1. This appeal is directed against the judgment dated 30.07.1997 passed in Sessions Trial No. 173 of 1996 by the Third Additional Sessions Judge, Raipur. By the impugned judgment, the appellants have been convicted and sentenced as under.

Conviction

Sentence

Appellant No. 2

Under Section 302 IPC

Life imprisonment and fine for Rs. 200/- in default RI for one month.

Appellants No. 1, 3 and 4

Under Section 302/34 IPC

Life imprisonment and fine of Rs. 200/- in default RI for one month.

Under Section 323 IPC

SI for six months. Sentences to run concurrently

2. The facts, briefly stated, are as under: On 25.10.1995, Matar festival was being celebrated in the village. The case of the prosecution is that at about 9-9.30 pm, the appellants were making noise. This was resisted by Neerabai (PW3), as the appellant were doing all this in the gali near her house. After this, a quarrel took place between the appellants and the family members of the deceased-Naresh, in which Dulari (sister of the deceased, PW2), Neerabai (mother of the deceased (PW3) and Ashwani (brother of the deceased PW4) sustained simple injuries. It is alleged that during the quarrel Manoj Appellant-2 assaulted on the neck of the deceased by Gupti and the left Carotid Artary got punctured. Deceased died after sometime. The First Information Report (Ex.P/24) was lodged by Ramlal (PW14). Inquest on the dead body was prepared and it was sent for post-mortem. The post-mortem examination was conducted by Dr SK Bijhwar (PW 13), who submitted his report (Ex P/18). He found a punctured circular wound of 2" x 1 " x 4" on the left portion of the neck. On internal examination, he found that left Carotid Artary was punctured. He opined that, the injury was caused by a sharp edged weapon and cause of death was shock on account of the said injury. The death was homicidal in nature. The other three injured witnesses namely Dulari (PW2), Neerabai (PW3) and Ashwani (PW4) were also sent for their medical examination. They had received simple injuries. Their injury reports are Ex.P/19, 20 and 21 respectively. Learned Sessions Judge relying on the testimonies of these witnesses, held that the appellants were liable for punishment as aforesaid. The appellants were thus, convicted and sentenced as above. Hence this appeal.

3. Shri Arun Kochar, Counsel for the appellants has argued that there is absolutely no evidence of sharing common intention by appellants- 1,3 and 4 with appellant-2, therefore, conviction of these appellants under Section 302 with the aid of 34 IPC cannot be sustained. For appellant-2, he argued that in a sudden quarrel, appellant-2 gave a solitary blow of Gupti to the deceased, which proved fatal, therefore, an offence under Section 302 IPC would not be made out and he would be liable for punishment under some lesser section, preferably 304 Part I or II IPC.

4. On the other hand, Shri D.K. Gwalre, Government Advocate has opposed the arguments advanced on behalf of the appellants and supported the judgment passed by the Sessions Court.

5. We have heard Counsel for the parties and have also perused the reads of the sessions case.

6. Firstly, we shall examine the case of appellants 1, 3 and 4, who have been convicted under Section 302 read with Section 34 IPC,

7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal Act. The section is only a rule of evidence and 1 does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them.

8. Dularibai (PW2) deposed that it was the day of Malar festival. She was present in her house with Rajni, Rukmini and Durga. At that time, Puja of Madai was going on. Mayaram (appellant-1) came there with a candle and said that, they should come inside the house. It was about 9 p.m. On this, she said that ladies will not come inside of the house. Thereafter, he said that they are enemies, surround them. She became frightened and returned to her house. By that time, her mother Neerabai (PW3) started shouting that children are sleeping, why the noise is being made. On this, Mayaram (appellant-1), Manoj (appellant-2), Sukalu (appellant-3) and Gaichand (appellant-4) was about to assault on her head. Thereafter, many persons including her father came there. They caught her father and started dragging him towards their house. It was resisted by her. She was also pushed by Manoj (appellant-2). She fell down. It is at this time, Naresh (deceased) came there. She did not know from where he came there. Manoj (appellant-2) had assaulted her by Danda and he also assaulted her brother-Naresh (deceased) by a knife on his neck. She had caught him to save her brother.

9. Neerabai (PW3) is the mother of the deceased. Though she stated about the quarrel etc., but in fact, she did not witness the incident, as according to her, she became unconscious prior to the main incident of assaulting the deceased by Manoj (appellant-2).

10. Ashwin (PW4) is brother of the deceased. He also deposed that festival Matar was being celebrated in the village. He was not present at the place of occurrence. When he heard the noise of the quarrel, he reached to the place of occurrence and saw that his father was being dragged by Gaichand (appellant-4). He tried to obstruct him. Gaichand (appellant-4) assaulted him by Danda. At that time, Naresh (deceased) came there and said Manoj (appellant-2) not to quarrel. On this, Manoj (appellant-2) assaulted him by a Gupti. He received injury over his neck.

11. The above three eyewitnesses are sister, mother and brother of the deceased. They have also received injuries. The incident took place near the house of the deceased, therefore, their presence at the place of occurrence cannot be doubted. According to their evidence, deceased Naresh was not present at the time of initial incident. He came after a long time, when his father was being dragged by the accused persons. When Naresh (deceased) came there, he registered the above act of the accused persons, of which Manoj (appellant-2) assaulting Naresh by taking out Gupti, due to which he received single injury over his neck. This shows that the other accused persons had not shared common intention with accused Manoj (appellant-2), who assaulted the deceased in the above manner. There is no evidence of meeting of minds either prior to the incident or even at the time of the incident. The act done by Manoj (appellant-2) was his own act and in absence of any evidence of sharring common intention by the other accused persons, they cannot be convicted with the aid of Section 34 IPC. Therefore, conviction of appellants-Mayaram (appellant- 1), Sukalu (appellant-3) and Gaichand (appellant-4) with the aid of Section 34 IPC cannot be sustained.

12. The evidence of above eyewitnesses would show that a quarrel was going on since long time and after hearing the noise of that quarrel, Neerabai (PW3) and her two sons namely Ashwin (PW4) and Naresh (deceased) also came there. All of them started resisting the appellants from dragging their father. It is at this stage, Manoj (appellant-2) took out Gupti and gave solitary blow on the neck of deceased Naresh, who received the above injury and succumbed to that injury. This shows that there was no preparation or premeditation even on the part of Manoj (appellant-2) and the incident took place all of sudden after a quarrel between the members of the two families.

13. We are of the view that in the above facts and circumstances of the case, an offence under Section 302 IPC would not be made out against Manoj (appellant-2) and he would be liable for punishment under Section 304 Part-I IPC.

14. In the result, the appeal is partly allowed. The conviction and sentence awarded to Mayaram (appellant-1), Sukalu (appellant-3) and Gaichand (appellant-4) under Section 302 read with Section 34 IPC are set aside. They are acquitted of the above charges. Their conviction under Section 323 IPC is maintained and they are sentenced to the period already undergone, which comes about five months and six days.

15. The conviction and sentences awarded to Manoj (appellant-2) under Section 302 IPC are also set aside. Instead thereof, he is convicted under Section 304 Part-1 IPC and sentenced to undergo RI for 10 years. His conviction and sentence under Section 323 IPC is maintained. The direction to run the sentences concurrently is also maintained. He shall be entitled to set off the period already undergone.