02 November 2004
Supreme Court
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DAMODAR Vs STATE OF U.P.

Case number: Crl.A. No.-001129-001129 / 1999
Diary number: 15139 / 1999
Advocates: RACHANA SRIVASTAVA Vs RAVI PRAKASH MEHROTRA


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CASE NO.: Appeal (crl.)  1129 of 1999

PETITIONER: DAMODAR

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 02/11/2004

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T

       The appellant herein, along with Ravindra Singh (co-accused) was put up  for trial before the IInd Additional Sessions Judge, Jalaun.  The trial court by its  judgment and order dated 16th July, 1980 in Sessions Trial No.150/79 convicted Ravindra  Singh under Section 302 Indian Penal Code (for short ’IPC’)  and sentenced him to  imprisonment for life while convicting Damodar, the appellant herein under Section 302  IPC read with Section 34 IPC and also sentenced him  to imprisonment for life.  The  High Court has affirmed the conviction and sentence by its impugned judgment and order  of 28th July, 1999 in Criminal Appeal No.1962 of 1980.   The co-accused Ravindra Singh  also preferred   a petition for special  leave to appeal (Crl.) No.3587/1999 which was  dismissed by this Court by order dated 28.10.1999.  However, the appellant herein was  granted special leave and that is how this appeal comes up for disposal before us.          The deceased, namely, Guru Narayan was aged about 70 years.  It is alleged  that on 21.7.1979 at about 8.00 P.M. when he was returning  to his house accompanied  by his wife Shakuntla Devi (P.W-3) and Partap Singh (P.W-5) brother of Shakuntla Devi,  the appellant - Damodar along with accused Ravindra Singh came from behind and, on  the exhortation of the appellant, Ravindra Singh fired at Guru Narayan, as a result of  which he was injured, and by the time he could be removed to the hospital, he succumbed  to his injuries.     PW3 wife of the deceased immediately lodged a report at the police  station Kotwali, Orai at 8.45 P.M.         The medical evidence on record discloses a wound  of entry on the back 2  c.m. in diameter.  Blackening and scorching around the wound was also noticed.  The  exit injury was situated in an area of 4" x 3" below right nipple.         The witnesses relied upon by the High Court are Pws.3 & 5.  The testimony  of these two witnesses could not be impeached before us.  They appear to be natural  witnesses.  The first information report was also lodged promptly, within 45 minutes of  the offecne.  In the first information report itself it has clearly been alleged that at the   exhortation of the appellant herein, Ravindra Singh fired from his country made pistol  causing an injury which led to the death of the deceased.         It was argued before us that the mere fact that the appellant exhorted his  companion to fire at the deceased is not sufficient for the application of Section 34 IPC.   It was sought to be contended that there was no prior meeting of minds and, therefore, it  cannot be said that what was  done by Ravindra Singh was pursuant to the common  intention of both the accused.         It is not possible to accept this contention.  The facts of the case disclose that  murders have taken place on both sides.  While the deceased was being tried for the  murder of the uncle of the appellant, Ravindra Singh was being tried for the murder of  the son of the deceased.  The parties are well-known to each other.  It so happened that on  the day of occurrence, while the deceased was proceeding ahead, he was noticed by the  appellant herein who was in the company of Ravindra Singh, who was carrying a loaded  country made pistol.  He exhorted Ravindra Singh to kill the deceased whereafter  Ravindra Singh fired at the deceased from behind and killed him.  If these facts cannot be  disputed, there can be no doubt about the application of Section 34 IPC.  It was pursuant  to the common intention of both that Ravindra Singh fired at the deceased resulting in his  death.  Having heard the parties and  perused the records, we find nothing which may  lead us to hold that the allegation of exhortation by the appellant is not true.         In view of the above facts and circumstances, we find no merit in the appeal

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and the same is accordingly dismissed.         It appears that the appellant has been released on bail by order dated 28th  October, 1999 passed by this Court.  His bail bonds are cancelled, and the appellant is  directed to be taken into custody forthwith to serve out the remainder of the sentence.