@ Jhallar Vs. State of U.P  Insc 349 (31 July 2001)
Shah & Doraiswamy Raju Raju, J.
appeal filed against the judgment dated 7.7.1998 of a Division Bench of the Allahabad
High Court in Criminal Appeal No.880 of 1980 by the second accused (Accused
Nos.1 and 3 having died during the pendency of the appeal in the High Court)
relates to an occurrence on 9.1.1979 at about 4 p.m. in Mashika village
resulting in the death of one Ram Chandra. The learned Additional Sessions
Judge found all the three accused guilty of the charge against them punishable
under Section 302 read with Section 34, IPC, and sentenced them to undergo
imprisonment for life. All the three accused pursued the matter before the High
Court on appeal and, as noticed earlier, the appellants 1 and 3 before the High
Court died during the pendency of the appeal and the appeal was heard and
disposed of confirming the judgment of the learned Sessions Judge.
case of the prosecution is that on 9.1.1979 at about 4 p.m.
the deceased Ram Chandra along with Ram Lalak (PW.1), Krishna Murari (PW.2) and
Rajmani were sitting on a cot in front of the shop of one Chhotey Lal Bania
situate in Village Mashika, all the three accused Jata Shanker, Gopi Nath (the
appellant herein) and Shyam Shanker came there and Jata Shanker and Gopi Nath
were armed with Farsas while Shyam Shanker was armed with Lathi. All the
accused were said to have exhorted to kill the deceased and on hearing the
exhortation of the accused, Ram Chandra tried to run away getting up from the
cot on which he was sitting, but Jata Shanker and Gopi Nath attacked the
deceased with the Farsas they held. On receiving the injuries, the deceased
fell down and even thereafter Jata Shanker again assaulted the deceased with
the Farsas on the right parietal region. Shyam Shanker, the other accused, was
said to have remained standing on guard by the side of the two assailants
shouting that if anybody dare to come, he too shall be killed. PW.1, PW.2 and Raj
Narayan were said to have raised an alarm and attracted other persons and at
that stage all the three accused persons ran away. Krishna Murari (PW.2), Ram Sanjivan,
Mishri Lal and Raj Narayan were said to have taken the injured to Swaroop Rani
Nehru Hospital, Allahabad, where he was stated to have been examined by Dr.
R.P. Singh (PW.4) at 6.30 p.m. when the following injuries were found on the
person of the deceased :-
Incised wound on the right side of face 6 x 1 bone deep extending from lobule
of right ear to mid of chin, fresh bleeding present.
Incised wound on the right parietal region 2 x ½ bone deep 5 above the right
ear fresh bleeding present.
Incised wound on the right side of neck 1 x ½ muscle deep, fresh bleeding
present 5 x ½ below the right ear.
victim was unconscious and though was kept under observation, died at about 6.55 p.m. in the Hospital.
written report (Ex. Ka.1) relating to the incident was lodged by PW.1 at Police
Station, Naini, District Allahabad, on 9.1.1979 at about 5.30 p.m., on the
basis of which Crime Case No.15 under Section 307, IPC, was registered and
the Sub-Inspector then on duty, took up the investigation and recorded the
statement of Ram Lalak at the Police Station itself, then rushed to the scene
of occurrence and on inspection of the place and on the information given by
the complainant, recovered blood stained and simple earth as also blood stained
bag (Ex. 7 to 9) from the scene of occurrence. The site plan (Ex.
was said to have been prepared and statements of other witnesses were said to
have been recorded till 11 p.m. On the next day, on receipt of the information
about the death of Ram Chandra, I.O. went to the Hospital and after inspecting
the dead body prepared an Inquest Report and thereafter sent the dead body with
a Constable for post-mortem examination. After completing the investigation,
the charge-sheet against all the three accused was filed under Section 302 read
with Section 34, IPC, for committing the murder of the deceased Ram Chandra on
9.1.1979. The further case of the prosecution, the relevant materials relating
to which have been brought on record also is that earlier on 1.11.1978 one Triveni
Prasad Tiwari of the same village was murdered in which M/s Shishmani, Ram Sanjiwan
and Jeevan Lal were arrayed as accused persons for the said murder, out of
which Shishmani is said to be a nephew of Ram Chandra, the deceased in this
case, and Ram Sanjiwan and Jeevan Lal were cousin brothers of the deceased.
Therefore, Ram Chandra was doing Pairavi in the earlier murder case on behalf
of the three accused therein and also was said to have filed an affidavit in
connection with the bail application for the accused in that case.
Triveni Prasad, the person murdered in the other case, was said to be the
younger brother of Shyam Shanker, the third accused in this case. Further, one Smt.
Rajpati Devi, the aunt of Shishmani, was said to have lodged an FIR on
11.12.1978 against the first accused Jata Shanker in this case and the present
appellant, alleging that Jata Shanker, Gopi Nath and Kesheo, son of Jata Shanker,
had set fire to her house and in that complaint, the deceased Ram Chandra was
cited as a prosecution witness and, therefore, the accused in this case bore
enmity with the deceased.
prosecution supported its case by examining PWs.1 to 9 of which PW.1, Ram Lalak,
and PW.2, Krishna Murari, were ocular witnesses for the occurrence. PW.3, Dr.
R.V. Singh, Medical Officer of Motilal Nehru Hospital, Allahabad, who conducted the autopsy on the
dead body of the deceased, was also examined. Documentary evidence and material
objects were also marked. No evidence was let in on the side of the defense,
but the accused denied the charges necessitating the trial. On a consideration
of the materials placed on record, the learned Trial Judge arrived at the
finding that the evidence let in by the prosecution proved beyond reasonable
doubt that all the three accused came with the common intention to kill Ram
Chandra and, therefore, each of them cannot be held liable for their individual
acts and that the prosecution has succeeded in proving that the accused are
guilty of the murder of Ram Chandra. Consequently, they were convicted under
Section 302, IPC, read with Section 34, IPC, and sentenced to undergo
imprisonment for life.
all the three accused pursed the matter on appeal before the High Court and as
pointed out earlier, the High Court, while rejecting the claim of the accused
that they were falsely implicated in the case, though innocent and that in any
event the appellant can be convicted, if at all, only under Section 324, IPC,
because he merely caused a simple injury, confirmed the findings of the
Sessions Court and their conviction and sentence imposed.
the learned counsel for the appellant and the respondent-State. The learned
counsel for the appellant, while reiterating the stand taken before the courts
below, contended that except the interested witnesses like those examined the
prosecution failed to examine not only any independent witnesses from the
public in the area since the occurrence was during day time but also committed
a serious lapse in not examining the owner of the shop Chhotey Lal Bania in
front of whose shop the occurrence was said to have taken place and this
seriously undermines the credibility of the prosecution case. Grievance has
also been made about the non- marking of the place from where the blood soiled
earth was taken, in the site plan prepared pertaining to the place of occurrence,
to claim that the said lapse cast a serious doubt about the very place of
occurrence and the case of the prosecution thereby stood rendered highly
improbable. Finally, it was also contended that, if at all, the appellant could
only be held liable for causing injuries punishable under Section 324, IPC, and
that the conviction under Section 302/34, IPC, cannot at all be sustained. The
learned counsel for the State adopted the reasoning contained in the judgments
of the courts below and contended that the findings recorded are well-merited
and the concurrent findings rendered on proper appreciation of the evidence do
not call for any interference. Both the learned counsel invited at length our
attention to the relevant portions of the judgments to substantiate their
have carefully considered the submissions of the learned counsel on either
side. As for the challenge made to the conviction under Section 302 read with
Section 34 IPC, it is necessary to advert to the salient principles to be kept
into consideration and often reiterated by this Court, in the matter of
invoking the aid of Section 34 IPC, before dealing with the factual aspect of
the claim made on behalf of the appellant. Section 34 IPC has been held to lay
down the rule of joint responsibility for criminal acts performed by plurality
of persons who joined together in doing the criminal act, provided that such
commission is in furtherance of the common intention of all of them. Even the
doing of separate, similar or diverse acts by several persons, so long as they
are done in furtherance of a common intention, render each of such persons
liable for the result of them all, as if he had done them himself, for the
whole of the criminal action be it that it was not overt or was only covert act
or merely an omission constituting an illegal omission. The Section, therefore,
has been held to be attracted even where the acts committed by the different
confederates are different when it is established in one way or the other that
all of them participated and engaged themselves in furtherance of the common
intention which might be of a pre- concerted or pre-arranged plan or one
manifested or developed at the spur of the moment in the course of the
commission of the offence. The common intention or the intention of the
individual concerned in furtherance of the common intention could be proved
either from direct evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. The ultimate decision, at
any rate, would invariably depend upon the inferences deducible from the
circumstances of each case.
as the facts of the case on hand are concerned, in our view the Courts below
could not be in any manner faulted with, for arriving at the conclusion to
indict all the accused applying the principles engrafted in Section 34, IPC, to
punish them under Section 302, IPC. That Ram Prasad was actively assisting the
accused in the case involving the murder of Triveni Prasad and that in another
police complaint against the accused, Ram Prasad was cited as a witness for the
occurrence, though a report has been filed on it, has annoyed the accused in
this case on account of their relationship with Triveni Prasad as well as his
preparedness to be a witness in the case of alleged house burning against the
accused, sufficiently establish the motive and common intention of the accused
to do away with Ram Prasad. The appellant and Jata Shanker were also armed with
Farsa and Shyam Shanker was armed with a lethal weapon like lathi.
evidence on record established their conduct in shouting in unison to do away
with Ram Prasad and the appellant along with the other giving a blow
simultaneously with Farsa, in spite of the victim trying to run away from the
place by surrounding him and the further evidence about the exhortation said to
have been made by Shyam Shankar exhibiting lathi that anybody who tries to come
to the rescue of the victim will also be done away with, are more than
sufficient in law to substantiate the concerted move and the common intention
shared by all the accused to do away with Ram Prasad. One of the blows was not
only fatal and considered on the basis of medical evidence to be sufficient in
the normal course to cause death, but the simultaneous attack with Farsa by the
appellant and Jata Shankar have been held sufficient to constitute the required
overt acts in furtherance of the common intention shared by all of them to put
an end to the victim. Consequently, the application of the principles enshrined
in Section 34, IPC, to the case on hand was fully justified and no exception
could be legitimately taken to the same, on the peculiar facts of this case, to
which due reference extensively had been made by both the courts below. The
conviction under Section 302/34, IPC, is, therefore, well-merited, calling for
no interference in this appeal.
grievance about the non-examination of any independent witness from public or
the shop owner in front of whose shop the occurrence has taken place, has been
specifically dealt with and, in our view, the reasons given therefor in the
judgment under challenge cannot be said to be erroneous. The fact that the
accused formed a definite and desperate warring group of criminals and for
quite sometime there had been open hostilities exhibited involving criminal
actions would normally deter anyone from the public extending their service or
co-operation to be a witness against them. Apart from this aspect of the
matter, when the Investigation Officer (PW.6) was in the box nothing appears to
have been said or even suggested to him about the non-examination of the owner
of the shop. As for the lapse in not specifically marking in the site plan of
occurrence about the actual place of recovery of soiled earth, the courts below
did not consider it to be such a grave infirmity in the teeth of specific
mention about the same in the case diary and the specific evidence of PW-5
considered otherwise sufficient to prove this fact. We see nothing wrong or
illegal in the said reasoning of the courts below. The evidence of PWs. 1 &
2, inspired confidence with the courts below, despite the fact that they are
persons belonging to the group of Ram Prasad and nothing concrete or
substantial has been shown to us from the materials on record to castigate
their version or condemn their evidence and take a different view from the one
concurrently held by both the courts below.
all the reasons stated above, we find absolutely no merits in the above appeal.
The same fails and shall stand dismissed.
B. Shah ] [ Doraiswamy Raju ] July 31, 2001.