IMPORTANT POINT
Where five persons came together armed with weapons and three took away the deceased while two prevented others to intervene and those who took away committed murder, the remaining two would also be liable with the help of Section 34 IPC.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34-Appellants convicted under for murdering Shankar Rastogi-Conviction upheld by High Court-Incident witnessed by father of deceased, mother of deceased, three others-They were natural witnesses-Evidence found truthful and credible-Defence of no such occurrence and deceased was murdered by dacoits-No evidence-Narration by grandson to grand mother regarding dacoits have raided was not found really to mean a dacoity (see para 12)-Result-Conviction upheld.
       Held : Though the trial court and the High Court have undertaken a critical scrutiny of the evidence on record, with the help of counsel for the parties, we have also read the entire evidence. There is hardly anything in the cross-examination of the witnesses which may cast a doubt on the truthfulness of their testimony. Their credibility has not been impeached. They are natural witnesses and have deposed in a forthright manner. There is no reason for us to interfere with the findings recorded by the trial court and the High Court. (Para 11)
       Held further : Learned counsel for the appellants could not persuade us to accept the case of the defence that no such occurrence took place and that Shankar Rastogi was killed in the course of dacoity. There is no evidence whatsoever to support the defence case which must be rejected. (Para 13)
       Held finally : We, therefore, find no merit in these appeals which are dismissed. (Para 18)
       (ii) Indian Penal Code, 1860-Sections 302/34-Interpretation of common intention in Section 34-Five persons coming together-Three taking away deceased inside to kill-Two prevented others to intervene-Whether these two, who have not taken overt act in killing, whether can be convicted with the aid of Section 34 for murder under Section 302 IPC? (Yes)-Case law discussed.
       Held : The facts of this case are quite different. Appellants alongwith three others came armed with country made pistols. They came together, and while two of them stood guard and prevented the prosecution witnesses from intervening, three of them took the deceased inside and one of them shot him dead. Thereafter they fled together. To attract Section 34 IPC it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse. The facts of this case are eloquent and the role played by Bal Mukund Rastogi of preventing the prosecution witnesses from going to the rescue of the deceased was the role played by him with a view to achieve the ultimate objective of killing Shankar Rastogi. We, therefore, entertain no doubt that all the five persons who came to the shop of the informant had a common intention to commit the murder of Shankar Rastogi and they acted pursuant to a pre arranged plan. The facts clearly are consistent only with the hypothesis of their acting in furtherance of a common intention. They have, therefore, rightly been convicted with the aid of Section 34 IPC. (Para 17)

JUDGMENT

B.P. Singh, J.-The appellants in these appeals, namely, Nandu Rastogi @ Nandji Rastogi and Bal Mukund Rastogi are brothers; They alongwith one Jagdish Chamar and Mohan Singh were put up for trial before the 2nd Additional Sessions Judge, Rohtas at Sasaram, who found the appellants and Jagdish Chamar guilty of the offence under Section 302/34 IPC and under Section 27 of the Arms Act but acquitted Mohan Singh. They were sentenced to undergo imprisonment for life under Section 302/34 IPC and to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. They preferred three appeals before the High Court but by a common judgment and order, the High Court dismissed the appeals and affirmed their conviction and sentence. Three special leave petitions were preferred before this Court but since Jagdish Chamar did not surrender to his sentence, his special leave petition was dismissed by order dated 3rd December, 2001 while special leave to appeal was granted to the appellants herein.

2. The informant Shyam Mohan Rastogi, PW4 is the uncle of the appellants being the cousin of their father. The deceased Shankar Rastogi was the son of the informant PW.4. It is alleged that in an occurrence which took place at about 7.00 p.m. on 12.11.1985 he was shot dead by appellant Nandu Rastogi. It is the case of the prosecution that the three accused, alongwith two unknown persons, came armed with country made pistols and perpetrated the crime, According to the prosecution the background in which this occurrence took place, and which also discloses the motive for the offence, is that the informant PW4 owned a house which he sold to one Braj Kishore Rastogi, who in turn sold the said house to appellant Nandji Rastogi. Manjoor Ansari, PW1 was the tenant of a shop in that building, but Nandji Rastogi was pressurising him to vacate the premises. Shankar, (deceased) son of the informant, took the side of Manjoor Ansari and declared that he will not permit Nandji Rastogi to forcibly evict him. He even threatened that he may challenge the sale of the house by his father since his father had no legal authority to sell his share in the house. It appears from the evidence on record that Manjoor Ansari is on good terms with the informant and his family members and continued to occupy the shop premises even on the date of occurrence.

3. The case of the prosecution as disclosed in the First Information Report lodged by PW4 at 8.00 p.m. on 12th November, 1985, soon after the occurrence, is that at about 5.00 p.m. the informant was sitting in his shop, namely, Shankar Stores, alongwith his tenant Ayodhya Tiwari, PW5 when Nandji Rastogi came there and warned the informant to caution his son that he should not interfere in his matters. He threatened that if he did not do so his son may be killed. So saying, he went away threatening the informant with dire consequences. At about 6.45 p.m. electricity supply was cut off when he was sitting in his shop alongwith one Shambhu Lal, his son Mukund, Manjoor Ansari, PW.1 and Shankar Rastogi (deceased) his son. Since it was the diwali day, candles and earthen lamps were lit in his shop and elsewhere. 15 minutes later appellant Nandji alongwith his brother appellant Bal Mukund Rastogi, accused Jagdish Chamar and two other unknown persons entered his shop armed with country made pistols. Nandji and Jagdish caught hold of his son and took him inside to the residential apartment which is just behind the shop, at gun point. When the informant and others wanted to intervene, they were prevented by appellant Bal Mukund Rastogi and his companion who stood guard with country made pistols in their hands. They threatened them to keep quiet. After Shankar Rastogi was taken inside the house by Nandji Rastogi, Jagdish Chamar and one other unknown person, he heard the report of gun fire followed by crying of women inside the house. An alarm was raised and the accused fled away threatening them. When he went ins

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2002 Supreme(SC) 989

IMPORTANT POINTWhere five persons came together armed with weapons and three took away the deceased while two prevented others to intervene and those who took away committed murder, the remaining two would also be liable with the help of Section 34 IPC.

Cases Referred (2)

IMPORTANT POINT
Where five persons came together armed with weapons and three took away the deceased while two prevented others to intervene and those who took away committed murder, the remaining two would also be liable with the help of Section 34 IPC.