The court modified the conviction of Subhash from murder to culpable homicide not amounting to murder, emphasizing the need for evidence of common intention in joint criminal acts.

JUDGMENT :

(Vijay Bishnoi, J.) :

1. The instant criminal appeal has been preferred on behalf of the appellants being aggrieved with the judgment dated 26.08.2016 passed by the Additional Sessions Judge, No.2 Hanumangarh in Sessions Case No.01/2014, whereby it has convicted the appellant No.1 - Subhash for the offences under Sections 302, 201 IPC and Section 3/25, 7/27 (2) of the Arms Act, 1959 (hereinafter to be referred as ‘the Arms Act’) and convicted appellant No.2 - Ankush under Section 302/34 and 201 IPC. The trial court has sentenced both the appellants as under :-

Appellant - Subhash

Appellant - Ankush

2. All the sentences of both the appellants were ordered to run concurrently.

3. Brief facts, necessary for adjudication of the present criminal appeal, are that on 24.04.2014, Ram Pratap (P.W.-5) submitted a written report (Ex. P-12) to S.H.O., P.S. Tibbi at 10.15 PM, wherein it was stated that today at about 2.30 PM, Om Khichad son of Luna Ram resident of Salemgarh, his brother Krishan resident of Ellenabad, Subhash son of Mahendra, Rai Singh son of Maniram and Ankush son of Rai Singh came to his house for settling the dispute between Krishan, Subhash and Om Khichad regarding partition of house and shop, however, after some time, heated discussion took place between Krishan, Subhash and Om Khichad and all of them started abusing each other and thereafter also started quarreling which resulted into skirmish. It was also stated that the complainant, Rai Singh and Ankush tried to pacify them, then suddenly appellant – Subhash son of Mahendra took out a pistol from his pocket and with intent to kill Krishan fired a gunshot on him which hit him on his stomach; blood started oozing out from his stomach; he fell down and became unconscious. It was further stated in the complaint that the appellant - Subhash ran away from the scene of crime and the complainant and Aditya took Krishan to the Tibbi Government Hospital, wherefrom the Doctor referred him to Hanumangarh. He has prayed that action be taken against appellant – Subhash.

4. On the basis of the above complaint an FIR bearing No.115/2014 was registered at Police Station Tibbi (Ex. P-13) and after completion of the investigation filed charge-sheet against the appellants Subhash and Ankush in the Court of Judicial Magistrate First Class, Tibbi for the offences under Sections 302, 323/34 IPC and 3/25 of the Arms Act and Section 302, 323, 201/34 IPC respectively.

5. Later on, the case was committed to the Sessions Judge, Hanumangarh, who assigned the same to the Additional Sessions Judge, No.2 Hanumangarh (hereinafter to be referred as ‘the trial court’).

6. The trial court framed charges against accused - Subhash for the offences under Sections 302 and 201 IPC read with Section 3/25 and 7/27 (2) of the Arms Act and against the accused – Ankush for the offences under Sections 302/34 and 201 IPC. However, the accused – appellants denied the charges and claimed trial.

7. To prove the charges agains