Section 34 of the Indian Penal Code can be applied to a case under Section 304, Part II, of the Indian Penal Code, provided that each person taking part in the crime had knowledge that their act was likely to cause death.

1. This judgment will dispose of both the appeals (Criminal Appeals 11-D and 14-D of 1959).

2. These appeals are directed against the conviction of the appellants under S. 304, Part II, of the Indian Penal Code. Appellant Rajender Kumar was sentenced to six years rigorous imprisonment and the other appellant Hari Shankar, to four years rigorous imprisonment.

3. According to the case of the presecution, the appellants and Din Dayal deceased lived in Bedwara, a part of Delhi city. Sometimes prior to the occurrence Om Parkash, a minor brother of Chhagan lal P. W. 7, was alleged to have been kidnapped by the appellants, the minor having taken with him a suim of Rs. 2,000.00 from his brothers shopped. Din Dayal deceased appeared as a presecution witness in that case but was declared hostile. The trial Magistrate convicted the appellants for kidnapping Om Parkash and sentenced them to rigorous imprisonment for six months on 3-3-1958. They had filed an appeal and were on bail on the day of assurance and it may be mentioned that they were subsequently acquitted by the appellate Court in that case. according to the prosecution the relations of the appellants with the deceased Din Dayal became strained on account of Din Dayal appearing as a witness in the kidnapping case against the appellants. On 25-5-1958 Hari Shankar appellant reported to the police that Din Dayal had given a beating in order to extort money vide Exhibit P/J. It is alleged that on 30-5-1958 at about 9 or 9-30 p. m. both the appellants were sitting the Dharamshala in Bedwara when Din Dayal appeared there having come from his house.

He was attacked by both of them. Hari Shankar held him by the arms while Rajender Kumar gave him three stab blows with a knife on the chest back and left thigh. On hearing his alarm his brother Bhup Singh P. W. 3 and two others neighbors, Ram Saroop P. W. 4 and Sarup Chand had come and had seen the occurrence. Rajinder Kumar managed to escape and was arrested later on 9-6-1958. Ram Saroop P. W. 6 and Sarup Chand who had been originally cited as a prosecution witness but appears to have been given up by the prosecution, were able to apprehend Hari Shankar on the spot, Din Dayal was carried in a rickshaw by Bhup Singh, his brother, to the Kotwali from where he was carried to the Irwin Hospital. He was given necessary treatment but it was noted for the first time on 12-6-158, that his injuries were dangerous and grievous. He ultimately died in the hospital on 21-7-1958. Both the appellants were committed to the Court of Session for their trial under S. 302 read with S. 34 of the Indian Penal Code, and were finally convicted as stated above, of an offence under S. 304, Part II Indian Penal Coe.

4. The prosecution evidence consists mainly of two eye-witnesses, namely Bhup Singh P. W. 3 and Ram Sarup P. W. 6. The testimony given by P. W. 3 Bhup Singh who supported the prosecution case fully was assailed by Mr. Nuruddin Ahmad, the learned counsel for Rajinder Kumar, on various grounds. It is pointed out that apart from the fact that he was the brother of the deceased, he could not have been presented at the spot because he along with his wife was carrying on business and was living near the Harding Bridge. Bhup Singh himself stated that his in-laws lived near the Hardinge Bridge but he did not live with them though he was running a shop jointly with them.

It was stated by him that he was living with his elder brother Din Dayal in a house in Bedwara. That house was in the tenancy of his uncle with whom they were living because their father had been murdered three or four months before the date of the occurrence. Ram Saroop P. W. 6, the other eye-witness, who resided in the same house where Din Dayal and his uncle were residing was confronted while he was being cross-examined with his statement before the Committing Magistrate that Bhup Singh lived near the Hardinge Bridge and visited Bedwara occasionally, although at the trial he said that