STATE OF GUJARAT Vs. KATHI AMERU BHIMABHAI

JUDGEMENT

(1.) Respondent herein along with another accused (his brother) was charged for offence under sec. 302 read with sec. 34 of the Indian Penal Code. The incident took place on 11/01/1980 at about 4-30 P M. on Diamond Talkies Road at Jetpur (Dist. Rajkot). It was alleged that the respondent and his brother in furtherance of their common intention caused injuries to one Salim Mohamad with knife which resulted into the homicidal death of said Salim Mohamad the victim. In addition it was also charged that both the accused abetted each other in causing the aforesaid offence of murder and thus they were also charged under sec. 302 read with sec. 109 of the Indian Penal Code.

(2.) On trial the learned Addl. Sessions Judge Rajkot at Gondal acquitted both the accused as per his judgment and order dated 18/07/1980 The State of Gujarat has preferred appeal against the judgment and order of acquittal passed by the learned Addl. Sessions Judge. This Court (Coram: G. T. Nanavati & S. L. Talati JJ.) as per order dated 4/02/1981 admitted the appeal against respondent herein and dismissed the appeal against Respondent No. 2 i.e. Kathi Anak Bhimbhai. In this background contends the counsel for the defence that in view of the fact that the charge against the accused was under sec. 302 read with sec. 34 of the Indian Penal Code only and as there was no substantive charge for offence under sec. 302 and once the acquittal of another accused has become final it would not be permissible to the Court to hold the respondent-accused guilty of offence under sec. 302 read with sec. 34 of the Indian Penal Code. In essence this contention requires to be dealt with in this appeal.

(3.) Section 34 which lays down the principle of constructive liability reads as follows: