IMPORTANT POINT
The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34, 149, 147, 148, 201, 436 and 380-Murderous Assault-Large number of persons armed with weapons doing a series of acts by throwing bombs, dragging out victims, indiscriminately assaulting them, burning dead bodies-Eyewitnesses, though related witnesses, categorically stated in detail the manner of assault and the roles played by accused persons-Targets were deceased persons-Definite roles have been attributed to accused persons-Eleven of them scaled the roof and dragged out the deceased-Eight of them carried the dead bodies for the purpose of burning-So far as cleaning the blood and throwing dead bodies to the well etc. is concerned the accusations are general in nature-Eye witnesses have identified accused persons and have stated about their presence-Impugned judgment of conviction of accused for offence u/s 302/34 held sustainable.
       Held : Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (Para 20)
       The plea that some of the accused persons did not commit any overt act would really of no consequence. They were not mere sightseers as claimed. There is nothing to show that they had dissuaded the persons from committing the criminal act or withdrew at any point of time during the course of the incident constituting by itself or as a step in furtherance of the ultimate offence. There is nothing unusual in deceased Gopi running after the deceased Kishun and other eyewitnesses. In order to ascertain as to what was the cause of the explosion and to run after the deceased seeing him towards house of PW-6. The eyewitnesses have identified the accused persons and have stated about their presence inside the house of PW-6. There is no discrepancy so far as the identification is concerned and about the weapons carried by the identified accused persons. It has also come in evidence that the targeted victims were the deceased persons with whom the animosity is admitted. The objective findings recorded by the IO on spot verification also are in line with the evidence of eyewitnesses. So far as the absence of any independent witness is concerned, the evidence of PW-6 is very relevant. He has stated that the accused persons were surrounding the village after the incident. In the village Malti there are 100 houses out of which 5 to 6 houses are of Yadavs, 15 to 16 are of Bhumihars and people of other castes are also there. Before the present occurrence, Arjun and Saudhi who were Bhumihars by caste were killed. Yadavs of the village were accused of the murder and the deceased Kishun and Gopi were the main accused. Accused Lakhan is the brother of deceased Saudi Singh and Nandu Singh is the son of Arjun Singh. It has to be noted further that though the eyewitnesses were examined at length in the cross-examination nothing material to belie their credibility or discard their evidence was brought out. (Paras 21 and 22)
       (ii) Indian Penal Code, 1860-Section 149-Unlawful Assembly-Common object-Vicarious liability-Distinction between common object and common intention. (Paras 11 to 14)

JUDGMENT

Arijit Pasayat, J.-A Division Bench of the Patna High Court found the appellants guilty of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ). In addition, appellants Lakhan Singh, Janardan Singh, Ram Janam Singh, Dani Singh, Raghu Singh, Ram Charitar Singh and Chandar Singh were found guilty of offence punishable under Section 201 IPC and sentenced each to undergo five rigorous imprisonment with a fine of Rs. 3,000/- with default stipulation. It directed that the fine on realisation was to be paid to the informant by way of compensation. Appellant Lakhan Singh was additionally convicted for offence punishable under Section 436 IPC to undergo life imprisonment.

2. The present appeals have been filed by 21 persons. Twenty seven persons were named in the FIR and charge sheet was filed initially against 24 persons. In terms of Section 319 of the Code of Criminal Procedure, 1973 (in short the Code ), three more persons were added. Twenty seven persons were convicted by the trial Court and all of them filed appeals before the High Court. It has to be noted, as stated by learned counsel for the appellants, that one of them Lakhan Singh has served out the sentence, and two others namely Balinder Singh and Gaya Singh were absconding. Three of the accused persons died during pendency of the appeal before the High Court.

3. Prosecution version which led to the trial in a nutshell is as follows:

On 6.7.1983, informant Ramu Yadav (PW-11), after easing was returning to his house at about 8 a.m. and his uncle Kishun Yadav (hereinafter described as deceased D-1 ) at that time was also returning to his house from the northern direction and he was ten yards ahead of the informant. When the informant and the deceased Kishun reached a lane near the house of Sadhu Kahar, the informant saw a number of persons variously armed with Saif, Garasa, Bhala, guns etc. coming out from the Dalan of Bhuneshwar Singh who all challenged deceased Kishun and attacked him. Appellant Lakhan Singh, who was carrying a bag, took out a bomb from his bag and hurled it on deceased Kishun, who after receiving injury, managed to enter the house of his cousin Phekju Yadav (PW-6). Following him, all the appellants alongwith Biro Singh, Pragash Singh and Ram Singh (all the three since dead) along with 15 to 20 others, variously armed entered the house of Pheku Yadav. The informant also, following the appellants and their companions, entered the house of his uncle Pheku Yadav (PW-6). In the meantime, Gopi Yadav, father of informant (hereinafter referred to as deceased D-2 ) also reached there and, thereafter both deceased, Gopi and Kishun climbed on the Matkmotha (box room) in order to save their lives. Appellants Lakhan Singh, Ram Charitar Singh, Ram Janam Singh, Chhotan Singh, Raghu Singh, Balindra Singh, Manoj Singh, Bhola Singh, Baban Singh, Nandu Singh, Yado Singh and ten to fifteen unknown persons also, along with weapons, climbed from outside to the roof of house and other appellants remained in the courtyard and verandah of the house. The appellants, who had climbed went to Matkotha, started assaulting both the deceased with guns, Bhala, Saif etc. The appellants, who had gone on the roof of the house, uprooted the tiles and bamboo sticks of Matkotha and appellant Lakhan Singh, after sprinkling kerosene oil on the roof, set fire and, thereafter the appellants, who had climbed on Matkotha, dragged deceased Kishun and Gopi to the verandah where they, after piercing Garasa, Bhala, Saif, killed them. Thereafter, appellant Raghu Singh, Janardhan Singh, Ram Charitar Singh, Ram Janam Singh, Dani Singh, Chander Singh, Lakhan Singh along with co-accused Biro Singh carried the dead bodies on a cot towards eastern side of village and other appellants, after scrapping the blood which had fallen on the ground with straw, put it in a nearby well and they also washed the blood drops from the walls of the house by wat

Click Here to Read the rest of this document

2004 Supreme(SC) 309

IMPORTANT POINTThe totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence.

Cases Referred (12)

IMPORTANT POINT
The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence.