The main legal point established in the given judgment is the application and interpretation of common intention under Section 34 IPC, and the conversion of conviction from under Section 302 IPC to Section 304, Part-I IPC.

Sanjiv Khanna, J. Oral:

1. These three appeals arise out of a common judgment dated 6th July, 2012 and order of sentence dated 12th July, 2012 arising out of FIR No.561/2007 recorded at Police Station Jahangir Puri. The appellants have been convicted for murder under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced to rigorous life imprisonment and fine of Rs.50,000/-and in default of payment of which, they have to undergo simple imprisonment for three months. The fine have been directed to be paid to the family members of the deceased Ram Pratap @ Rinku as the compensation under Section 357 of the Code of Criminal Procedure, 1973 (“Cr. P.C.” for short).

2. On the question whether the appellant Babloo was the perpetrator and the appellant Sunil Kumar @ Sunny and Sheikh Mazid had common intention under Section 34 IPC, the prosecution relies upon the statement of eye-witness, Madan Kumar (PW-1) and Parsuram (PW-2). PW-1 has deposed that he and the deceased were working together as plumbers and were returning to their residence Block-C Jahangir Puri, on 18th August, 2007 at 8.00 P.M. W hen they reached near the Gurudwara, the appellants Babloo and Sunil caught hold of the deceased Rinku. The said appellant had an old enmity with Rinku and uttered that they would kill him. Sunil and Sheikh Mazid caught hold of Rinku and Babloo and gave a knife blow at the back side of the right thigh. PW-1 tried to intervene and save Rinku but Babloo gave another blow on the same right thigh. PW-1 raised an alarm and public gathered at the spot. In the meanwhile, Parsuram, (PW-2), brother of the deceased, came to the spot and chased the appellants, who were running away. PW-1 and 2 removed the deceased to BJRM Hospital where he was declared as brought dead.

3. PW-1’s statement in chief was first recorded on 12.5.2009 and for the second time on 28.4.2010, after Sheikh Mazid who was earlier a proclaimed offender was arrested and put to trial. In his second deposition recorded on 28.4.2010, PW-1 has been more elaborate. On the core aspects PW-1 is categorical and he has identically averred that he and Rinku were working together as plumbers and on 18.8.2007 after completing the work at house in Block-B, they were going to their residence located in Block-C at Jahangir Puri. When they reached near Gurudwara wali Gali, three boys came and stopped them. At that time Babloo had given knife blows to Rinku while Sunil and Sheikh Mazid had caught hold of him. In the statement in chief, recorded on 28.4.2010, PW-2 has stated that Babloo took out the knife from his knicker and thrusted it on the body of Rinku stating “aaj isko jaan se maar denge” i.e. that they would kill him today. Thereafter, the appellant Babu (Babloo) asked Rinku and PW-1 to come to the side. They were taken to the park near the Gurudwara. The two other boys namely, Sunil and Sheikh Mazid, caught hold of them and when they reached the park all (three) boys started beating Rinku. PW-1 tried to intervene but Babloo gave knife blow on Rinku’s right thigh. The second knife blow was also given on the right thigh. At that point, PW-1 tried to intervene for the second time. PW-1 raised an alarm and public gathered there. All three boys ran away towards 400 wali Gali. In the meanwhile, Parsuram (PW-2) on his way back from Mandi saw the appellants running away. PW-1 along with PW-2 removed Rinku to the hospital.

4. We are inclined to accept and believe the statement made by PW-1 though, as noticed above, we find elaboration in the statement in chief made on 28.4.2010 viz. the statement made on 12.5.2009. The second statement is certainly more detailed but on four aspects, the two statements are identical and match each other, namely, (a) PW-1 and the deceased were returning together from work, from B-Block Jahangir Puri, when the incident occurred; (b) the location where the three appellants met PW-1 and the deceased, i.e. near the Gurudwara wali gali; (c) there was an old