Dwivedi, J. - (1.) Three persons, Mahendra Singh, Lakhan Singh and the appellant Sukh Ram, were tried for the murder of one Chunni Lal under S. 302 read with S. 34 I.P.C. by the Sessions Judge, Aligarh. The Sessions Judge acquitted Mahendra Singh, and convicted and sentenced the remaining two to imprisonment for life. On appeal the High Court of Allahabad acquitted Lakhan Singh and affirmed the conviction and sentence of the appellant. Hence this appeal.
(2.) The deceased Chunni Lal had a tea stall near the Bus Stand in Sasni. He was shot dead on 9-3-1967 at about 10.30 P.M. The First Information Report of the incident was lodged by Sundar Lal, a relation of the deceased. The prosecution examined Sundar Lal, Radhey Shyam, Puran Mal and Devi Prasad to prove its case against the aforesaid accused. The Sessions Judge believed all the witnesses. In a careful and sifting analysis of the entire evidence, the learned Judges of the High Court (S.D. Khare and Jagmohan Lal Sinha JJ.) have winnowed out all evidence which could legitimately be objected to by the appellant and have held that the remaining evidence clearly brought home the guilt to him. Counsel for the appellant could not point out any infirmity in their opinion. We have read the entire evidence, and we are satisfied that they have rightly found the appellant guilty of the murder of Chunni Lal.
(3.) Counsel, for the appellant has, however, strenuously urged before us that after the acquittal of Mahendra Singh and Lakhan Singh, the appellant could not be convicted with the aid of S. 34 I.P.C. The charge framed by the Sessions Judge reads: "I... Sessions Judge, Aligarh, hereby charge you Sukharam s/o. Hari Ram, Lakhan Singh s/o. Siri Singh and Mahendra Singh s/o. Gulab Singh as follows: That you on the 9th day of March 1967, at about 10.30 p.m. in the town of Sasni near the bus stand at the shop of Chunni Lal, in furtherance of your common intention which was to commit the murder of Chunni Lal, did commit the murder of Chunni Lal, did commit his murder by one of you firing at him with a pistol, as a result of which Chunni Lal immediately fell down dead, and thereby committed an offence punishable under S. 302 read with S. 34 I.P.C. and within the cognisance of this Court." Thus, the charge specifically mentions that the murder of Chunni Lal was committed by the three accused named therein, namely, Mahendra Singh, Lakhan Singh and the appellant Sukhram. It does not mention that any other persons, known or unknown, were concerned in the commission of the offence. But, in view of the unambiguous evidence tendered by the prosecution in the Sessions Court, no prejudice can be said to have been caused to the appellant by reason of his conviction under Section 302 read with Section 34, Penal Code, even though the two other accused specifically named in the charge have been acquitted. Indeed, the very line of defence adopted by the appellant, as reflected in the cross-examination of the prosecution witnesses, discloses an awareness on his part of the substance and true nature of the allegations levelled against him. Though the charge confines participation in the crime to three named individuals, evidence was led to show that Chunni Lal was murdered by the appellant and two other persons, the fatal shot having been fired by one of these two. At the trial, the heart of the issue therefore was whether there was evidence to prove that the appellant and two others had, in pursuance of their common intention, committed the murder of Chunni Lal. In fact, may be by reason of the variance between the terms of the charge and the trend of the evidence, the learned Sessions Judge while examining the appellant under S. 342 Cr. P.C. questioned him in regard to his participation in the crime along with his 'companions', not along with the two named co-accused. On the central issue arising in the case, the Sessions Court found:"This direct evidence taken as a whole proves beyond any reasonable doubt that Sukh Ram along with two other companions had gone to Chunni Lal's shop at that time and one of his companions fired at Chunni Lal with a pistol while Chunni Lal was closing his shop.";