1977 Supreme(SC) 307

SUPREME COURT OF INDIA
P.K. GOSWAMI, N.L. UNTWALIA AND D.A. DESAI, JJ.
Bhaba Nanda Sarma and others, Appellants
Versus
The State of Assam, Respondents.
Criminal Appeal No. 155 of 1972,
D/- 12-10-1977.
Advocates Appeared
Mr. S. K. Nandy, Advocate, for Appellants; Mr. S. N. Choudhury, Advocate, for Respondent.

Headnote:

SC Act, 1970 – Section 2 (a) – Indian Penal Code - Section 302/34/323/34 – Criminal Procedure Code - Section 342 – Offence of murder - Imprisonment for life – Appeal against conviction - Whether prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused - Whether conviction of all three appellants under S. 302 with the aid of S. 34 of Penal Code is justified in law - Eye witnesses of the occurrence were P. W. 2 P. W. 3 P. W. 4 and P. W. 6 - High Court in its judgment has catalogued main five reasons which led Sessions Judge to make an order of acquittal in favor of appellants - In Court opinion High Court was right in reversing the judgment of the trial Judge and interfering with order of acquittal - It did so well within limits of its power and the law as enunciated by this Court in several decisions - Four reasons given by learned Sessions Judge were of a flimsy nature - It did not justify entertaining of any doubt in regard to the prosecution story on the basis of those reasons - One of five reasons was that P. Ws. did not state about the injuries and they were not explained by prosecution - In court opinion High Court has rightly not attached much significance to alleged failure of the prosecution to explain the injuries - Injuries on his person were of a very minor nature three of them being ecchymosis and one swelling of the root of right index finger - Evidence of Doctor D. W. 1 was not sufficient to prove that the injury on right index finger was grievous in nature - Ecchymosis injuries however were all very simple - Did not claim in his statement under S. 342 of Cr. P. C. 1898 as to with what weapon injuries were caused on his person - He merely said gave blows on his back - He did not attribute the right index finger injury as having been caused by either of two - No defense witness was examined to give any counter version of the occurrence - Did not show his injuries to Investigating Officer as it apparent from his evidence when he arrested him soon after occurrence - No counter information was lodged with police nor was any counter case filed – Held, Injuries found on the person of the deceased by P. W. 5, who held the autopsy over the dead body were of a very severe nature - Fatal injuries in particular were the three head injuries - According to consistent version of prosecution - One was caused and other two were inflicted with the iron rod - Is also said to have caused the other injuries found on person - Result of three head injuries was fracture of the occipital bone into six pieces and fracture of the right parietal bone 2" in length - In opinion of Doctor the death was due to coma as a result of intra-cranial hemorrhage caused by the injuries sustained by the victim - Two authors of the injuries therefore undoubtedly had shared the common intention of causing such bodily injuries which were sufficient in ordinary course of nature to cause his death - In other words his death was as a result of criminal acts committed by the said two appellants in furtherance of their common intention - There cannot be any doubt about it - Their liability for the murder with aid of S. 34 of the Penal Code is fully established - Case however stands on a different footing and can justifiably be separated from that of the other two appellants - On these facts it is difficult to conclude that caught hold of the hands sharing the common intention of causing death - He did not utter a word which would justify such a conclusion - He must be aware that his two elder brothers were going to assault with their respective weapons in their hands - Did not use his for causing any injuries - First blow was given – Thereupon fell down - Intention therefore was to join in the commission of acts by the other two with intention of getting assaulted severely with knowledge that such an assault in all probability and likelihood might result in the death - His participation in crime therefore did not take him to the extent of the sharing of the common intention to cause his murder - As court have said above undoubtedly shared such an intention as is apparent from the manner of assault by them and severity and force with which blows were given on his head by both of them with respective weapons in their hands - Applying principle of law under S. 38 of the Penal Code therefore case can be separated from that of the other two - He can be held guilty only under S. 304 Part II as he had intentionally joined in commission of an act with knowledge that the assault was likely to result in his death - Facts of this case indicate shared common intention of his other two brothers for the commission of a lesser offence than murder - But while committing the act in furtherance of that common intention developed and shared common intention of causing his murder - Appeal is dismissed