2001 Supreme(SC) 1426

2001(7) Supreme 751
SUPREME COURT OF INDIA
(From Patna High Court)
R.C. Lahoti & Ashok Bhan, JJ.
Ramji Singh & Anr. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1029 of 2000
Decided on 12-10-2001
Counsel for the Parties :
For the Appellants : P.S. Mishra, Sr. Advocate, Chandra Shekhar, Vishnu Sharma, Upendra Mishra, T. Harshvardhan and R.P. Singh, Advocates.
For the Respondent : Irshad Ahmed, Advocate for B.B. Singh, Advocate.

IMPORTANT POINT
In the absence of charge under Section 34 IPC conviction can be maintained under Section 34 IPC where no prejudice is shown to have caused to any of the accused persons because of non-framing of charge under Section 34.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 323 and 324-Appellants convicted murder of their relative on unresolved property dispute by trial Court-High Court upheld the conviction adopting findings of trial Court-Whether correct? (No)-Should case be remanded? (No, being an old case and material is on record)-Supreme Court reappreciated the evidence and found it reliable to uphold conviction.

       Held : Counsel for the appellants argued that the High Court in an appeal directed against the order of conviction is required to arrive at independent conclusion on reappraisal of the entire evidence which it failed to do. We do agree with the contention raised by the counsel for the appellants that the High Court, being the first Appellate Court, should have recorded its independent findings on reappraisal of the evidence. On perusal of the order we find that the High Court after referring to the evidence piece by piece agreed with the findings recorded by the trial Court for conviction and summed up the conclusion in the manner narrated in paragraphs 22 and 23 reproduced above. The order of the High Court leaves much to be desired, but instead of remitting the case back for recording of fresh finding we have analysed the evidence on the record ourselves with the assistance of the learned counsel for the parties as this case pertains to the year 1983. The remittance of the case would cause unnecessary harassment and cost to the parties. Though this Court generally does not reappraise evidence which has been considered by the two courts below but in the peculiar facts and circumstances of this case this recourse is being adopted. (Para 10)

       After going through entire evidence of witnesses and medical evidence :

       Held : On going through the evidence of PWs 4, 9 and 11 carefully, we are of the firm view that the occurrence took place in the manner suggested by the prosecution. All the three witnesses were natural witnesses. They were living in nearby houses. There was no reason for them to implicate the accused falsely by leaving out the real culprits. The counsel for the appellants failed to point out any cogent or acceptable reason to disbelieve their testimony. (Para 12)

       (ii) Indian Penal Code, 1860-Sections 302 and 302/34-Appellants convicted under Section 302 by trial Court-High Court changed it into 302/34-Whether maintainable in law? (Yes)-Case law discussed-Common intention how to be inferred-Whether any prejudice caused? (No)-Conviction and sentence upheld-Appeal dismissed (IPC 1860-Sections 34, 114, 149).

       After referring to case law :

       Held : Accordingly it is held that even in the absence of the charge under Section 34 the conviction could be maintained by the courts below. The counsel for the appellants could not show that any prejudice was caused to either of the accused persons because of the non-framing of charge under Section 34. It is true that the two injuries which proved to be fatal were not specifically attributed to either of the accused. The common intention can be formed at the spot. At times it is difficult to get direct evidence of pre-concert of minds. The common intention can be gathered from the circumstances and the manner in which assault is carried out. The manner in which assault was carried out leaves no manner of doubt in our mind that the appellants had come with the intention to kill the deceased. Their intention was not to cause injuries alone. All had come to the house of the accused. Finding him near the house of Bachcha Pandey all three of them started causing injuries. When PW 4 intervened and requested them not to cause the injuries to deceased they continued to cause the injuries. Even when PW 4 threw herself on the deceased to protect her husband the accused persons did not stop from causing further injuries to the deceased. Instead they caused injuries to Rajpati Devi, PW 4, as well. When deceased asked for water rather then giving the water they shouted they would kill him. All these show their pre-determined mind to kill the deceased. Had their intention been to cause injuries they would have stopped when PW 4 intervened to protect her husband or when deceased asked for water. The continuance of causing of injuries in spite of the intervention of PW 4 and refusal to give water when the deceased asked for it, as stated above, shows the pre-determined mind of the accused that they had come with the intention to kill. It is true that there is no evidence of prior meeting of minds. But the sequence of events which unfolded during the course of occurrence clearly indicate the pre-determined minds of the accused persons to kill the deceased. For the reasons stated above, we do not find any merit in this appeal, accordingly, the appeal is dismissed. (Paras 14 to 17)