@ Nandji Rastogi & Another Vs. State of Bihar  Insc 419 (1
Hegde & B.P. Singh. B.P. Singh, J.
appellants in these appeals, namely, Nandu Rastogi @ Nandji Rastogi and Bal Mukund
Rastogi are brothers. They alongwith one Jagdish Chamar and Mohan Singh were
put up for trial before the 2nd Additional Sessions Judge, Rohtas at Sasaram,
who found the appellants and Jagdish Chamar guilty of the offence under Section
302/34 IPC and under Section 27 of the Arms Act but acquitted Mohan Singh. They
were sentenced to undergo imprisonment for life under Section 302/34 IPC and to
undergo rigorous imprisonment for one year under Section 27 of the Arms Act.
They preferred three appeals before the High Court but by a common judgment and
order, the High Court dismissed the appeals and affirmed their conviction and
sentence. Three special leave petitions were preferred before this Court but
since Jagdish Chamar did not surrender to his sentence, his special leave
petition was dismissed by order dated 3rd December, 2001 while special leave to appeal was
granted to the appellants herein.
informant Shyam Mohan Rastogi, PW.4 is the uncle of the appellants being the
cousin of their father. The deceased Shankar Rastogi was the son of the
informant PW.4. It is alleged that in an occurrence which took place at about 7.00 p.m. on 12.11.1985 he was shot dead by appellant Nandu Rastogi.
It is the case of the prosecution that the three accused, alongwith two unknown
persons, came armed with country made pistols and perpetrated the crime.
According to the prosecution the background in which this occurrence took
place, and which also discloses the motive for the offence, is that the
informant PW.4 owned a house which he sold to one Braj Kishore Rastogi, who in
turn sold the said house to appellant Nandji Rastogi. Manjoor Ansari, PW.1 was
the tenant of a shop in that building, but Nandji Rastogi was pressurising him
to vacate the premises. Shankar, (deceased) son of the informant, took the side
of Manjoor Ansari and declared that he will not permit Nandji Rastogi to
forcibly evict him. He even threatened that he may challenge the sale of the
house by his father since his father had no legal authority to sell his share
in the house. It appears from the evidence on record that Manjoor Ansari is on
good terms with the informant and his family members and continued to occupy
the shop premises even on the date of occurrence.
case of the prosecution as disclosed in the First Information Report lodged by
PW.4 at 8.00 p.m. on 12th November, 1985, soon after the occurrence, is that at
about 5.00 p.m. the informant was sitting in his shop, namely, Shankar Stores, alongwith
his tenant Ayodhya Tiwari, PW.5 when Nandji Rastogi came there and warned the
informant to caution his son that he should not interfere in his matters. He
threatened that if he did not do so his son may be killed. So saying, he went
away threatening the informant with dire consequences.
about 6.45 p.m. electricity supply was cut off when
he was sitting in his shop alongwith one Shambhu Lal, his son Mukund, Manjoor Ansari,
PW.1 and Shankar Rastogi (deceased) his son. Since it was the diwali day,
candles and earthen lamps were lit in his shop and elsewhere. 15 minutes later
appellant Nandji alongwith his brother appellant Bal Mukund Rastogi, accused Jagdish
Chamar and two other unknown persons entered his shop armed with country made
pistols. Nandji and Jagdish caught hold of his son and took him inside to the
residential apartment which is just behind the shop, at gun point. When the
informant and others wanted to intervene, they were prevented by appellant Bal Mukund
Rastogi and his companion who stood guard with country made pistols in their
hands. They threatened them to keep quiet. After Shankar Rastogi was taken
inside the house by Nandji Rastogi, Jagdish Chamar and one other unknown
person, he heard the report of gun fire followed by crying of women inside the
house. An alarm was raised and the accused fled away threatening them. When he
went inside he found his son bleeding and unconscious. People who had gathered
there, took the deceased to Kudra Hospital where he was declared dead.
investigation four persons were put up for trial including the appellants, Jagdish
Chamar and one Mohan Singh, who was acquitted by the trial court. The defence
of the appellants was that no such incident as alleged took place and that they
had been falsely implicated on account of some dispute over a common wall.
Suggestions were put to some of the witnesses that a dacoity took place in the
house of the deceased and in the course of that dacoity the deceased was shot
to 5 are the witnesses examined by the prosecution to prove its case. PW.6 Dr. Shyam
Sunder Singh is the doctor who performed the post-mortem examination on the
body of the deceased at 10.00
a.m. on 13th November, 1985. The post mortem report and his
evidence leaves no manner of doubt that Shankar Rastogi met a homicidal death.
This was not even challenged by the appellants. PW. 7 is the investigating
Ansari deposed that he was sitting with Shambhu Lal, his son Mukund Lal, Shankar
(deceased) and the informant in the shop of the informant when 4-5 persons came
armed with country made pistols. He identified the appellants and Jagdish Chamar.
Nandji Rastogi, Jagdish Chamar and one unknown accused took Shankar to the
residential portion of the premises from the shop where he was sitting. The
residence of the informant is behind the shop in the same building. The
remaining two persons, namely Bal Mukund Rastogi and one unknown accused
prevented them from intervening in the matter. Soon thereafter he heard the
sound of gun fire and thereafter the accused fled. Kamla Rastogi, PW.2, mother
of deceased Shankar, and wife of the informant, came out and informed them that
Nandji had shot dead her son. This witness claims to have gone inside the house
and seen Shankar lying injured. He was removed to the hospital where he was
PW.2 is the mother of the deceased. She has stated that she was in the kitchen
when her grand son aged about 10-11 years, came and told her that dacoits had
entered the shop.
rushed towards the shop but on the way she saw Nandu and Jagdish holding her
son, while one unknown person was standing behind them. Nandu fired from his
pistol injuring Shankar who fell down on the spot. She thereafter came out, met
her husband and informed him, but prevented him from going inside on account of
fear. She also met, Manjoor Ansari, Shambhu Lal and his son Mukund Lal etc.
from whom she learnt that they were prevented from going inside by appellant
Bal Mukund Rastogi and another person.
Singh, PW.3 deposed that he was having tea at a tea stall nearby when the
lights went off. Soon thereafter he heard the report of gun fire and rushed
towards the house of the informant. He saw 5 persons coming out of the house of
the informant armed with country made pistols. Out of them, he identified the
appellants and Jagdish Chamar.
Mohan Rastogi, informant, in his deposition fully supported the facts mentioned
by him in the First Information Report. He further stated that while he was
trying to enter his house he was hit by an unknown accused on his head with the
butt of the pistol. He further stated that Ayodhya Tiwari, PW.5 and Mrityunjay
Singh, PW.3 came soon after the incident. He also informed the Court that Shambu
Lal and his son Mukund Lal were not willing to depose as witnesses in the case.
last important witness Ayodhya Tiwari, PW.5 deposed about the incident which
took place at 5.00 p.m. in which Nandji Rastogi had threatened the informant
warning him to caution his son, the deceased. At the time when the firing took
place he was in his room. He resided in the house of the informant. When he
heard the report of gun fire he wanted to come out of the house, but on seeing
5 persons coming out and running away, he did not stir out of his room
immediately. Later he came out and was told by Mrityunjay Singh, PW.3, the wife
of Manjoor, and the parents of the deceased about the occurrence. He had
identified the appellants and Jagdish Chamar.
the trial court and the High Court have undertaken a critical scrutiny of the
evidence on record, with the help of counsel for the parties, we have also read
the entire evidence. There is hardly anything in the cross-examination of the
witnesses which may cast a doubt on the truthfulness of their testimony. Their
credibility has not been impeached. They are natural witnesses and have deposed
in a forthright manner. There is no reason for us to interfere with the
findings recorded by the trial court and the High Court.
P.S. Mishra, Senior Advocate, appearing for the appellants submitted that the
grand child of the informant, who first came and reported to his grand mother Kamla
Rastogi that dacoits had entered the shop was not examined by the prosecution.
view the failure of the prosecution to examine the grand child of the informant
does not in any manner adversely affect the prosecution case, particularly when
large number of witnesses who are found to be reliable have supported the case
of the prosecution.
fact that the accused had reasons to be unhappy with the conduct of the
deceased and his father, cannot be disputed, and in fact, earlier in the
evening Nandji Rastogi had administered a warning to the informant in the
presence of Ayodhya Tiwari, P.W.5. The First Information Report was lodged
promptly at 8.00 p.m. on the same day and there was,
therefore, no opportunity for the prosecution to concoct a false case. The
deceased was shot dead in the residential apartment which was just behind the
shop where male members of the family were sitting. The actual killing was
witnessed by the mother of the deceased, PW.2, which is only natural because
she was inside the house preparing sweets to celebrate the Diwali festival. The
evidence on record, therefore, leaves no room for doubt that relations between
appellants on the one hand and the informant and his son on the other were
date of occurrence the appellants alongwith Jagdish Chamar and two unknown
persons came to the shop of the informant and while Bal Mukund Rastogi and one
unknown accused prevented the informant and others from intervening by
threatening them with pistols, Nandu Rastogi, Jagdish Chamar and the other
unknown accused took Shankar Rastogi to the residential apartment, just behind
the shop, where he was shot dead by Nandu Rastogi which was witnessed by Kamla Rastogi,
PW.2, the mother of the deceased.
counsel for the appellants could not persuade us to accept the case of the defence
that no such occurrence took place and that Shankar Rastogi was killed in the
course of dacoity.
is no evidence whatsoever to support the defence case which must be rejected.
then submitted that in any event so far as Bal Mukund Rastogi is concerned,
there is no allegation that he took part in the assault. He submitted that his
false implication cannot be ruled out. In any event it is submitted that his
conviction with the aid of Section 34 IPC is not justified in the facts and
circumstances of the case. He relied upon two decisions of this Court in Parshuram
Singh vs. State of Bihar : JT 2002(1) SC 407 and Suresh and
another vs. State of U.P. (2001) 3 SCC 673. These decisions
do not help the defence. In Parshuram Singh (supra) this Court gave to two of
the accused persons the benefit of doubt having regard to the peculiar facts
and circumstances of that case. Against one of the accused in that case the
allegation was that he exhorted the others to kill the deceased, and though he
himself was armed with lathi, he did not take any part in the assault. The
Court found that the surrounding circumstances of the case did not ensure the
confidence that he made such an exhortation. Apart from not using the weapon,
which was handy with him, there appeared no reason for him to take up the
leadership of the gang as he had no quarrel with the deceased. As regards the
other accused to whom the benefit of doubt was extended, the Court found that
it was highly improbable that he would have refrained from using the inherently
lethal weapon like the pistol which was in his possession if he shared the
common intention. In our view the decision in Parshuram Singh's case rests on
its own peculiar facts and no principle of law can be culled from that decision
which may be of any assistance to the appellants in this case.
P.S. Mishra then drew our attention to paragraph 23 of the judgment in Suresh
vs. State of U.P. (supra) wherein it has been
observed that to attract Section 34 IPC two postulates are indispensable :
The criminal act (consisting of a series of acts) should have been done, not by
one person, but more than one person.
Doing of every such individual act cumulatively resulting in the commission of
criminal offence should have been in furtherance of the common intention of all
such persons. He also drew our attention to the discussion in the judgment
about the difference between a "common intention" and "similar
been observed by this Court that to attract the applicability of Section 34 of
the Code the prosecution is under an obligation to establish that there existed
a common intention which requires a pre-arranged plan, because before a man can
be vicariously convicted for the criminal act of another, the act must have
been done in furtherance of the common intention. The Court observed:
34 of the Indian Penal Code recognizes the principle of vicarious liability in
criminal jurisprudence. It makes a person liable for action of an offence not
committed by him but by another person with whom he shared the common
a rule of evidence and does not create a substantive offence. The section gives
statutory recognition to the commonsense principle that if more than two
persons intentionally do a thing jointly, it is just the same as if each of
them had done it individually. There is no gainsaying that a common intention
presupposes prior concert, which requires a prearranged plan of the accused
participating in an offence. Such preconcert or preplanning may develop on the
spot or during the course of commission of the offence but the crucial test is
that such plan must precede the act constituting an offence. Common intention
can be formed previously or in the course of occurrence and on the spur of the
moment. The existence of a common intention is a question of fact in each case
to be proved mainly as a matter of inference from the circumstances of the
case." In the facts of the case the Court found that Pavitri Devi, accused
No.3 could not be held guilty of the offence of murder with the aid of Section
34 since she was merely standing on the road when the incident happened. Her
mere presence without doing anything more, without even carrying a weapon, and
without even marching along with the other assailants, did not attract Section
facts of this case are quite different. Appellants alongwith three others came
armed with country made pistols.
came together, and while two of them stood guard and prevented the prosecution
witnesses from intervening, three of them took the deceased inside and one of
them shot him dead.
they fled together. To attract Section 34 IPC it is not necessary that each one
of the accused must assault the deceased.
enough if it is shown that they shared a common intention to commit the offence
and in furtherance thereof each one played his assigned role by doing separate
acts, similar or diverse. The facts of this case are eloquent and the role
played by Bal Mukund Rastogi of preventing the prosecution witnesses from going
to the rescue of the deceased was the role played by him with a view to achieve
the ultimate objective of killing Shankar Rastogi. We, therefore, entertain no
doubt that all the five persons who came to the shop of the informant had a
common intention to commit the murder of Shankar Rastogi and they acted
pursuant to a pre arranged plan. The facts clearly are consistent only with the
hypothesis of their acting in furtherance of a common intention.
have, therefore, rightly been convicted with the aid of Section 34 IPC.
therefore, find no merit in these appeals which are dismissed.