2001 Supreme(SC) 1007

2001(5) Supreme 746
SUPREME COURT OF INDIA
(From Allahabad High Court)
M.B. Shah and Doraiswamy Raju, JJ.
Gopi Nath @ Jhallar -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 1014 of 1999
Decided on 31-7-2001
Counsel for the Parties :
For the Appellant : Manoj Prasad, Advocate.
For the Respondent : Praveen Swarup, Prashant Choudhary, Advocate for Pramod Swarup, Advocate/Advocates.

IMPORTANT POINT
The application for the principles enshrined in S. 34 IPC are rightly applied to the facts in this case and the conviction of appellant u/s 302/34 IPC is well-merited and calls for no interference in this appeal.

Headnote:Indian Penal Code, 1860-Sections 302 r/w 34 and 324-Nature of offence-Whether murder in furtherance of common intention or causing hurt-Prosecution establishing old enmity between parties-Accused came with common intention to kill by lethal weapons like pharsa and lathi-Ocular witnesses to evidence-Deposing infliction of incised wounds-Independent witnesses not forthcoming due to fear-Recovery of soiled earth not marked in site plan-Not a major infirmity Courts below convicting appellant alongwith his two companions under Section 302/34 IPC-Whether correct? (Yes)-Non-examination of any independent witness or not marking recovered earth in site plan whether fatal to prosecution? (No)-Result-Appeal dismissed.

       Held : We have carefully considered the submissions of the learned counsel on either side. As for the challenge made to the conviction under Section 302 read with Section 34 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality of persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action-be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The Section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre-arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case. So far as the facts of the case on hand are concerned, in our view the Courts below cold not be in any manner faulted with, for arriving at the conclusion to indict all the accused applying the principles engrafted in Section 34, IPC, to punish them under Section 302, IPC. That Ram Prasad was actively assisting the accused in the case involving the murder of Triveni Prasad and that in another police complaint against the accused, Ram Prasad was cited as a witness for the occurrence, though a report has been filed on it, has annoyed the accused in this case on account of their relationship with Triveni Prasad as well as his preparedness to be a witness in the case of alleged house burning against the accused, sufficiently establish the motive and common intention of the accused to do away with Ram Prasad. The appellant and Jata Shanker were also armed with Farsa and Shyam Shanker was armed with a lethal weapon like lathi. The evidence on record established their conduct in shouting in unison to do away with Ram Prasad and the appellant along with the other giving a blow simultaneously with Farsa, in spite of the victim trying to run away from the place by surrounding him and the further evidence about the exhortation said to have been made by Shyam Shankar exhibiting lathi that anybody who tries to come to the rescue of the victim will also be done away with, are more than sufficient in law to substantiate the concerted move and the common intention shared by all the accused to do away with Ram Prasad. One of the blows was not only fatal and considered on the basis of medical evidence to be sufficient in the normal course to cause death, but the simultaneous attack with Farsa by the appellant and Jata Shankar have been held sufficient to constitute the required overt acts in furtherance of the common intention shared by all of them to put an end to the victim. Consequently, the application of the principles enshrined in Section 34, IPC, to the case on hand was fully justified and no exception could be legitimately taken to the same, on the peculiar facts of this case, to which due reference extensively had been made by both the courts below. The conviction under Section 302/34, IPC, is, therefore, well-merited, calling for no interference in this appeal. The grievance about the non-examination of any in dependent witness from public or the shop owner in front of whose shop the occurrence has taken place, has been specifically dealt with and, in our view, the reasons given therefor in the judgment under challenge cannot be said to be erroneous. The fact that the accused formed a definite and desperate warring group of criminals and for quite sometime there had been open hostilities exhibited involving criminal actions would normally deter anyone from the public extending their service or co-operation to be a witness against them. Apart from this aspect of the matter, when the Investigation Officer (PW 6) was in the box nothing appears to have been said or even suggested to him about the non-examination of the owner of the shop. As for the lapse in not specifically marking in the site plan of occurrence about the actual place of recovery of soiled earth, the courts below did not consider it to be such a grave infirmity in the teeth of specific mention about the same in the case diary and the specific evidence of PW-5 considered otherwise sufficient to prove this fact. We see nothing wrong or illegal in the said reasoning of the courts below. The evidence of PWs 1 & 2, inspired confidence with the courts below, despite the fact that they are persons belonging to the group of Ram Prasad and nothing concrete or substantial has been shown to us from the materials on record to castigate their version or condemn their evidence and take a different view from the one concurrently held by both the courts below. For all the reasons stated above, we find absolutely no merits in the above appeal. The same fails and shall stand dismissed. (Paras 8, 9, 10, and 11)