Penal Code, 1860 – s.302 r/w s.34 – Murder – Common intention –Two accused, A-2 (respondent no.1) and his son (A-1) – Three PWs – Sessions Court convicted A-1 u/s.302 and A-2 u/s. 302 r/w 34 – High Court affirmed conviction of A-1, but, acquitted A-2 – On appeal by first informant/ son of deceased, held: High Court erred in acquitting A-2 – All three PWs were consistent and fully supported the case of prosecution – Even as per the High Court the motive was established and proved – High Court also observed that due to land dispute there was enmity between the parties – Therefore, High Court ought to have appreciated that A-2 was rightly convicted with the aid of s.34 as he with a common intention to kill the deceased accompanied his son and on finding the deceased sleeping on the different cot exhorted his son to kill him and thereafter his son (A-2) killed the deceased by fire arm – Once the presence of A-2 was established and proved and specific role of exhortation was assigned to him, the High Court ought to have confirmed the conviction of A-2 u/s.302/34 – Judgment of trial court convicting A-2 u/s.302/34 and sentencing him to undergo life imprisonment, accordingly, restored.
Allowing the appeal, the Court
HELD:1. Respondent No.1 – accused No.2 was named in the FIR. There are three eye witnesses to the incident namely PW-1, PW-2 and PW-4 and all the prosecution witnesses have named respondent No.1 – accused No.2 and all of them have stated that both the accused came at the pumping set where the deceased was sleeping and at that time on finding the deceased sleeping on the different cot, respondent No.1– accused No.2 exhorted his son to kill the deceased and his son – accused No.1 killed the deceased by fire arm. All the three prosecution witnesses are consistent and fully supported the case of the prosecution. Once the High Court has even confirmed the conviction of accused No.1 relying upon all the three eye witnesses, the High Court ought to have confirmed the conviction of respondent No.1 – accused No.2 also relying upon the three eye witnesses. [Para 12][555-F-H; 556-A-B]
2. It appears that the High Court has acquitted respondent No.1 – accused No.2 just on the ground that all the three eye witnesses had given him the role of exhortation and no overt act has been assigned to him, this may be due to exaggeration of his role so as to falsely implicate him and see that the father and son are put behind bars. However, it is required to be noted that both the accused – father and son went together to the place/pumping set where the deceased was sleeping. Even as per the High Court the motive has been established and proved. The High Court has also observed that due to land dispute there was enmity between the parties. Therefore, the High Court ought to have appreciated that respondent No.1 – accused No.2 was rightly convicted with the aid of Section 34 of the IPC as he with a common intention to kill the deceased accompanied his son and on finding the deceased sleeping on the different cot exhorted his son to kill him and thereafter his son killed the deceased by fire arm. Therefore, once his presence has been established and proved and specific role of exhortation was assigned to him, the High Court ought to have confirmed the conviction of respondent No.1 – accused No.2 for the offence punishable under Section 302/34 of the IPC. [Para 12.1][556-C-F]
3. The High Court committed a grave error in acquitting respondent No.1 – accused No.2. The finding recorded by the High Court is just contrary to the evidence on record. The judgment and order passed by the Trial Court convicting respondent No.1 – accused No.2 for the offence punishable under Section 302/34 of IPC and sentencing him to undergo life imprisonment is hereby restored. [Paras 12.2, 13][556-H; 557-A, B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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