STATE OF U P Vs. ROHAN SINGH

JUDGEMENT

(1.) For an occurrence which took place on 24-6-1976, Rohan Singh and Dulare the respondents herein along with Lakhan Singh and Jai Singh were sent up for trial in connection with the murder of Naqi Raza and for causing injuries to Mashooq Khan, PW 2. According to the prosecution case on 24th June, 1976 in the evening when Daya Ram, complainant was sitting at the main door of his house talking to Natha and Hari Ram about the purchase of groundnut seeds, deceased Naqi Raza and injured Mashooq Khan arrived there. While the complainant Daya Ram was talking to Mashooq Khan, the four accused, namely, Rohan Singh, Dulare, Lakhan Singh and Jai Singh arrived at the scene of occurrence. Rohan Singh was armed with a double barrel licensed gun. Dulare with a single barrel country-made gun while Lakhan Singh and Jai Singh were armed with lathis. Jai Singh and Lakhan Singh exhorted that Mashooq Khan and Naqi Raza be killed whereupon Rohan Singh fired a shot at Mashooq Khan while Dulare fired a shot at Naqi Raza. Several persons arrived at the spot and on seeing them the accused persons fled away. The trial Court after examining the evidence on the record acquitted Lakhan Singh and Jai Singh.

(2.) However, Rohan Singh was convicted for an offence under Section 302/34, IPC and awarded the sentence of life imprisonment. He was also convicted for an offence under Section 307, IPC and sentenced to suffer 5 years R.I. Dulare was convicted for an offence under Section 302, IPC and sentenced to suffer life imprisonment. He was also convicted for an offence under Section 307/34, IPC and sentenced to suffer R.I. for 5 years. The sentences of both the respondents were, however, directed to run concurrently. Both the convicts preferred an appeal against their conviction and sentence in the High Court of judicature of Allahabad at Lucknow. A Division Bench of that Court after critically analysing the evidence and hearing learned counsel for the parties found that P.W. 2, Mashooq Khan had received injuries at the hands of Rohan Singh only while Naqi Raza had died as a result of the injury caused to him by the gun shot fired by Dulare. The respondents as a matter of fact did not challenge the date, time and place of the occurrence not even seriously disputed the substratum of the prosecution case before the High Court. The submission made on behalf of the respondents before the High Court, however, was that the respondents Rohan Singh and Dulare could not be said to have shared the common intention to either cause the murder of Naqi Raza or to cause injuries to Mashooq Khan and that in the facts and circumstances of the case, the respondents could only be held responsible for their own individual overt acts. It was argued in the High Court that with the acquittal of Lakhan Singh and Jai Singh who according to the prosecution case had exhorted Rohan Singh and Dulare to cause the murder of Naqi Raza and injure Mashooq Khan, the very basis for the applicability of Section 34, IPC stood completely knocked off. The submissions made on behalf of respondents found favour with the High Court and accordingly the High Court partly allowed the appeal of the respondents. The conviction of Dulare for the offence under Section 307/34, IPC and the sentence of 5 years R.I. for the said offence was set aside. His conviction for the offence under Section 302, IPC and the sentence of life imprisonment for the murder of Naqi Raza was however maintained. Similarly, in the case of Rohan Singh, his conviction for an offence under Section 302/34, IPC and the sentence of life imprisonment imposed on him was set aside and he was acquitted of that charge. His conviction for an offence under Section 307. IPC and the sentence of 5 years R.I. for the injury caused to Mashooq Khan, PW 2 was however maintained. The State being aggrieved by the order of the High Court has filed this appeal by special leave.

(3.) We have heard learned counsel for the parties and examined the record. The only question which has been argued before us on behalf of the State is that in the facts and circumstances of the case, Section 34 IPC was attracted and both the respondents should have been held guilty with the aid of Section 34 IPC for the murder of Naqi Raza and for injuries to Mashooq Khan, P.W. 2.