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CASE NO.: Appeal (crl.)  720 of 2006

PETITIONER: Prakash

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 01/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Appellant herein has questioned a judgment of conviction and  sentence dated 25.03.2005 passed by the High Court of Madhya Pradesh,  Indore Bench, Indore in Criminal Appeal No.157 of 1997, wherein  Appellant was found guilty for commission of an offence punishable under  Section 304 Part-I read with Section 34 of the Indian Penal Code (IPC) and  sentenced to suffer rigorous imprisonment for eight years.  The High Court  by reason of the said judgment, however, set aside the conviction and  sentence of Appellant under Section 302 read with Section 34 IPC.

       The incident in question took place on 30.10.1991.  At about 01.00  p.m. Badrilal, co-accused, Appellant and Ramprasad (deceased), quarreled  on account of damage to the crops by cattles.  Allegedly, Badrilal was  assaulted by Ramprasad.  On the same day at about 05.30 p.m. the deceased  was going to the market.  When he came near a gate known as ’badi phatak’,  Appellant together with the said Badrilal and Dinesh chased him with lathis.   They were asked not to do so by the witnesses.  Despite the same, they did  not desist from so doing.  Appellant gave him a lathi blow on his leg.   Badrilal assaulted him on the parietal region of the deceased.  Thereafter, the  accused persons along with four others ran away from the spot.   

       Ramprasad was removed to the Primary Health Centre.  He was  examined by Dr. K.K. Sharma (PW-17).  He thereafter succumbed to the  injuries, whereupon  post-mortem on his dead body was conducted by Dr.  Ravinder Choudhry (PW11).  Death was opined to have occurred on account  of multiple fractures of parietal bone of the deceased.

       The prosecution examined 19 witnesses before the learned Sessions  Judge.  The defence also examined 3 witnesses.  While others were  acquitted, Appellant, Badrilal and Dinesh were convicted under Section  302/34 IPC.  Dinesh admittedly has expired.  Appeal preferred by Badrilal  and Appellant, as noticed hereinbefore, have been disposed of by the High  Court by reason of the impugned judgment.   

       The learned counsel appearing on behalf of Appellant, would submit :

1)      Eye-witnesses examined on behalf of Appellant are not reliable; 2)      Ocular evidence is inconsistent with medical evidence; 3)      There is inconsistency between the opinions of the two doctors          examined on behalf of the prosecution, namely, Dr. K.K. Sharma          (PW-17) and Dr. Ravinder Choudhry (PW-11); and 4)      In any view of the matter, the prosecution cannot be said to have          proved common intention on the part of Appellant herein to          commit murder of deceased Ram Prasad.

       We have noticed hereinbefore that on the same day there had been

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two incidences.  In the first one, Badrilal was assaulted by the deceased and  in the second one, the deceased was assaulted upon having been chased by  the accused persons.

       Hiralal (PW-2), and Mangilal (PW-3) are witnesses to the second  occurrence whereas Laxminarayan (PW-5) and Rameshchandra (PW-6) are  witnesses to both the occurrences.  Apart from the said witnesses, the  prosecution relied also upon the evidence of Bhimsingh (PW-8).

       Both the learned Sessions Judge as also the High Court have relied  upon the evidence of the eye-witnesses.  We have been taken through the  depositions of the said witnesses.  We do not see any reason to differ with  their opinion.  We would, however, deal with the prosecution evidence and  the materials brought on records while adverting to the question of forming  common intention of the accused.

       The deceased, Ramprasad was a teacher.  PWs-5 and 6 were  categorical in their statements that in the first occurrence, the deceased had  hit Badrilal with stick twice.  They were separated by some of the  prosecution witnesses.  At about 5 O’ clock, when the witnesses were  returning from the Hat, they saw Badrilal, Dinesh and two-three other  persons chasing the deceased.  The witnesses tried to pacify them.  They ran  to save him, but Prakash and Badrlal jumpged a hedge and came near the  deceased.  Appellant is said to have hit the deceased in his leg, whereafter  Badrilal had assaulted him on the head from behind.  They thereafter fled  away.  PWs-2 and 3  also testified to the aforementioned effect.  PW-2 was  the first person to bring water from a shop and gave it to the deceased after  he had fallen down.

       PW-17 in his deposition stated that upon examining the deceased he  had noticed the following injuries on his person :

"i.     A bruise 2 x 2 inches upon frontal portion of Head.           The said injury would have been caused by and          blunt but hard material.  Considering the          seriousness of the injury, I referred him to M.Y.          Hospital, Indore.  The injury had been received          within 6 hours."                   

                The Autopsy Surgeon, Dr. Ravinder Choudhry (PW-11), on the other  hand,  found the following injuries on the person of the deceased :

"i.     A contusion hembresion 2.4x2 cm. upon left          parietal region of the head, which colour was          reddish brown.

ii.     A contusion 3.1 x 2 cm. upon the back on the left          side of the shoulder.          iii.    A contusion of 3.8 x 2 cm. in the middle of left          shoulder (front side), which colour was reddish          brown.

iv.     Haematoma was present upon the Head."    

       The injuries received by the deceased on his head caused multiple  fractures.   The intensity with which he was hit is, thus, self-evident.  Apart  from the injury on head, he suffered injury upon the back on the left side of  the shoulder.  There was another injury in the middle of left shoulder.   Submission of the learned counsel is two-fold : (i) no injury on the leg was  found; and (ii) the injuries found by PW-11 and PW-17 are somewhat  inconsistent.

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       All the eye-witnesses categorically stated that the first assault was  made by Appellant.  Apparently, he might have done so to immobilize the  deceased, whereupon assault on other parts of his body could have been  inflicted.

       Absence of any injury on the leg, in our opinion, is not of much  significance.   It is also not much of significance that PW-17 found only one  injury on the person of the deceased.  He was brought to the Primary Health  Centre on an emergency basis.  The head injury was serious in nature.  The  doctor, therefore, must have given his entire attention only thereto.

       Only because the said witness in cross-examination stated that he  must have examined all the injuries, in our opinion, is not of much  significance.  Homicidal nature of death of the deceased is not dispute.  The  place, time and date of occurrence is also not in dispute.  The fact that PW- 17 treated him at the Primary Health Centre is also not in dispute.  Similarly,  the contents of the post-mortem report are also not in dispute.  We, thus, fail  to understand as to how some difference in the the medical opinions of PW- 17 and PW-11 would help the cause of Appellant.                     Section 34 of the Indian Penal Code provides for a vicarious liability.   It reads as under :

"S. 34. When a criminal act is done by several persons in  furtherance of the common intention of all, each of such  person is liable for that act in the same manner as it were  done by him alone."

       Before a person can be held liable for acts done by another, under the  said provision, it must be established that :  (i) there was common intention  in the sense of a pre-arranged plan between the two; and (ii) the person  sought to be so held liable had participated in some manner in the act  constituting the offence.        

       The reason why the persons having common intention are deemed to  be guilty is that the presence of accomplices gives encouragement, support  and protection to the person actually committing an act.  For attracting the  provisions of Section 34 IPC, the physical presence of the accused at the  place of occurrence need not be proved.  He may not be present on the  actual scene of occurrence.  He may, however, stand guard outside the  room, or  ready to warn his companions.  His presence at the place of  occurrence in a given situation may be found to be sufficient.  He must  participate in the commission of the crime, but the same does not mean that  some overt act must be attributed on his part.  His participation may be in  one way or the other at the time  crime is actually committed.   [See Shiv  Prasad Chuni Lal Jain  v.  State of Maharashtra  [AIR 1965 SC 264].

       Proof of participation by acceptable evidence in certain circumstances  would lead to a conclusion that the accused had a common intention to  commit the offence.  Presence or absence of community of interests may not  of much significance.  Each case, however, has to be considered on its own  merit.  Facts of each case may have to be dealt with differently.  Common  intention may develop on the spot.  Although a pre-arranged plan and   meeting of minds is one of the pre-requisites to infer common intention, a  prior concert, however, can be inferred from the conduct of the accused.   The role played by him, the injuries inflicted and the mode and manner in  which the same was done as also the conduct of all the accused are required  to be taken into consideration for arriving at a finding as to whether the  accused shared a common intention with others  or not.  Common intention  may have to be inferred also from other relevant circumstances of the case.   The totality of the circumstances must be taken into consideration in arriving  at such a conclusion

       In Preetam Singh and Others v. State of Rajasthan [(2003)  12 SCC  594], a Bench of this Court in the fact of the case opined that the appellants

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therein developed a common intention, which was clearly evident from their  conduct therein.   They might not  have intended to kill the deceased,  but   definitely intended  to silence him by inflicting injuries.  This Court held that  the nature of injuries inflicted by two of them may be a circumstance to be  taken into account to infer common intention to kill the deceased.  But  having regard to the fact situation involved therein, held that common  intention was actually to commit an offence punishable under Section 304  Part I IPC.      

       In Sukumar Roy v. State of West Bengal [(2006) 10 SCALE 512], one  of us (Katju, J.), opined :

       "From the evidence it is clear that the deceased  and his men were unarmed and there was no provocation  on their part.  It also seems that the deceased and the  appellant are co-sharer in the land being plot No.743.   There is no evidence on record to show that the deceased  and his men assaulted the appellant and his family  members.  Hence, in our opinion the conviction under  Section 304 Part I read with Section 34 IPC was fully  justified."

[See also Ramjee Rai and Others v. State of Bihar \026 2006 (8) SCALE 440;  and Surendra & Another v. State of Maharashtra \026 2006 (8) SCALE 469]                       Reliance has been placed by the learned counsel on Malkhan Singh  and Another v. State of Uttar Pradesh  [(1975) 3 SCC 311], wherein the  accused who were two in number were riding on a cycle, but only one of  them fired a shot.  This Court held that the accused was only an innocent  companion and the fact that he had  accompanied the principal accused in  running away after the incident was found to be immaterial.   

       Reliance placed on Rana Partap and Others v. State of Haryana  [(1983) 3 SCC 327] is misplaced, as on the facts involving therein,  common  intention to commit murder was found to have not been established.   However, common intention to cause grievous hurt was proved.  The said  opinion was arrived at although the circumstances of the case clearly  established  the  existence of the common intention, but the evidence was  not clear; and that the appellants therein had not said anything to indicate  that they intended the deceased to be done away.  Such a opinion was  arrived at with "some hesitation", holding  :    "\005It is one of those borderline cases where one may  with equal justification infer that the common intention  was to commit murder or to cause grievous injury\005"  

       In Smt. Tripta v. State of Haryana [AIR 1993 SC 948], whereupon  also reliance was placed by the learned counsel for the appellant, the  deceased died  after fifteen days.  Only a lacerated wound on the left side of  scalp was found.  Apellant therein who was a lady went to the deceased to  question as to why he had transferred his lands.  It was held that the reply of  the deceased must have irked her, and the main accused had started  assaulting the deceased.  Having regard to the role played by the lady as also  keeping in view the fact that the deceased died after fifteen days, it was held  that no case under Section 302/34 IPC was made out against her particularly  in view of the fact that she had no role to play in causing injuries to other  persons present there, although the main accused had assaulted them.          Reliance placed on Ramashish Yadav and Others v. State of Bihar  [AIR 1999 SC 3830], in our opinion is again not apposite. Common  intention was not found to have been formed having regard to the fact  situation obtaining therein.  We do not think that the said decision has any  application in the instant case.         In Balram Singh and Another v. State of Punjab  [(2003) 11 SCC  286], distinguishing Ramashish Yadav (supra), this Court opined that  although the appellants therein did not assault the deceased, the fact that they  were armed and the manner in which they prevented PWs 1 and 2 from

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protecting their father by causing them grievous injuries also showed that the  attack on PWs 1and 2 was aimed at ensuring that the deceased was done  away with,  and the deceased did not get sufficient protection and on that  premise Section 34 of IPC was invoked.               In Ramesh Singh alias Photti v. State of A.P. [(2004) 11 SCC 305],  referring to Ramashish Yadav (supra) and two other decisions, namely, Ajay  Sharma  v. State of Rajasthan [(1999) 1 SCC 174] and Mithu Singh v. State  of Punjab [(2001) 4 SCC 193], it was held :   "A reading of the above judgments relied upon by the  learned counsel for the appellants does indicate that this  Court in the said cases held that certain acts as found in  those cases did not indicate the sharing of common  intention. But we have to bear in mind that the facts  appreciated in the above judgments and inference drawn  have been so done by the courts not in isolation but on  the totality of the circumstances found in those cases.  The totality of circumstances could hardly be ever similar  in all cases. Therefore, unless and until the facts and  circumstances in a cited case is in pari materia in all  respects with the facts and circumstances of the case in  hand, it will not be proper to treat an earlier case as a  precedent to arrive at a definite conclusion. This is clear  from some judgments of this Court where this Court has  taken a different view from the earlier cases, though  basic facts look similar in the latter case. For example, if  we notice the judgment relied upon by the learned  counsel for the respondent i.e. the case of Hamlet alias  Sasi v. State of Kerala (supra), this Court held that the  fact that one accused held the deceased by his waist and  toppled him down while the other accused attacked him  with iron rods and oars was held to be sufficient to base a  conviction with the aid of Section 34 IPC. The fact of  holding the victim is similar in the cases of Vencil  Pushpraj and Hamlet alias Sasi (supra) but the  conclusions reached by this Court differ because the  circumstances of the two cases were different. In Nandu  Rastogi alias Nandji Rustogi and Anr. v. State of Bihar  (supra) this Court held that to attract Section 34 IPC it is  not necessary that each one of the accused must assault  the deceased. It was held in that case that it was sufficient  if it is shown that they had shared the common intention  to commit the offence and in furtherance thereof each  one of them played his assigned role. On that principle,  this Court held that the role played by one of the accused  in preventing the witnesses from going to the rescue of  the deceased indicated that they also shared the common  intention of the other accused who actually caused the  fatal injury."

       Common intention on the part of Appellant herein is evident.  All the  accused armed with lathis.  The deceased was unarmed.  He was taken by  surprise.  He started running, but was chased.  The witnesses intervened.   They tried to pacify  Appellant and the co-accused.  They did not pay any  heed thereto.  They for the purpose of committing the assault even jumped  over a hedge.  As the deceased was running, evidently a blow on leg was  given so as to stop him from doing so.  Evidently he fell down, which   facilitated the other accused to cause injuries on his person, including the  fatal injury on his head.         We, therefore, are of the opinion that the circumstances existing  herein categorically establish formation of common intention amongst the  accused.                    The appeal is, therefore, dismissed, particularly when  Appellant has  not been convicted of an offence punishable under Section 302 read with  Section 34 IPC, but under Section 304 Part-I of IPC.