AJAY SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant and two others, namely, Daljeet Singh and Ganeshi were tried for offences, under Section 302 and Section 302 r/w. Section 34, I.P.C. by the learned Additional Sessions Judge No. 1, Sri Ganganagar. The gravemen of the charge against them was that the said three persons came on a motor cycle; Ganeshi and the other caught hold of Kailash Soni and exhorted Daljeet Singh to strike him. On that Daljeet Singh gave 2-3- blows with his kripan to Kailash Soni which resulted in his instantaneous death (hereinafter referred to as 'the deceased'). On considering the evidence produced by the prosecution, the learned Additional Sessions Judge convicted Daljeet Singh under Section 302; appellant and Ganeshi under Section 302 read with Section 34, I.P.C. and sentenced each one of them to life imprisonment and fine of Rupees five hundred, in default thereof to further undergo rigorous imprisonment for six months. Against their conviction and sentence, they filed appeal in the High Court. By judgment and order of March 17, 1992, the High Court upheld the conviction and sentence of the appellants. Aggrieved by the judgment and order of the High Court, by Special Leave the appellant has filed this appeal.

(2.) Mr. Jayant Bhushan, the learned Counsel for the appellant, submitted that as the only overt act attributed to him was that he caught hold of the deceased and exhorted Daljeet by saying 'Maro', so it cannot be said that there was a common intention to kill the deceased; the appellant only said 'Maro', which did not mean 'to kill', therefore, he ought not to have been convicted under Section 302 read with Section 34, IPC. To examine the contention of the learned Counsel, we have perused the First Information Report and the statement of Mohan Mujral (PW-1). The relevant allegation in the F.I.R. reads as follows: 'At this both Pappu (appellant) and Ganeshi said - strike at his Daljit.' PW-1 deposed before the Court,