IMPORTANT POINTS
When evidence against two accused are not identical, acquittal of one will help the other.
When common intention with other accused is established, conviction with the aid of section 34 cannot be interfered.

JUDGMENT :

R. BANUMATHI, J.

This appeal arises out of the judgment dated 25.06.2008 in Criminal Appeal No.275 of 1995 passed by the High Court of Madhya Pradesh at Gwalior Bench in and by which the High Court has affirmed the conviction of both the appellants (accused No.6 and 5) under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon them along with fine of Rs.5,000/- each.

2. Brief facts which led to filing of this appeal are:-

On 08.01.1984 at about 10:00 am, complainant-Subhadra (PW-1), wife of deceased Ram Autar was cooking food in her house and deceased Ram Autar was taking the meals. After taking meals, deceased went out to the courtyard of the house for drinking water. At that time, appellant No.1-Rameshwar with whom the deceased had rivalry came to the courtyard armed with a farsa (axe) and five other accused persons armed with rifles and danda were also standing at the door of one Kedar Seth, neighbour and amongst them, appellant No.2-Balaram was also there. Appellant No.1 exhorted others to kill the deceased Ram Autar and thereafter, appellant No.1 attacked the deceased with farsa. Deceased ran out of the courtyard. Four persons standing at the door of Kedar Seth caught hold of deceased. Appellant No.1-Rameshwar and accused No.1-Ram Bharosey came there and joined the other co-accused. At that time, Tejabai, mother of deceased came and laid down on Ram Autar in order to save him. Accused separated Tejabai and when Tejabai tried to catch hold of farsa from accused Rameshwar, she sustained injury near her ear. Case of prosecution is that accused Rameshwar and Ram Bharosey caught hold of deceased and accused Balaram fired gun shot at deceased Ram Autar which hit the back of deceased due to which deceased fell down sustaining the gun shot injury. Accused Rameshwar also is said to have taken the gun from accused No.3-Umacharan and fired at deceased Ram Autar due to which, deceased Ram Autar sustained injuries at the hands of accused Rameshwar also. When the villagers came, all the accused fled away from the spot. On the complaint lodged by PW-1-Subhadra, wife of deceased, FIR in Crime Case No.08/84 was registered under Sections 452, 147, 148, 302, 302 read with Section 149 IPC and under Sections 11 and 13 of the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981.

3. Dr. P.S. Tomar, PW-10 had conducted the post-mortem and found the following injuries on the dead body of deceased Ram Autar:-

(i) One circular hole of 1.5 cm on the back of deceased, situated in the middle of spinal cord;

(ii) Injury in the muscle;

(iii) Spinal bone of deceased was fractured;

(iv) Injury in lower blood vein.

Five pellets were found inside the spinal cord of deceased and all these pellets were sealed and handed over to Police. PW-10 issued post-mortem certificate (Ex.P6) opining that deceased died of the injuries and injury No.1 was sufficient to cause death. Appellant No.1-Rameshwar was arrested on 23.04.1984 and on being interrogated, he gave the statement which led to recovery of axe in the gonad under Ex.-P7-seizure memo. After completion of investigation, charge sheet was filed against the appellants and other four accused in the aforesaid offence.

4. In order to prove the guilt of the accused, prosecution has examined PW-1-Subhadra, wife of deceased, PW-2-Ram Narayan, father of deceased, PW-6-Katori Bai and PW-7-Ram Gopal and the neighbours all of whom have spoken about the occurrence and also about the overt act of the accused. Prosecution has also examined doctor who conducted autopsy and other official witnesses. Upon consideration of the oral evidence, the trial court held that the oral evidence is amply corroborated by the medical evidence and also the recovery of axe at the instance of appellant No.1-Rameshwar. The trial court held that the prosecution has established the guilt of the accused beyond reasonable doubt and convicted appellant No.1-Rameshwar and appellant No.2-Balaram under Secti