JUDGMENT

1. These appeals are directed against the judgment and order passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in Criminal Appeal No. 130 of 2000, dated 03.06.2005. The High Court, while affirming the judgment of the Trial Court in Sessions Case No. 49/99, dated 15.03.2000, has convicted Shri Ram - A-1, under Section 302 read with Section 34 of the Indian Penal Code (“the IPC” for short) and reversed the judgment of the Trial Court and acquitted Shobha Ram - A-2. It is the acquittal of A-2, which is called in question by the appellant – State of Rajasthan in Criminal Appeal No. 592 of 2008.

2. Criminal Appeal No. 593 of 2008 is preferred by Shri Ram - A-1, being aggrieved by the order of conviction and sentence passed by the Trial Court and confirmed by the High Court.

3. The facts in brief are: The incident occurred on 16.02.1999 at about 5.30 p.m. PW-1 - Mohanlal, who is the brother of the deceased- Trilokchand had lodged the FIR before S.H.O., Police Station Chechat, regarding the alleged assault on the deceased by the accused persons. On the fateful day, the appellants on account of their past enmity over the well located in their lands, formed common intention to cause death of Trilokchand (since deceased) and in furtherance of their common intention, they caused injuries to the deceased with stones resulting in his death. The FIR was registered and after the completion of the investigation, the investigating agency had filed a charge-sheet against A-1 and A-2 under Section 302 read with Section 34 of the IPC. The accused persons denied the charge and pleaded false implication and, therefore, the Trial had commenced against both the accused A-1 and A-2.

4. During the Trial, the prosecution, in order to prove the guilt of the accused persons had examined several witnesses including PW-1 and PW-2 Smt. Manoharbai wife of the deceased, PW-3 Bhawanishankar, PW-4 Kalulal, PW-6 Basantilal and other witnesses. Prosecution had projected PW- 2 and PW-6 as eye witnesses to the incident.

5. The Trial Court after appreciating the evidence of the eye witnesses and others, has come to the conclusion that the testimony of PW-2 does not corroborate with the FIR and other material available on record and, therefore, it could be safely concluded that PW-2 had not seen the occurrence of actual incident and therefore, the evidence at the most can only be an hearsay evidence. However, the Trial Court has believed the evidence of PW-6, who, in his evidence, has categorically stated that A-1 was assaulting the deceased with the stones and A-2 was sitting on the chest of the deceased. The Trial Court placing reliance on the evidence of PW-6 has convicted and sentenced the accused persons under Section 302 read with Section 34 of the IPC to suffer imprisonment for life and to pay a fine of Rs.1000/- each, and in default, to undergo simple imprisonment for a further period of six months.

6. Aggrieved by the order of conviction and sentence passed by the Trial Court, the accused persons had filed appeals before the High Court. The High Court has confirmed the conviction and sentence of A-1 passed by the Trial Court. However, the High Court has acquitted A-2, only on the ground that A-2 had not actively participated in the commission of the offence and, therefore, the Trial Court was not justified in convicting A-2 for an offence punishable under Section 302 read with Section 34 of the IPC.

7. It is the correctness or otherwise of the judgment and order passed by the High Court which is called in question by the appellants in this appeal.

8. We will first take up the appeal of A-1. The Trial Court and the High Court has convicted A-1 based on the evidence of the sole eye-witness, namely, PW-6. In order to satisfy ourselves, we have once again carefully analyzed the evidence on record and the conviction of A-1 by the Trial Court with the aid of the sole eye-witness of PW-6. In his evidence PW-6 has stated, A-2 was