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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.