IMPORTANT POINTS
(1) Common intention - To fasten liability with aid of Section 34 of I.P.C. what must necessarily be proved is a common intention to commit crime actually committed and each accused person can be convicted of that crime, only if it is in furtherance of common intention of all - Totality of circumstances must be taken into consideration.
(2) Examination of accused - Conviction is not vitiated for alleged non-compliance of provisions of Section 313 of Cr.P.C.

Headnote:
(A) Indian Penal Code, 1860 - Section 34 - Common intention - Ingredients - To fasten liability with aid of Section 34 of I.P.C. what must necessarily be proved is a common intention to commit crime actually committed and each accused person can be convicted of that crime, only if it is in furtherance of common intention of all - Common intention pre-supposes prior concert, though pre-concert in the sense of a distinct previous plan is not necessary as common intention to bring about a particular result may develop on the spot - Totality of circumstances must be taken into consideration in arriving at the conclusion whether accused had common intention to commit offence. (Para 29)
(B) Criminal Procedure Code, 1973 - Section 313 - Examination of accused - To enable accused to explain circumstances appearing in evidence against him, all incriminating circumstances appearing against him in evidence must be put to him - But where there has been failure in putting those circumstances to accused, same would not ipso facto vitiate trial unless it is shown that its non-compliance has prejudiced accused - Where there is delay in raising plea, or plea is raised for first time in Supreme Court, it could be assumed that no prejudice had been felt by accused. (Para 44)
(C) Indian Penal Code, 1860 - Sections 302/307/34 - Arms Act, 1959 - Section 27 - Murder and attempt to murder - Common intention - Conviction and sentence - To clinch conviction of appellants for murder of two deceased with aid of Section 34 of I.P.C., prosecution was required to lead clear and cogent evidence - It would be extremely unsafe to convict appellants with aid of Section 34 of I.P.C. for offence of murder - However, indiscriminate firing continued for long and appellants were found present - Appellants are liable to be convicted for offence punishable under Section 307 with aid of Section 34 of I.P.C. - Conviction of appellants is not vitiated for alleged non-compliance of provisions of Section 313 of Cr.P.C. - Conviction of appellants under Section 307 read with Section 34 of I.P.C. affirmed - Conviction and sentence of appellants under Section 302 read with Section 34 of I.P.C. set aside. (Paras 31, 32, 33, 45 and 46)
Facts of the case:
Net result of the impugned judgment and order is that the order of the trial court under Sections 302/307/34 of Indian Penal Code has been affirmed whereas conviction of co-accused Vijay has been set aside.
Findings of Court:
If appellants have already served out the sentence awarded to them under Section 307/34 I.P.C., they need not be taken into custody, after verification of records/custody certificates.
Result : Appeals partly allowed.

JUDGMENT :

Manoj Misra, J.

1. These three appeals are against the judgment and order of the High Court of Delhi (in short “the High Court”) dated 28.07.2009 passed in Criminal Appeal Nos. 962 of 2004; 977 of 2004; 981 of 2004; 14 of 2005; and 61 of 2005, by which Criminal Appeal Nos. 962 of 2004; 977 of 2004; 981 of 2004; and 61 of 2005, preferred by Sunil (appellant in Criminal Appeal No.688 of 2011), Shri Krishna (appellant in Criminal Appeal No.785 of 2011), Ravinder (appellant in Criminal Appeal No.689 of 2011) and Babu Ram @ Fauji (co-accused), respectively, were dismissed whereas Criminal Appeal No.14 of 2005 of co-accused Vijay was allowed. The net result of the impugned judgment and order is that the order of the trial court (i.e., Court of Additional Sessions Judge, Delhi), dated 08.11.2004, in Sessions Trial No.42 of 1999, arising out of FIR No.561 of 1998, P.S. Jahangir Puri, convicting and sentencing Babu Ram @ Fauji, Sunil, Shri Krishan and Ravinder under Sections 302/307/34 of the Indian Penal Code (in short, “the I.P.C.”) has been affirmed whereas conviction of co-accused Vijay has been set aside. It be noted that Babu Ram @ Fauji was also sentenced under Section 27 of the Arms Act, which has also been affirmed by the High Court. The sentence awarded to the appellants, namely, Sunil, Shri Krishan and Ravinder, which is impugned in these appeals, is as under :

(i) Imprisonment for life with fine of Rs. 2000/-, coupled with a default sentence of six months R.I., under Section 302/34 I.P.C.; and

(ii) Five years R.I. with fine of Rs. 1000/-, coupled with a default sentence of three months, under Section 307/34 I.P.C.

Introductory Facts

2. This is a case where, on account of indiscriminate firing by Babu Ram @ Fauji (non-appellant) from his licensed single barrel gun, two persons, namely, Anil Kumar and Vijay, suffered gun-shot injuries and died; and 26 others received pellet injuries, some of them being grievous in nature.

3. Babu Ram, who fired the gun shots from his licensed gun, handed over his gun to the police along with 16 used and 4 live cartridges while setting up a plea of self-defence. The appellants before us and Vijay (who has been acquitted by the High Court) were roped in with the aid of Section 34 of the I.P.C. as persons who exhorted Babu Ram to fire gunshots.

4. According to the prosecution case, on 11.11.1998, there was tension in the locality as boys from the accused side had teased daughter of Lala Satpal. Giving vent to that tension, at about 3.00 pm, an altercation took place between Satpal and Shri Krishan whose son Sunil was present. Anil Kumar (one of the two deceased) i.e., brother of Mangat Ram (PW-2) took side of Satpal. Babu Ram (non-appellant) and his son Ravinder joined the altercation taking side of Shri Krishan. Thereafter, Shri Krishan, his son Sunil, Babu Ram and Babu Ram’s son Ravinder left the place while extending threats that they would teach Satpal and his supporters a lesson. Soon thereafter, Babu Ram, Shri Krishan, Ravinder and Sunil appeared on the roof of PW-2’s house and from there, on the instigation of Shri Krishan, Sunil and Ravinder, Babu Ram fired shots at the supporters of Satpal resulting in death of two persons and injuries to as many as 26 persons.

5. As, according to the prosecution, genesis of the incident was a dispute between two families on account of young male members of one family (i.e., of Sri Krishan) teasing female members of the other (i.e., family of Satpal), the relationship of accused persons inter se assumes importance, which is as below :

(i) Shri Krishan is the husband of Babu Ram’s sister;

(ii) Sunil is son of Shri Krishan;

(iii) Ravinder is son of Babu Ram; and

(iv) Vijay (already acquitted) is a distant relative of Shri Krishan.

6. To prove its case, the prosecution examined 56 witnesses. On the other hand, the appellants including Babu Ram examined 15 defence witnesses. As Babu Ram took the plea of self-defence, the trial court as well as the High Cou