- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court upholding the conviction of the appellant for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') as was awarded by learned Additional Sessions Judge, Panna, in Sessions Trial No.15/1992.
(3.) Prosecution version as unfolded during trial is as follows: On 30th November, 1991 at about 5.00 p.m. Ram Kishore (hereinafter referred to as the 'deceased') was murdered in an agricultural field. First Information Report was lodged by Manik Lal at Police Station, Pawal in the evening at about 7.00 p.m. Offence was registered as Crime No.124/91 under Section 302/34 IPC. Deceased had eloped with Lalli, sister of the Ramcharan (A-2) and both of them had performed court marriage. The court marriage was registered and Lalli was livng with Ramkishore. The appellant was having enmity on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A- 2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal the co accused pulled the legs of deceased and threw him on the ground. Ramkishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted. Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention.;