KANWALJIT SINGH AHLUWALIA, J. - (1.) THE appellant, Sahbuddin @ Sahabdeen, has preferred the present appeal against the impugned judgment dated 14.12.2004, rendered by the Additional Sessions Judge (Fast Track) No.1, Alwar, whereby the appellant was held guilty of offence under Section 302 IPC read with Section 34 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/ -, in default thereof to undergo one year R.I.
(2.) WE have been informed that the co -accused Hakka @ Hakamdeen, who was substantively convicted for the offence under Section 302 IPC, vide a separate judgment dated 31.01.2004, passed by the trial court, has expired. However, the appeal (D.B. Criminal Appeal No. 227/2004) filed by Hakka @ Hakamdeen against the judgment dated 31.1.2004 is pending before this Court.
(3.) THE case of the prosecution is that on 20.10.2002, at about 9:00 AM, the appellant accompanied by Hakka @ Hakamdeen, Sheodan, Abbas, Hamidi, Sayara and Baskar, came armed with fire arm, lathi and Farsi and had attacked the family members of the complainant, Badlu Khan (P.W.4). The short fired by Hakka @ Hakamdeen hit Leela Khan son of Badlu Khan, due to which he died. The appellant is alleged to have fired a shot, which hit a wall and had not caused injury to anybody. We have been called to determine whether qua the appellant common intention falling within the ambit of Section 34 IPC is attracted or not? The complainant, Badlu Khan (P.W.4) presented a written report (Exhibit -P/3) before Janesh Singh Tanwar (P.W.8), who was then posted at SHO, Police Station, Sadar, Alwar. The written report (Exhibit -P/3) on the basis of which a formal FIR (Exhibit -P/4) was registered, when translated into English, reads as under: "To SHO Saheb, Police Station Sadar, Alwar Subject: Lodging of the report. Sir, It is submitted that I am a resident of village Bhuaka. Today on 20.10.2002, I along with my family members were constructing our house and were doing masonry work. I along with my son Pappu, Nayab Khan, Leela Khan and ladies of the house were present. At about 9 o'clock in the morning, our neighbour, Hakka @ Hakamdeen and Sahabdeen armed with guns and their family members, namely Sheodan, Abbas, Hamidi, Sayara and Baskar armed with lathi and Farsi came. They all with common intention encircled us. Hakka fired a shot which hit in the chest of my son Leela Khan. Leela Khan on receipt of gun shot injury, fell in the gallery. Sahabdeen fired another shot, which hit a wall of the house. Others said that we should be killed and started throwing stones upon us. We saving our lives went inside the house. The whole village assembled. The accused ran away from the spot on two tractors. Sheodan and Abbas among them, also fired shots in order to kill us, but the shots went above us and had not hit us. The dead body of my son, Leela Khan is lying in the gallery. The report is being presented. Action be taken. Applicant Badlu Khan s/o Dhotali Khan By caste Mev, R/o. Bhuaka, Police Station Sadar, Alwar." ;