The court clarified that common intention under Section 34 can arise spontaneously during the commission of an act, and upheld the conviction for culpable homicide not amounting to murder based on the evidence of eye-witnesses.

JUDGMENT :

A.S. SUPEHIA, J.

(1) Both these Criminal Appeals emanate from the judgment and order dated 11.02.2005 passed by Additional Sessions Judge, Fast Track Court No.4, Navsari, in Sessions Case No.42 of 2004, wherein and whereby, the trial Court has acquitted the original accused Nos.5 and 6 i.e. Mangubhai Bhisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel, respectively and convicted the original accused Nos.1 to 4 for the offence punishable under Sections 304 Part–II read with Section 34 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced imprisonment for a period of 5 years.

(2) Being aggrieved by the judgment and order passed by the trial Court, the State has filed the appeal against all the six accused, whereas, the original accused Nos.1 to 4 had filed the captioned Appeal being Criminal Appeal No.465 of 2005, challenging the conviction under provisions of Section 304 Part-II read with Section 34 of the IPC.

BRIEF FACTS:

(3) The case of the prosecution is that the complainant – Kikubhai Gamanbhai, (PW-1), filed a complaint before Chikhali Police Station, alleging that on 03.08.2004, when he along with his wife – Babitaben had gone for agricultural work in his field, at the relevant point of time, the father of the complainant viz. Gamanbhai had also gone for grazing the cattle and at around 5 hours, in the evening, he heard cries of his father, who shouted for help and accordingly hearing such cries the complainant along with his wife – Babitaben PW-2, went there and saw all the accused – Babubhai Bheisabhai (Ghodia) Patel, Chhotubhai Bheisabhai (Ghodia) Patel, Dharmeshbhai Babubhai (Ghodia) Patel and Rakesh Chhotubhai (Ghodia) Patel, were inflicting stick blows to his father and the accused-Mangubhai Bheisabhai (Ghodia) Patel and Kiranbhai Chhotubhai (Ghodia) Patel were inflicting fist and kick blows to his father. Both of them rushed to the place of the incident and saw their father, who had received severe injuries on head and nose and immediately they have taken him to the house of one Chandubhai, where he succumbed to the injuries. Accordingly the complaint at Exh.12 was registered by the complainant on 04.08.2004. After recording the statements of the relevant witnesses, the Police thereafter filed the charge-sheet before the Judicial Magistrate, First Class. Since the offence was exclusively triable by the Sessions Court, the same was committed to the Court of Additional Sessions Judge, Fast Track Court No.4, Navsari for trial Sessions Case No.42 of 2004.

(4) Accordingly, charge at Exh.2 was framed for the offence punishable under Sections 143, 147, 148, 149, 34 and 302 of the IPC. The trial Court, after examining the ocular as well as documentary evidence, vide judgment and order dated 11.02.2005, convicted the respondent Nos.1 to 4 (original accused Nos.1 to 4) for the offence under Section 304 Part-II read with Section 34 of the IPC and ordered to suffer rigorous imprisonment for 5 years and fine of Rs.250/- and in default they have to undergo further simple imprisonment of 1 month, whereas respondent Nos.5 - 6 (original accused Nos.5- 6) have been acquitted for the offence for they have charged.

(5) The State has filed appeal – Criminal Appeal No.578 of 2005, as narrated hereinabove, against all the accused for the acquittal of the offence under Section 302 of the IPC, whereas, the respondent Nos.1 to 4 (original accused Nos.1 to 4) have assailed their conviction for the offence under Section 304 Part-II of the IPC by filing Criminal Appeal No.465 of 2005.

SUBMISSIONS ON BEHALF OF STATE:

(6) Learned APP Mr.Ronak Raval, while assailing the judgment of the trial Court, has submitted that the trial Court fell in error in convicting the accused for the offence punishable under Section 304 Part-II of the IPC by taking aid of Section 34 of the IPC, instead of convicting them for the offence punishable under Section 302 of the IPC, for which they were charged.

(7) Learned APP Mr.Ronak Raval, at