Point of Law: Criminal Law - Common Intention - Liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of persons who join in committing crime. Direct proof of common intention is seldom available and therefore, such intention can only be inferred from circumstances appearing from proved facts of case and proved circumstances.

JUDGMENT :

Rajeev Singh, J.

1. Heard Shri Arun Sinha, learned counsel for the appellants and Ms. Nand Prabha Shukla, learned A.G.A. for the State and perused the lower court record.

2. The present appeal has been filed by the appellants namely Jagdamba, Amerika Prasad, Chinta @ Chinta Ram @ Chinta Prasad @ Sheo Shankar and Bachhraj, under Section 374 (2) Cr.P.C., against the judgment and order dated 16/17.01.1985 passed by learned Additional Sessions Judge-I, Gonda in Sessions Trial No.174 of 1983 (State Vs. Bhagwati and Others) arising out of Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C., Police Station Intiathoke, District Gonda, whereby acquitting the co-accused persons namely Bhagwati, Kalp Nath, Bharose @ Ram Bharose, Suggu @ Sukhdeo, Ram Kewal, Vishram and Girwar, and convicting the appellants namely Jagdamba, Amerika Prasad, Chinta and Bachhraj, under Sections 302/34 and 324/34 I.P.C. and sentenced them for life imprisonment with a further sentence of two years of Rigorous Imprisonment with a fine of Rs.500/-, in default of payment of fine, additional six months of rigorous imprisonment.

3. During pendency of the present appeal, the appellant No.1 namely Jagdamba had died, as a result, the appeal in relation to him was abated on 02.04.2019.

4. The prosecution case is that on 19.12.1982 at about 01:30 a.m., when Ram Dularey (complainant) was sleeping along with his wife Smt. Patiraji, son Chandrika Prasad, daughters Kamla Devi & Madhuri Devi, relative Ram Gulam and son-in-law Kamla Prasad in the thatcher (Chhappar) lying west to his house, while his elder son Shanti Prasad was sleeping in the Charni (place used for keeping fodder) lying in front of the house and his other son namely Nanhey Prasad was sleeping in another Marha lying to the east of the house, the accused persons namely Jagdamba armed with Pharsa, Girwar & Amerika armed with Spears, Chinta & Bachha Raj armed with Gandasa and rest of the accused persons armed with lathi, arrived at the door of the complainant and on the barking of dogs, the complainant woke up and noticed the presence of accused persons in the light of torch and the lantern that was hanging onto the branch of Jack Fruit (Kathal) tree in front of the house; by that time, the accused persons entered in the Charni where Shanti Prasad was sleeping, and the accused persons namely Chinta Ram, Jagdamba and Bhulan @ Bachha Raj started inflicting blows with their respective weapons on Shanti Prasad while rest of the accused persons were holding him. The complainant raised alarm and he along with his, wife Smt. Patiraji, son Chandrika Prasad and relations rushed to save Shanti Prasad. In the meantime, Nanhey Prasad also woke up in his Marha and was sitting on cot. After committing the murder of Shanti Prasad, the accused persons had rushed to Marha of Nanhey Prasad and after entering therein, the accused persons namely Chinta Ram, Jagdamba and Bachhraj started inflicting blows with their respective weapons on Nanhey Prasad while other co-accused persons were holding him. As the complainant and his wife tried to save their son Nanhey Prasad, the complainant was assaulted by accused Jagdamba and Amerika, and his wife Patiraji was assaulted by Amerika. On the alarm raised by the complainant and his relations, the inhabitants of nearby village reached on the spot, and the accused persons ran away toward east. The deceased persons namely Shanti Prasad and Nanhey Prasad died on the spot and in the F.I.R., motive behind the incident was attributed to long standing enmity between the complainant and the accused persons.

5. The aforesaid written complaint was furnished at Police Station Intiyathoke, District Gonda by Ram Dularey (complainant) on 19.12.1982 at 08:45 a.m. and a case was registered against all the accused persons as Case Crime No.135 of 1982, under Sections 147, 148, 149, 324, 323, 302 I.P.C., the chick F.I.R. was prepared and the entry of lodging the F.I.R. was made in