A two-judge Bench of Justice MR Shah and Justice Sanjiv Khanna has held that both the accused with a common intention went to the place of the deceased at midnight which shows that the motive had been established to kill the deceased. Hence, the High Court committed a grave error in acquitting Accused No. 2 – Respondent No.1

Counsel Mr. DP Singh Yadav appeared for the Appellant, while Counsel Mr. RM Sinha appeared for Respondent No. 1 before the Apex Court.

In this case, the Allahabad High Court had allowed the appeal of Respondent No.1 – Accused No. 2 and had acquitted him for the offences punishable under Section 302 read with Section 34 of IPC. Aggrieved, the original informant – son of the deceased preferred an appeal before the Supreme Court.

The Apex Court noted that all the three prosecution witnesses were consistent and fully supported the case of the prosecution. Also, the High Court had specifically observed and held that all the three prosecution witnesses were reliable and trustworthy and there was no reason to doubt them.

In this context, the Bench opined –

"Therefore, once even the High Court also found all the three prosecution witnesses – PW­1, PW­2 and PW­4 trustworthy and reliable and in fact confirmed the conviction of accused No.1 for the offence punishable under Section 302/34 of the IPC, the High Court ought not to have thereafter doubted the presence of accused No.2 – respondent No.1 herein."

Further, the Court observed that once the High Court had even confirmed the conviction of accused no. 1 relying upon all the three eyewitnesses, the HC ought to have confirmed the conviction of Respondent No. 1 – Accused No. 2 also relying upon the three eyewitnesses.

Additionally, the Bench added, "From the reasoning given by the High Court it appears that the High Court has acquitted respondent No.1 – accused No.2 just on the ground that all the three eye witnesses had given him the role of exhortation and no overt act has been assigned to him, this may be due to exaggeration of his role so as to falsely implicate him and see that the father and son are put behind bars."

The Court also that High Court ought to have appreciated that Respondent No. 1 was rightly convicted with the aid of Section 34 IPC as he with a common intention to kill the deceased accompanied his son and on finding the deceased sleeping on the different cot exhorted his son to kill him and thereafter his son killed the deceased by fire arm.

"Therefore, once his presence has been established and proved and specific role of exhortation was assigned to him, the High Court ought to have confirmed the conviction of respondent No.1 – accused No.2 for the offence punishable under Section 302/34 of the IPC," the Bench held.

The Court held that the impugned judgment and order is unsustainable both on law and facts.

Accordingly, the Court allowed the appeal, and the impugned judgment of the High Court acquitting Respondent No. 1 was set aside and quashed. The Court restored the order of the Trial Court convicting him for the offence under Section 302/34 IPC sentencing him to undergo life imprisonment.

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