Damodar Vs. State of U.P
 Insc 671 (2 November 2004)
B.P. Singh & Arun Kumar
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
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