Common intention under Section 34 of IPC requires clear evidence of shared intent; mere presence is insufficient for conviction.

JUDGMENT :

HASMUKH D. SUTHAR, J.

1. This appeal is directed under Section 378 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for short) against the judgment and order of acquittal qua accused No.2 dated 29.07.2003 passed by learned Additional Sessions Judge (Fast Track Court No.1), Vadodara, in Sessions Case No.211/2002, whereby the learned Sessions Judge acquitted the accused No.2 Somabhai Bhailalbhai Tadvi, for the offence punishable under Sections 302 read with Section 34 of IPC.

2. The following noteworthy facts emerge from the record of the appeal:

2.1. The deceased Hasmukhbhai Kanchanbhai Tadvi and respondents accused are neighbors and they are having adjoined Vada land at village Dharampuri, Taluka Dabhoi. Dispute was going on regarding vada land between them. That on 06.07.2002, while the deceased was going to his Vada, at that time, quarrel took place between the accused and deceased and accused No.2 Somabhai Bhaylalbhai had caught hold of the deceased and accused No.1 Vikrambhai Somabhai Tadvi had inflicted Axe blows on the forehead of the deceased. People gathered at the scene of incident. They took the deceased to Government Hospital where the deceased succumbed to injuries.

2.2. Accordingly, FIR being C.R.No.I-98/2002 was lodged before Dabhoi Police Station, Dist-Vadodara, investigation was carried out and ultimately, charge-sheet came to be filed against the accused persons for the offences punishable under Sections 302 and 34 of IPC before the jurisdictional Magistrate. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Cr.P.C. committed the said case to the Court of learned Additional Sessions Judge, Vadodara, which came to be numbered as Sessions Case No.211/2002. Since, the accused did not plead guilty and claimed to be tried, they were tried for the said offences;

2.3. At the trial, in order to bring home the charges levelled against the accused, the prosecution examined several witnesses and also relied upon the documentary evidence.

2.4. At the end of the trial and after recording the statement of the accused under Section 313 of the Code, and upon hearing the arguments on behalf of the prosecution and the defence, learned Sessions Judge has been pleased to convict the accused No.1 Vikram Tadvi for the offence under Section 304(part I) of INDIAN PENAL CODE and sentenced 7 years RI and has been pleased to acquit the accused No.2 Somabhai Bhaylalbhai Tadvi vide impugned judgment and order dated 29.07.2003 in Sessions Case No.211/2002 as mentioned above; 2.5) Being aggrieved by the acquittal of accused No.2, the appellant – State preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973 and requested to quash and set aside the order of the trial Court qua acquittal of accused No.2.

3. Heard learned advocates for the respective parties.

4. Learned APP for the appellant – State has contended that the Trial Court committed an error in extending the benefit of doubt to Accused No.2. During the trial, evidence was recorded, and injured witnesses deposed about the injuries sustained by the deceased on vital parts of the body, inflicted by Accused No.1. It is submitted that Accused Nos.1 and 2 are father and son, and they shared a common intention to kill the deceased. Although Accused No.2 did not inflict the fatal injuries, he actively participated by catching hold of the deceased, thereby facilitating the act of Accused No.1, who inflicted Axe blows on the head of the deceased, leading to his death. In light of these facts, Trial Court erred in acquitting Accused No.2, and in view of