IMPORTANT POINT
There is no uniform inflexible rule for applying principle of common intention and inference therefor must be drawn from totality of facts and circumstances of each case.

Headnote:Indian Penal Code, 1860 - Section 302/34 - Appellant, brother in law of co-accused A1 was convicted for murder of brother of A1 - Informant PW1 and mother of deceased PW6 were eye- witnesses of incident - Appeal - Contention that appellant though known to informant was not named in FIR and that PW6 did not attribute any overt act on his part - Court has to take into consideration entire circumstances surrounding incident and may not start with a presumption that PW1 was not a truthful witness - Accused A1, working in Border Security Force had grudge against deceased that deceased had been harassing his wife - According to PW1, first information was recorded by some person sitting outside the police station - PW1 and PW6 named appellant in their u/s 161 Cr.P.C. statement which was recorded immediately after incident and registration of case - PW6 was injured witness who had sustained grievous injuries while trying to save her son - Some discrepancies as regards actual overt act played by appellant were not of much significance - Question whether a person was implicated by way of an after thought or not must be judged having regard to entire factual scenario - Common intention on part of appellant in committing crime with A1 stood established - Conviction of appellant called for no interference.
       Held : We have perused the First Information Report. Therein even no statement had even been made that P.W.6 (Mooli Devi) had suffered serious injuries. She, indisputably, was brought to the hospital. She had been receiving treatment by P.W.12-Dr. Pramod Kumar Sharma. We have noticed hereinbefore at some length that the Investigating Officer had gone to the place of occurrence immediately thereafter, carried out the preliminary investigation and recorded the statements of witnesses. He must have come back to the town and recorded the statement of Mooli Devi. It has not been disputed before us that P.W.1 and P.W.6 in their statements before the police categorically named Appellant as one of the persons accompanying Pitram and other accused persons. There may be some discrepancies in their statements as regards the actual overt act played by him, but the same, in our opinion, is not of much significance. Whereas P.W.6 in his statement before the police did not allege any overt act on his part, she did so in her statement in the Court. Similarly, P.W.1, as noticed hereinbefore, although had not named Appellant in his First Information Report, but both in his statement before the police as also in his statement before the Court, not only named him but attributed specific overt acts on his part. (Para 11)
       The First Information Report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the First Information Report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that P.W.1 did not name him in the First Information Report, we do not find any reason to disbelieve the statement of Mooli Devi-P.W.6. The question is as to whether a person was implicated by way of an after-thought or not must be judged having regard to the entire factual scenario obtaining in the case. P.W.6 received as many as four injuries. (Para 14)
       A number of injuries suffered by the deceased clearly point out that it could not have been inflicted by one person. Common intention on the part of the accused No.1 together with others to commit the murder of Moosaram can, therefore, be inferred. (Para 17)
       There is no uniform inflexible rule for applying the principle of common intention. The inference therefor must be drawn from the totality of the facts and circumstances of each case. It is difficult to find out two similar cases. (Para 18)
       It is not a case where there could not be a prior arrangement. Had there been no prior arrangement, they could not have reached the place of occurrence together in a vehicle. They would not be carrying any weapon. They would not have acted conjointly in perpetrating the crime. They would not have made searches together for PW-1 and fled away together. The prior-concert on the part of the accused may be determined having regard to the subsequent conduct of the accused. Thus, prior-concert in the instant case has also been proved, inter alia, by subsequent conduct.(Para 26)
       Applying the legal principles as noticed, we unhesitatingly are of the opinion that common intention on the part of the appellant in committing the crime with Pitram stands established.(Para 30)
       For the reasons aforementioned, we are of the opinion that the learned Trial Judge and the High Court have not committed any error in passing the impugned judgment of conviction and sentence. The appeal is dismissed accordingly.(Para 34)
       (ii) Criminal Trial - Non-naming of known accused in FIR - Question whether a person was implicated by way of an after-thought or not must be judged having regard to entire factual scenario.
       Held : The First Information Report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the First Information Report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that P.W.1 did not name him in the First Information Report, we do not find any reason to disbelieve the statement of Mooli Devi-P.W.6. The question is as to whether a person was implicated by way of an after-thought or not must be judged having regard to the entire factual scenario obtaining in the case. (Para 14)

JUDGMENT

S.B. Sinha, J. - Appellant is before us aggrieved by and dissatisfied with a judgment of conviction and sentence passed by a Division Bench of Rajasthan High Court, Bench at Jaipur in D.B. Criminal Appeal No.765 of 1999. He was proceeded against for commission of murder along with one Pitram, his brother-in-law. Pitram, accused No. 1 (A.1), Mali Ram, the first informant (P.W.1) and Moosaram are brothers. Mooli Devi is their mother. A First Information Report was lodged at about 9.30 p.m. on 13.10.1996 in relation to an incident which took place at the Dhani of Mali Rams father, which is situated on Bhudoli Road, whereat, allegedly, the said Pitram committed murder of the said Moosaram at about 8 p.m. on the same day.

2. P.W.1, in his First Information Report, alleged that he and the deceased carried some household articles from town Neem Ka Thana and went to their fathers Dhani. They stopped there, talked to their mother and left for their Dhani at Lambawali. When they reached the field of Darogas, they heard shouting of their mother, whereupon they started running, sensing that they would be attacked. Moosaram was then attacked by 4-5 persons. It was alleged that Pitram, A.1, his brother, who at the relevant time had been working at Jaisalmer in Border Security Force, having bakda in his hand attacked the deceased, as a result whereof he fell down, whereafter his associates started assaulting him with respective weapons in their hands. Moosaram shouted at his brother to save him. He ran and hid himself in the crops. The accused and his associates searched for him with torches in their hands, but because of shoutings of Moosaram they fled away.

3. He reached the police station immediately after the occurrence. The investigation was started by P.W.17-Surendra Kumar Bhati. It is not in dispute that P.W.6-Mooli Devi, mother of the deceased as well had sustained injuries. The Investigating Officer came to the place of occurrence and prepared a rough site plan on the basis whereof later a scaled site plan was prepared. He collected blood stained soil and ordinary soil from the place of occurrence, prepared memo, obtained signatures of the witnesses thereupon. He also prepared Panchayatnama of the deceased Moosaram. He also seized the blood stained clothes of Moosaram. He recorded the statements of witnesses Mahavir, Mali Ram, Mooli Devi and Khyali Ram on the same day. It appears that apart from P.Ws. 1 and 2, two other witnesses, namely, P.W.8-Khyaliram and P.W.9-Sarjeet Singh were eye-witnesses. However, their statements were recorded later.

4. The motive for commission of the said offence by Pitram was said to be that Moosaram allegedly used to harass his wife.

5. While Appellant along with the said Pitram was convicted for commission of an offence under Section 302/34 Indian Penal Code, other accused, who were four in number, were acquitted, inter alia, on the premise that they had not been properly identified and no individual overt acts was attributed to them.

6. Accused No.1 is not before us. He, thus, has accepted the verdict.

7. Mr. Uday Umesh Lalit, learned Senior counsel appearing on behalf of Appellant would submit:-

(i) Appellant was known to the informant and having regard to the fact that he could identify the assailants of his brother, there was no reason as to why he was not named;

(ii) The mother of the deceased, although named Appellant in her statement under Section 161 of the Code of Criminal Procedure Code, 1973 before the Investigating Officer, she did not attribute any overt act on his part.

(iii) Presence of P.Ws. 8-Khyaliram and P.W.9-Sarjeet Singh at the scene of occurrence was highly doubtful as their statements were recorded by the police after a few days.

It was pointed out that P.W.8 at one place of his deposition alleged that his statement was taken by the police 5-7 days after the incidence and at another place stated that the same was 10 to 11 days thereafter. The statement of Sarje

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2006 Supreme(SC) 1247

IMPORTANT POINTThere is no uniform inflexible rule for applying principle of common intention and inference therefor must be drawn from totality of facts and circumstances of each case.

Cases Referred (5)

IMPORTANT POINT
There is no uniform inflexible rule for applying principle of common intention and inference therefor must be drawn from totality of facts and circumstances of each case.