Full Judgment Text
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PETITIONER:
AJAY SHARMA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT: 15/09/1998
BENCH:
M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI,.
ACT:
HEADNOTE:
JUDGMENT:
JUDGEMENT
QYADRI, J.
The appellant and two others, namely, Daljeet Singh
and Ganeshi were tried for offences, under Section 302 and
Section 302 r/w Section 34 I.P.C. by the learned Additional
Session Judge No.1, Sri Ganganagar. The gravamen of the
charge against them was that the said three persons came on
a motor cycle; Ganeshi and the other caught hold of Kailash
Soni and exhorted Daljeet Singh to strike him. On that
Daljeet Singh gave 2-3 blows with his kripan to kailash Soni
which resulted in his instantaneous death (hereinafter
referred to as ’the deceased’). On considering the evidence
produced by the prosecution, the learned Additional Session
Judge convicted Daljeet Singh under Section 302; appellant
and Ganesh under Section 302 read with Section 34 I.P.C.
and sentenced each one of them to life imprisonment and fine
of Rupees five hundred, in default thereof to further
undergo rigorous imprisonment for six months. Against their
conviction and sentence, they filed appeal in the High
Court. By judgment and order of March 17, 1992, the High
Court upheld the conviction and order of the High Court, by
special leave the appellant has filed this appeal.
Mr. Jayant Bhushan, the learned counsel for the
appellant, submitted that as the only overt act attributed
to him was that he caught hold of the deceased and exhorted
Daljeet by saying ’Maro", so it cannot be said that there
was common intention to kill the deceased: the appellant
only said ’Maro’, which did not mean ’to kill’, therefore,
he ought not to have been convicted under Section 302 read
with Section 34 IPC. To examine the contention of the
learned counsel, we have perused the First Information
Report and the statement of Mohan Mujral (pw-1). The
relevant allegation in the F.I.R. reads as follows:
"At this both Pappu (appellant) and Ganeshi said
strike at his Daljit".
PW - 1 deposed before the Court.
"when we raised the alarm, both Pappu Pandit and
Ganeshi instigated Daljit Singh "Strike’. They
exhorted him to strike at Kailash. At this Daljit
took out a short kripan from under the stockings he
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had worn. He, then, in a jiffy struck at Kailash 2-3
blows on the left portion of his body’.
Thus, from the averments in the FIR as well as from
the statement of PW-1, it cannot be said that the appellant
had shared common intention to kill the deceased. The
appellant might not have been known that Daljeet Singh was
having a kripan under his stockings. The instigation was
only ’to strike’ and as such his conviction under Section
302 read with Section 34 IPC is not sustainable. [See Jai
Narain Mishra vs. State of Bihar (AIR 1972 SC 1764) and
Matadio vs. State of Maharashtra (Jt 1998 (5) SC 264)].
The conviction of the appellant under Section 302/34, IPC
is, therefore, set aside; instead he is convicted under
Section 324 read with Section 110 IPC and sentenced to the
period already undergone. His bail bonds shall stand
cancelled and he be released forthwith unless he is required
to be incarcarated in any other case. The appeal is
accordingly disposed of.