Sharma Vs. State of Rajasthan  INSC 474 (15 September 1998)
Mukherjee, Syed Shah Mohammed Quadri,. Qyadri, J.
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.
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:
this both Pappu (appellant) and Ganeshi said strike at his Daljit". PW - 1
deposed before the Court.
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 had worn. He, then, in a jiffy
struck at Kailash 2-3 blows on the left portion of his body'.
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)].
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.