IMPORTANT POINT
A common intention may be developed on spot. Although a person may not be held guilty for having a common object, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others.

Headnote:Indian Penal Code, 1860 – Sections 143, 148, 341, 326, 302, 120B r\w 149 – Prosecution of appellant along with six others for causing death of deceased by attacking him with swords and bats – Trial Court while convicting appellant acquitted other accused persons on ground that apart from appellant nobody lese was named in FIR – Appeal – Allowed by High Court holding appellant guilty only u\s 324 r\w 34 of IPC and 304 part 1 r\w 34 – Appeals there against by State and Appellant - High Court while agreeing with findings of Trial Judge though opined that appellant was one of persons who had participated in attack on deceased and that blow was given by Appellant with a sword - However, High Court observed that he had no intention to kill – Categorical statement of PW-10 that quarrel arose while playing game - Injuries suffered by A. 2 and injuries sustained by Decasaed and P.W.4 proved that they were caused in a sudden fight and in heat of moment – No undue advantage was taken by Appellant - Act though rash was in heat of moment and it squarely fell under Exception (4) of Section 300 – Hence, held that act fell under Part I of Section 304 of IPC and not u\s 302 of IPC - Offences under Sections 120-B, 143, 148 and 341 however held not to be proved.(Para 11)
       Indian penal code, 1860 – Offence of murder - Recital made in FIR showed that appellant had sought to attack deceased while he was on his motorcycle – FIR as also evidence of prosecution witnesses 4 and 5 revealed that deceased was chased by all accused – Decasaed was assaulted by all accused - Specific role played by appellant had not been disclosed – Nothing stated as to whether appellant alone was responsible for causing death - Deceased suffered as many as 19 injuries - Some injuries were inflicted on vital parts of body and some were only on hands and legs - Nothing on record to show that appellant inflicted any injury on a vital part of body of deceased – Hence Section 34 held not to be attracted - Accused, other than appellant, had been acquitted by Trial Judge – No appeal there against was preferred by State - Prosecution, hence could not say that appellant had any common intention with any other accused persons who were named in First Information Report - Conviction u\s 304, Part I r\w Section 34 could not be sustained – However conviction of appellant u\s 324 of Indian Penal Code was upheld. (Paras 13, 14, 15, 16, 19, 20)
       Common intention – A common intention may be developed on spot - Although a person may not be held guilty for having a common object, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others. (Para 13)
       Facts of the case:
       Appellant herein in the instant case was prosecuted along with six others for causing death of deceased by attacking him with swords and bats. Trial Court while convicting appellant acquitted other accused persons on ground that apart from appellant nobody lese was named in FIR. Appeal there against was allowed by High Court holding appellant guilty only u\s 324 r\w 34 of IPC and 304 part 1 r\w 34.
       Present Appeals against said order of High Court have been preferred by appellant and State.
       Findings of the Court:
       The Court held that High Court while agreeing with findings of Trial Judge though had opined that appellant was one of persons who had participated in attack on deceased and that blow was given by Appellant with a sword. However, High Court observed that he had no intention to kill. As per categorical statement of PW-10 quarrel arose while playing game. Injuries suffered by A. 2 and injuries sustained by Decasaed and P.W.4 proved that they were caused in a sudden fight and in heat of moment. No undue advantage was taken by Appellant. Act though rash was in heat of moment and it squarely fell under Exception (4) of Section 300. Hence held that act fell under Part I of Section 304 of IPC and not under section 302 of IPC. Offences under Sections 120-B, 143, 148 and 341 however held not to be proved.
       FIR as also evidence of prosecution witnesses 4 and 5 revealed that deceased was chased by all accused. Decasaed was assaulted by all accused. Specific role played by appellant had not been disclosed. Nothing was stated as to whether appellant alone was responsible for causing death. Deceased suffered as many as 19 injuries. Some injuries were inflicted on vital parts of body and some were only on hands and legs. There was nothing on record to show that appellant inflicted any injury on a vital part of body of deceased. Hence Section 34 held not to be attracted. Accused, other than appellant, had been acquitted by Trial Judge. No appeal there against was preferred by State. Prosecution, hence could not say that appellant had any common intention with any other accused persons who were named in First Information Report. Conviction u\s 304, Part I r\w Section 34 could not be sustained. However conviction of appellant u\s 324 of Indian Penal Code was upheld.
       Result: Appeal partly allowed.

JUDGMENT

S.B. SINHA, J. —

1.These appeals arise out of a judgment and order dated 13.09.2005 passed by a Division Bench of the High Court of Karnataka at Bangalore in Criminal Appeal No. 359 of 2005.

2.Appellant with six others was charged for commission of offences under Sections 143, 148, 341, 326, 302, 120B read with Section 149 of the Indian Penal Code for causing death of one Udaya Kumar (deceased) on 19.10.2003.

3.The case of prosecution is as under :

“19.10.2003 was a Sunday. The deceased and Sudhakar Bollaje (PW-4) were going on a motorcycle from Krishnapura to Ganeshpur. Allegedly, the motorcycle was stopped near Block No. II of village Kattipalla by a boy aged about 20 years. Appellant herein together with Siraj, Jubaid and Iqbal accompanied by 2-3 persons surrounded the motorcycle. They were armed with swords and cricket bats. Nooruddin, appellant herein, attacked the deceased with a sword, which he was carrying. PW-4 attempted to prevent it and in the process sustained an injury on his left hand. Udaya jumped from the motorcycle and ran towards the playground of the school. While he was climbing on the steps of the school, the appellant and his associates chased him and attacked him with swords and bats. PW-4 was also hit by a sword on his leg. He escaped and ran away.

4.PW-4 allegedly met one Ashok Shetty (PW-11) who examined himself as PW-11. They went to Suratkal Padmavathi Hospital wherein he was admitted. An information was sent to the police station. Statement of PW-4 was recorded. It was treated to be a First Information Report. However, a tense situation came into being. Even an inquest could not be conducted immediately.

5.In his statement before the police, PW-4 took the names of Siraj, Jubaid and Iqbal. However, in his deposition, he stated that he had taken their names wrongly. According to him, the real culprits are the appellant herein and Accused Nos. 2 to 7. All the accused were arrested on 21.10.2003. Some weapons were allegedly recovered.

6.In view of the question involved herein, it is not necessary for us to notice the evidence of the prosecution witnesses examined on behalf of the State. It is suffice to say that the learned Trial Judge inter alia on the premise that out of seven accused, apart from the appellant, nobody was named in the First Information Report, recorded a judgment of acquittal. Appellant herein was convicted under Sections 143, 148, 341, 326, 302 read with Section 149 of the Indian Penal Code. The State did not prefer any appeal against the said judgment of acquittal. An appeal was preferred against the judgment of his conviction before the High Court by the appellant. By reason of the impugned judgment, the High Court allowed the said appeal. The High Court found the appellant guilty under Section 324 read with Section 34 of the Indian Penal Code and sentenced him to rigorous imprisonment for one year and also under Section 304, Part I read with Section 34 sentenced him to undergo rigorous imprisonment for eight years.

7.Both the appellant and the State are before us.

8.With a view to appreciate the question involved, we may notice the first information report. PW-4, the first informant and PW-5, Balakrishan who was also an eye-witness proved the prosecution case only to the extent of the First Information Report. The State in their respective examinations in chief only proved the contents of the first information report.

9.It is also relevant to mention that there were two cricket playgrounds. The incident occurred when a cricket match was being played on one of the grounds. Appellant was, however, said to be on the other ground. According to PWs 4 and 5, a quarrel ensued resulting in injury being caused to Imthiyaz by the deceased and PW-4, whereafter they were assaulted by others. It has not been disputed that Imthiyaz suffered an injury. It was proved by PW-17 Dr. Hemalatha and the following injuries were noticed :

“Obliquely running lateral cut lacerated wound measuring

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2007 Supreme(SC) 712

IMPORTANT POINTA common intention may be developed on spot. Although a person may not be held guilty for having a common object, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others.

Cases Referred (5)

IMPORTANT POINT
A common intention may be developed on spot. Although a person may not be held guilty for having a common object, in a given situation, he may be held guilty for having a common intention, but such common intention must be shared with others.