SHARMA, J. - (1.) THIS appeal owes its origin in the judgment dated June 29, 2001 rendered in Sessions Case No. 15/1999 by learned Judge, Special Court (Fake Currency Notes Cases) Jaipur City, Jaipur whereby the two appellants (herein after to be referred as `accused') were convicted and sentenced as under: Rais: U/s. 302 IPC: To suffer life imprisonment and fine of Rs. 200/-, in default to further suffer one month simple imprisonment. Habib: U/s. 302/34 IPC: To suffer life imprisonment and fine of Rs. 200/-, in default to further suffer one month simple imprisonment.
(2.) THE prosecution story is woven like this: On April 22, 1999 around 1. 15 PM the informant Parvej (Pw. 20) submitted a written report (Ex. P-9) at the police station Ramganj Jaipur City to the effect that at about 11. 30 AM on the said day Ahmad (since deceased) and Tabrej came to his residence to meet him. After about 5 minutes when they were going towards Subhash Chowk Rais and Habib (accused) belaboured them near Lal Haveli. Habib caught hold of Ahmad and Rais started inflicting blows on the person of Ahmad with knife. When the informant raised cries Habib and Rais fled away from the spot. THE informant and Tabrej took the injured Ahmad to hospital in auto-rickshaw where he was declared dead. On the basis of said report a case under section 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed, statement of witnesses under section 161 Cr. P. C. were recorded, necessary memos were drawn, accused were arrested and at the instance of Rais knife was recovered. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Judge, Special Court (Fake Currency Notes Cases) Jaipur City, Jaipur. Charge under section 302 IPC was framed against the accused Rais, whereas Habib was charged under section 302/34 IPC. THE accused denied the charges and claimed trial. THE prosecution in support of its case examined as many as 22 witnesses and exhibited 22 documents. In the explanation under section 313 Cr. P. C. , the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. Death of Ahmad was indisputably homicidal in nature As per post mortem report (Ex. P-13) following ante mortem injuries were found on the dead body: ``1. Abrasion 1 x 1/2cm reddutions (Lt.) tibinal upper. 2. Abrasion 3 x 1cm reddutions fronto medial of Lt. elbow joint. 3. Incised wound of size 1/2 x 1/4 cm skin deep oblique Lt. side neck lower anterior laterally fresh clotted blood. 4. Incised wound 2 x 1/2 cm x skin deep oblique fresh clotted blood Lt. side abdomen near umblicus 4cm lt. side from umblicus. 5. Incised wound 2 x 1/2 cm skin deep oblique fresh clotted blood over lt. arm upper 1/4 part medially axillary area. 6. Incised wound 2 1/2 cm x 1cm oblique and skin deep. Fresh clotted blood over posterior bonder of Rt. axilla middle part. 7. Incised wound (stab) wound of size 21/2 x 1cm x chest cavity deep oblique fresh clotted blood over left. side chest anteriorly near mammary line lower part over in between 5th and 6th inter costal space segram''. The cause of death was shock brought about as a result of injuries to vital organs. According to Dt. H. L. Bairwa (Pw. 13), who performed autopsy on the dead body, the injuries were found sufficient, in the ordinary course of nature, to cause death. The formation of the prosecution case is based on the testimony of informant Parvej (Pw. 20) and Tabrej (Pw. 4), who were examined as eye witnesses of the occurrence. We have heard the submissions advanced before us and carefully scanned the material on record. We first proceed to discus the case of accused Habib, who was charged for having committed offence under section 302/34 IPC. The informant Parvej (Pw. 20) in his cross examination deposed that Habib was only intervening and made attempt to resolve the matter. He stated that:
(3.) ;g ckr lgh gs fd tc esaus kxmk ns[kk rks gchc chp cpko dj jgk Fkka dhkh vgen dks idm jgk Fkk] dhkh jbzlk dks idm jgk Fkka** It is trite law that section 34 IPC is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. Common intention requires a prior consent or a pre-planning. It is intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed. Having carefully scanned the material on record we find that the accused Habib did not share common intention with accused Rais. Habib was only present at the scene of occurrence and only made attempt to intervene. Thus charge under section 302/34 IPC is not established beyond reasonable doubt against accused Habib. ;