Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1190

SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Ram Naresh - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 3577 of 2023
Decided On : 01-12-2023

Advocates appeared:
For the Appellant(s) : Mr. Bibek Tripathi, Adv. Mr. Ashish Kumar Upadhyay, Adv. Mr. Y. Lokesh, Adv. Ms. Maitri Goal, Adv. Mr. Naganpillai, Adv. Ms. Bhaswati Anukampa, Adv. Mr. Sanjeev Kumar, Adv. Mr. Sachin Kumar Verma, Adv. Mr. Arun Singh, Adv. Mr. P.V. Yogeswaran, AOR
For the Respondent(s): Mr. Garvesh Kabra, AOR Mrs. Harshita Raghuvanshi, Adv. Mr. Abhishek Jaju, Adv. Mrs. Pooja Kabra, Adv. Mr. Ahmer Shaikh, Adv.

IMPORTANT POINT
Common intention is a psychological fact and it can be formed a minute before actual happening of incidence or earlier even during occurrence of incidence.

Headnote:
Indian Penal Code, 1860 – Sections 302/34 – Criminal Procedure Code, 1973 – Section 313 – Murder – Common intention – Life imprisonment – When a criminal act is done by several persons with a common intention each of person is liable for that act as it has been done by him alone – Where participation of accused in a crime is proved and common intention is also established, Section 34 IPC would come into play – To attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind – Common intention is a psychological fact and it can be formed a minute before actual happening of incidence or earlier even during occurrence of incidence – In case at hand, accused persons having cornered deceased, assaulted him with lathis and iron rod – Accused persons had come on spot collectively and gave serious vital blows to deceased with weapons they were armed with causing his death – Collective action of all accused persons indicated sharing of common intention – Appeal dismissed. (Paras 8, 9, 10, 11, 13 and 16)
Facts of the case:
Correctness of judgment and order of the trial court convicting and sentencing the appellant for life imprisonment for an offence under Section 302 read with 34 of Indian Penal Code and that of the High Court affirming the same is subject-matter of examination in this appeal.
Findings of Court:
Appellant was rightly convicted with the aid of Section 34 IPC for the offence of killing deceased as they all had come armed, assaulted him together and thereafter left the place of occurrence together.
Result : Appeal dismissed.

JUDGMENT :

Pankaj Mithal, J.

1. Heard learned counsel for the parties.

2. Leave was granted while reserving the judgment.

3. The correctness of the judgment and order of the trial court convicting and sentencing the appellant for life imprisonment for an offence under Section 302 read with 34 of the Indian Penal Code (“IPC” for short) and that of the High Court affirming the same is the subject-matter of examination in this appeal.

4. The notice on this appeal was issued to the respondent-State of U.P. on 17.04.2023 limited to the applicability of Section 34 of the IPC. Therefore, the only issue for consideration in this appeal is whether the appellant shared common intention along with other co-accused to kill the deceased Ram Kishore. Since the notice was confined to the applicability of Section 34 of the IPC, with the consent of the parties, we consider it appropriate to deal with the above aspect only in this appeal.

5. The facts as unfolded reveal that the First Information Report was lodged at the instance of one Balram at about 7:15 a.m. on 18.10.1982 at Police Station Ramnagar, District Varanasi alleging that when at 5:30 am on the same day he along with his brother Ram Kishore were going to attend the nature’s call and had reached Babulal’s Dhaba, he saw Virender armed with iron rod (Rambha), Rajaram, Jogendra and Ram Naresh holding lathis in their hands. All these four persons came out of the Dhaba and shouted to kill Ram Kishore. Upon seeing the said four persons, he and his brother Ram Kishore shouted for help but before any help could arrive, the above four persons gheraoed Ram Kishore and gave brutal blows to him from lathis and iron rod. As a consequence, Ram Kishore fell down and succumbed to the injuries inflicted upon him.

6. On the basis of the aforesaid FIR, a case under Section 302/34 IPC was registered and was investigated upon. In the light of the documentary and ocular evidence including the eyewitnesses, the trial court held all the four accused guilty and convicted them for the commission of offence under Section 302 read with Section 34 IPC which was affirmed by the High Court.

7. Learned counsel for the appellant had submitted that the trial court has not considered any evidence to record finding with regard to “common intention” on part of the appellant and, therefore, Section 34 IPC cannot be applied so as to convict him. He further submitted that even the High Court has not discussed the evidence on the above aspect.

8. A reading of Section 34 of the IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34 IPC would come into play. To attract Section 34 IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.

9. In the case at hand, it is clearly stated in the FIR and also categorically stated by Balram (PW-1) that Rajaram, Ram Naresh and Jogendra had lathis in their hands and Virender had iron rod in his hands. Rajaram by shouting instigated all of them to kill Ram Kishore. The accused persons having cornered/gheraoed Ram Kishore assaulted him with lathis and iron rod. Rajaram, Jogendra and Ram Naresh armed with lathis and Virender armed with iron rod assaulted Ram Kishore to death. The witness (PW-1) could not be shaken in cross examination and consistently stated that all the accused persons surrounded his brother Ram Kishore and assaulted him together. Thereafter, all of them left together.

10. The trial court recorded a finding that all accused persons belonged to village Chaurahat and that the evidence on record establishes beyond doubt that the accused persons attacked the deceased Ram Kishore with the intention to kill him. The intentio

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