Point of Law: Common intention – Murder - Conviction upheld - Essence of joint liability in doing a criminal act is to be found in existence of a common intention connecting accused leading to doing of a criminal act in furtherance of such intention - If act is result of a common intention then every person who did criminal act with that common intention would be responsible for offence committed irrespective of share which he had in its perpetration.

Headnote:
Indian Penal Code, 1860 - Sections 302/34 – Criminal Procedure code, 1973 - Section 313 – Offence of Murder - Fire arm wound – Appeal against conviction - Informant in F.I.R. is that opposite to his house a house of accused, who was a State Minister in regime of B.S.P. Government, was being constructed - There was a dispute going on with respect to a public pathway in between their houses. With respect to dispute of public pathway, a compromise meeting was held between his father and dispute was settled but accused came along with his 4-5 associates at the place where his house was being constructed and was standing. Few minutes thereafter a white Gypsy with a banner of Samajwadi Party came there from which 3-4 persons came out. They were armed with fire arm. Said persons entered into house of informant along with accused. Deceased was in his bed room in the house. Accused made an exhortation to the other co-accused uttering that "Maro Sale ko Bachne na Paye". On his exhortation, associates of accused opened fire on deceased, who sustained fire arm injuries and fell down. Incident was witnessed by the informant his wife who were present in the house at the time of incident. The deceased was taken to Medical College in injured condition where doctor on duty declared him dead.
Finding of the Court: Court opinion that facts disclosed do not warrant an inference of common intention in Pandurang s case. Therefore even if that had been charged, no conviction could have followed on that basis. Pandurang is accordingly only liable for what he actually did - Court after scrutinizing the evidence lead by the prosecution and the defence of accused, who had only pleaded for his false implication in present case and has not denied his presence at the place of occurrence, and his previous conduct goes to show that appellant has played an active role in the instant case by instigating co-accused persons for killing the deceased and uttered "Maro sale ko aaj bachne na paye" on which co-accused persons have committed the murder of the deceased with their respective rifles in broad day light which had been witnessed by P.W. 1 and 2 who are son and daughter-in-law of the deceased and the ocular testimony is corroborated by the medical evidence and considering law laid down by Apex Court in cases referred above regarding exhortation, we are of the opinion that the trial Court has rightly convicted and sentenced the appellant for the offence under section 302/34 I.P.C., hence does not require any interference by this Court. Impugned judgment and order passed by trial Court is hereby upheld.
Result: Appeal dismissed

JUDGMENT :

Per Ramesh Sinha, J.

1. This criminal Appeal has been preferred against the judgment and order dated 18.11.2000 passed by VIII Additional Sessions Judge, Lucknow in S.T. No. 579 of 1996 convicting and sentencing the appellant under sections 302/34 I.P.C. for life imprisonment with a fine of Rs. 20,000/-and in default of payment of fine further to go simple imprisonment for 3 years.

2. Out of six accused persons, namely, Angad Yadav, Surajpal Yadav, Chandrapal Yadav, Ramesh Kaliya, Ramji Prasad, Shiv Bahwan, accused Surajpal Yadav and Chandrapal were killed in police encounter whereas accused Ramesh Kaliya died during the pendency of the appeal and his appeal, i.e., Crl. Appeal No. 1047 of 2000 has been abated by Coordinate Bench of this Court vide order dated 21.11.2017. So far as accused Ramji Prasad and Shiv Bhawan have been acquitted by the trial Court, hence the Court proceed to adjudicate the appeal on behalf of the surviving appellant Angad Yadav only.

3. The prosecution story as has been set out by the informant Vijay Kumar Yadav in the F.I.R. is that opposite to his house a house of Angad Yadav, who was a State Minister in the regime of B.S.P. Government, was being constructed. There was a dispute going on with respect to a public pathway in between their houses. On 28.10.1995, with respect to the dispute of public pathway, a compromise meeting was held between his father Laxmi Shanker Yadav and Angad Yadav and the dispute was settled but on 29.10.1995, at about 9:30 p.m., Angad Yadav came along with his 4-5 associates at the place where his house was being constructed and was standing. Few minutes thereafter a white Gypsy with a banner of Samajwadi Party came there from which 3-4 persons including Ramesh Kaliya and Surajpal Yadav came out. They were armed with fire arm. The said persons entered into the house of the informant along with accused Angad Yadav. The deceased Laxmi Shanker Yadav was in his bed room in the house. Accused Angad Yadav made an exhortation to the other co-accused uttering that "Maro Sale ko Bachne na Paye". On his exhortation, the associates of accused Angad Yadav opened fire on Laxmi Shanker Yadav, who sustained fire arm injuries and fell down. The incident was witnessed by the informant Vijay Kumar Yadav, his wife Smt. Kumkum Yadav, Rajdeep Yadav and Chaukidar Ram Charan Yadav, who were present in the house at the time of incident. The deceased Laxmi Shanker Yadav was taken to Medical College in injured condition where the doctor on duty declared him dead.

4. The informant Vijay Kumar Yadav prepared a written report (Ex. Ka-1) and submitted the same at police station Hazratganj, Lucknow on the basis of which chik report was prepared and the case was registered as case crime no. 835 of 1995 under sections 147, 148, 149, 302 I.P.C. at 10:45 a.m. which was endorsed in G.D. rapat no. 21 dated 29.10.1995 at 10:45 a.m. The distance of police station from the place of occurrence was about 2 kms. The inquest report (Ex. Ka-10) was prepared and further necessary documents such as police form no. 13 (Ex. Ka-11), challan nash (Ex. Ka-12) etc. were also prepared. Thereafter, the dead body of the deceased was sent to mortuary for post mortem. The post mortem of the deceased was conducted on 29.10.1995 at 12:30 p.m. by P.W. 4 Dr. R.K. Mishra, who opined that the cause of death of the deceased is due to shock and hemorrhage as a result of ante mortem injuries. The Investigating Officer took over the investigation of the case and after recording the statement of the witnesses prepared the site plan of the place of occurrence etc. and after investigation submitted charge-sheet against accused Angad Yadv, Surajpal Yadav, Chandrapal Yadav, Head Constable A.P. 14 Ramji Prasad, Constable A.P. 204 Shiv Bhawan-the security guards of appellant Angad Yadav and Ramesh Kaliya under sections 147, 148, 149, 302, 109, 120-B I.P.C. On submission of charge-sheet before the Magistrate, the case was committed to the Cour