Penal Code, 1860 – ss. 302/34, s. 304 Part II – Murder with common intention – Culpable homicide not amounting to murder, when – Political animosity between two groups led to the murder of the deceased – Prosecution witnesses corroborating incident of accused A 1 stopping an auto, dragging the deceased to the house of A-4, and the other accused-A2, A4 joined A-1 and assaulted the deceased with various weapons, whereas, A-3 used a stone to assault the deceased – Conviction u/ss. 302/34 and sentence for life imposed by the courts below – Correctness:
Held: As regards A1, A2 and A4, the decision of the trial court and the High Court is concurred with – Their analyses and conclusions are based on correct appreciation of evidence and law – However, as regards, the culpability of A-3 for murder, testimonies of four eye-witnesses state that the A-3 had used a stone to hit the deceased’s head, he never took axe in his hands – Perusal of the evidence would reveal that it is not the case of the prosecution that A-3 was along with the other accused while the deceased was dragged to the house – After the other accused assaulted the deceased with sword, A-3 came thereafter and assaulted the deceased with stone lying there – Evidence insufficient to deduce a conclusion that A-3 shared the common intention with the other accused to cause the murder of the deceased – In fact, both the courts mechanically drew an inference against A3 u/s. 34 merely based on his presence near the scene of offence and his familial relations with the other accused – Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has committed – A-3 should have had the knowledge that the use of a stone to hit the head of the deceased is likely to cause death – Thus, he is held guilty of the offence u/s. 304 Part II – Conviction and sentence of A-1, A-2 and A-4 u/s. 302/34 is upheld, however, the conviction of A-3 is modified to s. 304 Part II and sentenced to 10 years imprisonment. [Paras 17, 23, 28, 30, 31, 32]
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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