Common intention under Section 34 IPC can be established through evidence of participation in the crime, even without prior planning, as demonstrated by the credible testimony of an eyewitness.

JUDGMENT :

Hon’ble Rajiv Gupta, J.

1. Heard Shri Arun Kumar Pundir, learned counsel for the appellant in Criminal Appeal, Shri Ashish Tiwari, learned AGA for the State, Shri Abhishek Gupta, learned counsel for the accused-respondent-Raju, Shri Harshit Gupta, holding brief of Shri Rohan Gupta, learned counsel for the accused respondent-Kalloo and perused the record.

2. The instant criminal appeal as well as government appeal has been filed against the judgment and order dated 28.02.1984 passed by 6th Additional Sessions Judge, Kanpur in Sessions Trial No. 63 of 1983 (State of U.P. Vs. Ashok and Others), arising out of Case Crime No. 411 of 1982, Police Station Harbans Mohal, District Kanpur, by which the accused-appellant Ashok has been convicted for the offence under Section 302 read with Section 34 IPC and awarded the sentence of life imprisonment, whereas accused-respondents Raju, Kalloo and Chander have been acquitted of all the charges framed against them.

3. Since the basic facts, issues and the judgment of the trial court are similar and common, both criminal appeal as well as government appeal have been clubbed and heard together and the same are being decided by the common judgment.

4. Shorn of unnecessary details, prosecution story as unfurled in the FIR lodged by one Kamal Kumar, son of Shyam Lal based on a written report, which has been proved and marked as (Ext. Ka-2) is that first informant Kamal Kumar is the resident of House No. 61/203, Sitaram Mohal and few days back, there has been some verbal duel between his maternal uncle Dinesh Chand and one Ashok, who was putting his shop/kiosk in front of tea stall of the deceased, which was resisted by his maternal uncle, consequent to which, on 02.12.1982, when he along with his maternal uncle and one Satya Narayan had reached near Shivraj Tobacco Company in Harbans Mohal at about 06:40 p.m., Ashok son of Ram Chander, Chander son of Ram Shanker, Raju son of Ajay Gupta and Kalloo son of Kuwarji met them. Ashok and Raju were armed with knife, Kalloo then caught hold of his uncle Dinesh Chand by his waist and Chander held him his hands and made him fall down and exhorted to assault him, consequent to which, Ashok and Raju by their knives gave 4-5 blows causing injuries to Dinesh Chand, who fell down. On raising alarm, Ram Narayan and his younger brother Vimal Kishor reached the place of incident and witnessed the crime, however, the accused-assailants made their escape good. On account of fear, they did not chase them, however, since his maternal uncle was badly injured, as such, his brother Vimal Kishor rushed to take him to the hospital, however, en-route to the hospital, he succumbed to his injuries. Leaving his dead body there, he had gone to the Police Station to lodge the report. On the basis of a written report, FIR was lodged vide Case Crime No. 411 of 1982, under Section 302 IPC, carbon copy whereof has been drawn vide G.D. Report no. 46 at 20:10 hours dated 02.12.1982, which has been proved and marked as Exhibit Ka-4. The FIR was registered in the presence of S.H.O., Police Station Harbans Mohal, who was entrusted with the investigation of the present case.

5. The Investigating Officer recorded the statement of the first informant Kamal Kumar (P.W.1) and thereafter, he alongwith PW-1 reached the place of incident and found the blood and a shoe of the deceased lying there, which were taken in his possession and its fard recovery memo was prepared.

6. The Investigating Officer has further collected the plain earth and bloodstained earth from the place of incident and kept it in a container and prepared its recovery memo, which has been proved and marked as Ext. Ka-6 and Ext. Ka-7.

7. Thereafter, the Investigating Officer has prepared the site plan, which has been proved and marked as Ext. Ka-8 and then, reached the hospital and saw the corpse of the deceased but in the absence of proper arrangement, could not conduct the inquest, however, in the hospital, he recorded the