- (1.) The present appeal is directed against the judgment of the High Court of Judicature of Madhya Pradesh at Jabalpur dated 26th August, 2004 affirming the judgment of the Sessions Judge, Datia, Madhya Pradesh dated 30th December, 1998 convicting all the three accused (appellants/petitioners herein) for an offence under Section 302 read with Section 34 of the Indian Penal Code (IPC) awarding life sentence to each one of them with a fine of Rs.2,000/- each in default thereto to undergo rigorous imprisonment for three years.
(2.) We must notice that vide order dated 28th May, 2005, the Special Leave Petition in respect of Petitioner Nos.2 and 3, namely, Mahesh Dhimar and Dinesh Dhimar had already been dismissed. Thus, we have to consider the present appeal only in respect of Appellant No.1, namely, Nand Kishore.
(3.) The learned counsel appearing on behalf of appellant No.1, while impugning the judgment under appeal contended that : A. the prosecution has not been able to prove its case beyond reasonable doubt. In fact, there is no direct evidence to sustain the conviction of the accused. It is further argued that on the contrary, there are serious contradictions between the statements of the alleged eye- witnesses as well as the medical evidence. The accused, thus, was entitled to benefit of doubt and consequent acquittal. B. In any case, the appellant could not have been convicted at all for an offence under Section 302 read with Section 34 IPC as he had no common intention with other accused. It is further submitted that he shared neither participated in the commission of the crime nor was he carrying any weapon. On the cumulative reading of the evidence, the ingredients of Section 34 IPC are not satisfied and, therefore, conviction of the appellant is vitiated in law.;