1997(4) Crimes 43 (SC)
SUPREME COURT OF INDIA
(From Patna High Court)
G.N. Ray and G.B. Pattanaik, JJ.
Dukhmochan Pandey & Ors. -Appellants
Versus
State of Bihar -Respondent
Criminal Appeal No. 197 of 1982
With
Criminal Appeal No. 198 of 1982
Decided on 25-9-1997
Counsel for the Parties:
For the Appearing Parties: U.R. Lalit, K.B.N.Sinha, Sr. Advocate, Ms. Madhu A. Sharan, A. Sharan. (D.N. Goburdhan) Advocate for State of Bihar, Hatan Kumar Chaudhary, Anil Kumar Jha, Advocates.

IMPORTANT POINT
In a case of murder where it is established by satisfactory evidence that all the accused were acting in concert and were associated with each other in causing assault and multiple injuries were found on the deceased it leaves no room for doubt that all the accused had shared a common intention to cause death.

Headnote:(i) Constitution of India-Art 136-Appeal by special leave Scope-Ordinarily this Court does not re-appreciate evidence-Conclusions of High Court on a question of fact or on appreciation of evidence are considered to be final-However, there is no bar for this Court to re-appreciate evidence if interest of justice so demands. (Para 6)

       (ii) Constitution of India-Article 136-lndian Penal Code, 1860 Sections 302/34 and 147, 148Conviction of two groups of accused persons for causing murder of two deceased under Section 302/34Convictions under Sections 148, 147 upheld-Appeal-47 people out of a mob of 200 persons had been charged-PW 18 is star witness-5 are injured witnesses-Injured witnesses corroborate evidence of PW 18 with regard to manner of assault, place of assault, weapons used by different accused persons, persons who assaulted two deceased persons, arrival of 10 at the field etc.

       Reliable evidence. (Para 6)

       (iii) Indian Penal Code, 1860-Sections 302/34 and 147-Convictions under-Eye witnesses-Prosecution case that accused came to prevent labourers from continuing transplantation operation-At spur of moment on account of certain lalkara being given by some of the accused persons, persons armed with weapons started assaulting the deceased-Convictions of 12 accused under Section 302/34 affirmed Convictions of ap~lIal1ts UP, JD, SP, UNP, JM and KM under Section 302/34 set aside-They are convicted under Section 325/34 IPC.

       Held: From the nature of the injuries found on the dead body of deceased Ahmed Shah and the nature of the weapons of assault used by accused holding lathis namely accused Uttam Pandey, Janak Das, Saniam Pandey, Upendra Narain Pandey, Jogeshwar MandaI and Kapileshwar Mandai, and the part of the body of Ahmed Shah on which they assaulted, it may not be possible to hold that they shared common intention of causing murder of Ahmed Shah. For an inference of common intention being drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for-doubt, that a meeting of minds and a fusion of ideas had taken place amongst different accused and in prosecution of it the overt acts of the accused persons flowed out. As has been stated earlier the prosecution case itself is, they came to prevent the labourers from continuing the transplantation operation but at the spur of the moment on account of certain lalkara being given by some of the accused persons, persons armed with weapons started assaulting the deceased. But from mere assault even not on vital parts of the body which ultimately resulted in causing some minor injuries, it may not be sufficient to establish beyond reasonable doubt that they also shared a common intention of causing murder of deceased Ahmed Singh. In this view of the matter, the conviction of appellants Uttam Pandey, Janak Das, Sanjam Pandey, Upendra Narain Pandey, Jogeshwar MandaI and Kapileshwar MandaI under Section 302/34 IPC for causing murder of deceased Ahmed Shah cannot be sustained and the same is set aside, instead they are convicted under Section 325/34 IPC sentenced to undergo rigorous imprisonment for five years. It is no doubt true that there is no gun shot injury on him it is Dukhmochan Pandey and Sarabnarain Mishra who on being ordered by Uttam Pandey fired the guns in their hands first, whereafter all others assaulted with the respective weapons in their hands. That being the position, Dukhmochan Pandey and Sarbnarain Mishra also could be held liable under Section 302/34 and have been rightly convicted by the courts below. (Para 8)

       Of these accused persons Dukhmochan Pandey was holding a Gun, Shiv Narain Thakur was holding a Garasa, Shivshekhar Pandey was holding a Garasa, Sarabnarain Mishra was holding a Gun, Sukhram Mishra was holding a Bhala, Saukhilal Yadav was holding a Bhala, Naval Kishore Pandey was holding a Garasa, Jogendra Narain Pandey was holding a Garasa, Mahendra Narain Pandey was holding a Garasa, Hamchandra Pandey was holding a Bhala, Jainandan Mishra was holding a Bhala and Amiri Lal Yadav was holding a Bhala. (Para 10)

       In view of the nature of injuries found on the dead body of deceased Razaullah and the weapons of assault in toe hands of the accused, it would be difficult to hold that all of them had not shared the common intention of killing the Razaullah which developed at the spur of the moment on being ordered by Uttam Pandey. In fact with deadly weapons in their hands they mercilessly assaulted deceased Razaullah and as such their conviction under Section 302/34 is fully justified. (Para 11)

       So far as Criminal Appeal No. 198 of 1982 is concerned the appellants have been convicted under Section 147 IPC and in view of number of eye-witnesses to the occurrence many of whom are injured witnesses and those witnesses having been believed by the learned Sessions Judge as well as by the High Court and while discussing their evidence in the other appeal we have also believed their testimony, we see no infirmity in conviction and sentence passed against the appellants in this appeal, and therefore, the said appeal is dismissed. (Para 12)

       (iv) CRIMINAL TRIAL-FIR-Admissibility-Certain embellishments Claim that FIR was written at place of occurrence-Doubtful-Entire prosecution evidence cannot be doubted.

       Held: No doubt there has been certain embellishments and the High Court, therefore, was justified in coming to a conclusion that the FIR was not written at the place of occurrence as stated by PW18. But on that basis the entire prosecution case cannot be thrown out particularly when out of 12 witnesses examined on behalf of the prosecution 5 are the injured witnesses PWs 8, 9, 11, 14, and 15. These injured witnesses corroborate the evidence of PW-18 with regard to the manner of assault, the place of assault, weapons used by different accused persons, the persons who assaulted the two deceased persons, the arrival of the Magistrate soon after the occurrence, the arrival of the investigating officer at the field, handing over of FIR by Kapileshwar to the Magistrate. (Para 6)

       (v) CRIMINAL TRIAL-Evidence-Delayed examination of witnesses by investigating agency-Admissibility of evidence.

       (vi) Indian Penal Code, 1860 Section 34-Common intention Existence of common intention between participants in a crime-Essential element for attracting Section 34-Such intention could be formed previously or on the spot during the progress of the crimeDistinction between common intention and similar intention. Murder case-Inference of common intention.

       Held: The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually, it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in course of the commission of offence. But such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mine which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. Unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person. The mere fact that the accused persons were armed with some weapons itself would not be sufficient to attribute common intention of all of them to commit murder particularly when in the case in hand the prosecution case itself is that the accused persons came to the field with the sole object of desisting the labourers from continuing with the transplantation operation. (Para 6)

       Further held: For an inference of common intention being drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place amongst different accused and in prosecution of it the overt acts of the accused persons flowed out. (Para 8)

       Consequently held: In a case of murder where it is established by satisfactory evidence that all the accused were acting in concert and were associated with each other in causing assault and multiple injuries were found on the deceased it leaves no room for doubt that all the accused had shared a common intention to cause death. (Para 11)

       Result: Ordered accordingly. Appeals disposed of. Criminal Appeal No. 198 of 1982 dismissed.