accused nos. 1 and 3 for offence under Section 302 read with Section 34 IPC yet alternate charge against accused no. 3 under Section 302 IPC.

3. After analysing the evidence, learned trial Court convicted accused nos. 1 and 3 along with other accused persons for offence under Section 143, 148, 323, 324 read with Section 149 IPC and for 302 read with Section 149 IPC and sentenced them to rigorous imprisonment for life vide judgment dated 31st July, 2006. Accused nos. 1, 2 & 3 preferred joint appeal against the impugned judgment of the learned trial Court and the High Court of Kerala after due appraisal of the evidence on record, found all the three accused guilty and convicted them under Section 302 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life vide impugned judgment dated 16th November, 2007.

4. Accused no. 2 died at the later stage and accused nos. 1 and 3 have preferred their appeals to this Court against the impugned judgment.

5. To unfold the case of the prosecution, the incident alleged to have occurred around 2.15 p.m. on 5th December, 1995 in front of the Madrassa building situated in the premises of Bardar Masjid, Belincha, Kumbadage village. The fateful day being Friday, almost all the male members of Jamayath had assembled for prayer. PW-2 Mohammed reached at the mosque around 11.30 a.m. and was entrusted with the duty to bring the new Katheeb Mohammed Musliyar. The Katheeb had given a letter with amorous overtones to one Mimuna. On the basis of the majority opinion, the masjid committee terminated the services of earlier Katheeb of the mosque. At 1.45 p.m., the prayer speech was over. There was a dispute between the committee members who were in favour of the removal of earlier Katheeb and those who opposed. Just after the prayer, new Katheeb made a brief religious discourse. Afterwards, people began dispersing. PW-2 requested them to remain there and decide whether the new Katheeb was fit or not. Inspite of the request made, some people left the place and around 40 persons including the accused remained in the mosque. PW-1 made a declaration that the action of the old Katheeb was not proper. At that time, accused no. 1 and accused no. 3(appellants herein) along with other persons were standing in a group. PW-1 again said that the old Katheeb was not terminated in accordance with his personal wish but as decided by the committee. Seeing that situation was getting tense, PW-1's brother caught PW-1 and escorted him to the door and both went out. Behind them PW-2 and his father and brother came out of the mosque. Behind PW-2 and others, the accused persons also came out in a group. PW-2's father and younger brother hurried along the front courtyard of the madrassa to reach the road abutting on the eastern boundary of the compound. Accused no. 2 who was just approaching the courtyard of the madrassa suddenly exhorted raising his voice "There they go! Why simply watch? Go and stab." Immediately accused no. 1 dashed at PW-2's father Assainar and stabbed him right on his back with the dagger. Assainar-on receipt of the stab swayed on his unsteady steps and finally fell down. Seeing the incident, PW-2's brother Abdul Rahiman came running to the spot and threw