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PETITIONER: SHRI JAGANNATH & 2 OTHERS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT12/01/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1995 AIR  712            1995 SCC  Supl.  (1) 564  JT 1995 (1)   553        1995 SCALE  (1)173

ACT:

HEADNOTE:

JUDGMENT: M.K. MUKHERJEE, J.: 1.  This  appeal by special leave is  directed  against  the judgment  of the Allahabad High Court dismissing the  appeal preferred  by  the  three appellants herein  and  one  Badri Narain (since dead) challenging the conviction and  sentence recorded against them under Section 302/34 and 323/34 of the Indian  Penal Code (hereinafter referred to as the ’IPC’  by the Additional Sessions judge Gonda. 2.The story as put forth by the prosecution was that on June 7,1978  at or about 900 A.M. a heated alteration took  place between  Shyam Narain (the deceased) and his brother  Narain Dutt on the one hand and Badri Narain and his son Swami Nath (since acquitted) on the other, over dismantling of the mend which divided their respective agricultural plots.  At  that time Badri Narain was holding a spear and Swami Nath a kudal with  him.   While the altercation was  going  on,the  three appellants  reached there armed with lathis.  In  course  of the  altercation when Swami Nath attempted to  attack  Shyam Narain  with kudal the latter and Narain Dutt tried  to  run away  towards the village but could not succeed as the  five accused  persons, including the appellants, surrounded  them and  started assaulting Shyam Narain with  their  respective weapons.   On hearing the shouts of Shyam Narain and  Narain Dutt  when their brother Swami Dayal and his  son  Ramashish reached there,the three appellants also assaulted them  with lathis.   As  a  result of the  beating  when  Shyam  Narain dropped  down  dead, the accused persons  ran  away.   Swami Dayal  then  went to the police station and  logged  an  FIR whereupon a case was registered,which ended in a chargesheet against all the five accused persons. 3.To  bring  home  the charges  levelled  against  them  the prosecution rested its case 555 primarily  upon the ocular version of the incident as  given out  by Swami Dayal (P.W.1), Jamil Khan (P.W.2)  and  Narain

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Dutt (P.W.3). The learned trial judge, found that the  claim of Jamil Khan and Narain Dutt that they were present at  the time of the incident and, for that matter, had witnessed the same was wholly untenable and therefore left their  evidence out of consideration.  As regards, Swami Dayal (P.W. 1)  the learned judge observed that find of injury on his person, as testified  by the doctor (P.W.5) and his prompt  lodging  of the F.I.R. lent sufficient corroboration to his testimony to form the basis of conviction.  It having, however,  appeared to the learned judge that Swami Nath was roped in because he was the son of Badri Narain though he did not participate in the  assault  he acquitted Swami Nath  while  recording  the order of conviction and sentences against the appellants and Badri  Narain.   The  High  Court  concurred  with  all  the findings  recorded by the learned trial judge and  dismissed the appeal. 4.   In view of the concurrent findings of fact we would not have,  ordinarily,  been justified to disturb the  same  but then on perusal of the impugned judgments, we find that both the earned Courts below failed to consider that Swami  Dayal did  not  state in the F.I.R. that the three  appellant  had assaulted  the  deceased with lathis.  This  aspect  of  the matter assumes importance for,it appears that in  concluding that  the  three appellant shared the  common  intention  of committing the murder of Shyam Narain with Badri Narain  and for that matter, convicting them under Section 302 with  the aid  of  Section 34 I.P.C.- while  convicting  Badri  Narain under  Section 302 I.P.C. simplicited  the trial  court  was much  influenced  by  the fact  that  the  three  appellants assaulted  Shyam  Narain  with  lathis  while  Badri  Narain assaulted him spear resulting in his death, 5.   From the testimony of Swami Dayal (P.W. 1.) we get that on the fateful morning when he was going towards their  plot along  with his son Ramashish he saw accused Swami Nath  and Badri Narain having heated arguments with his brothers Shyam Narain Dutt regarding the dismantling of the mend.  At  that time he found Badri Narain holding a spear and Swami  Narain a  Kudal but his brothers unarmed.  While they were  on  the plot and the arguments were going on the other three accused (the  three  appellants herein) reached there  with  lathis. All  of  them then started abusing Shyam Narain  and  Narain Dutt.   In  the mean time Swami Nath attacked  Shyam  Narain with Kudal but as he retreated it did not hit him.  Then, as Shyam  Narain  and  Narain Dutt tried to  flee  towards  the village,  all  the  accused  person  attacked  Narain  Dutt. According  to P.W 1, Badri Narain assaulted him  with  spear and  the  three appellants with the lathis.  He  next  spoke about the assault on him and his son by the three appellants and Badri Narain.  In the F.I.R.,however, the only role that was  ascribed by P.W. 1 to the three appellants relating  to the attack on Shyam Narain was that when he had ran  towards the  village they had also chased him along with  the  other two  accused and surrounded him.  To put it  negatively,  in the  F.I.R.  he did not state that the appellants  had  also assaulted the deceased much less with lathis. 6.   As already stated in relying upon the sole testimony of P.W.1 both the learned courts below took into consider- 556 ation the fact that his testimony stood corroborated by  the F.I.R.  which  he  lodged with  utmost  dispatch.   In  that context  it was expected, in the fitness of things, that  if really  the  appellants  had assaulted  the  deceased  Swami Dayal, P.W.1 would have certainly mentioned that fact in the F.I.R.  In  view  of  this material  omission  it  would  be hazardous  to place implicit reliance upon the statement  of

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P.W.1 without any corroborating evidence that the appellants had along with Badri Narain assaulted Shyam Narain resulting in his death; and to hold, as a corollary thereto, that they shared die common intention with the other accused to commit the murder of Shyam Narain. 7.   It was, however,urged on behalf of the respondents that even  if  the  testimony  of  Swami  Dayal  that  the  three appellants  assaulted the deceased could not be relied  upon as  he  did not attribute such role to them  in  the  F.I.R. still  then  their conviction under Section  302  read  with Section 34 of the I.P.C. for committing the murder of  Shyam Narain  should be upheld having regard to the fact that  the evidence  of  P.W.1  that  the  appellants  had  chased  and surrounded  the deceased when he was attacked by  the  other accused stood corroborated by the F.I.R. and that their such criminal acts, clearly established their common intention to commit the murder. 8.   Undoubtedly  the  above  criminal  acts  of  the  three appellants, which must be held to be conclusively proved  in view of the concurrent findings of the learned Courts below, clearly indicate that they shared some common intention with the  other  accused but then the question is  whether  their common  intention  was to commit the  murder.   Besides  the evidence  of  P.W.1 of their having assaulted  the  deceased with lathis- which we have found to be unacceptable-there is no  other  evidence,  to  indicate,  that  they  wanted  the deceased  to  be  done away with.  It cannot  be  gain  said however,  that  their acts facilitated the stabbing  of  the deceased  by Badri Narain but there is noting whatsoever  to indicate  that the appellants knew that he intended to  kill him though they must have anticipated that he would  assault the  deceased  with the spear that he was carrying  In  that view  of  the  matter we conclude  that  though  the  common intention  of  the appellants to cause the  death  of  Shyam Narain  has  not  been  established  beyond  all  reasonable doubts,  it  has been conclusively  established  that  their common intention, was to cause injuries to the deceased with deadly weapon, namely, spear. 9.   In  the result the conviction of the  appellants  under Section 302 read with Section 34 IPC and the sentence of im- prisonment  for life for causing the death of  Shyam  Narain are  set aside and instead they are convicted under  Section 324  read  with  Section 34 IPC and  sentenced  to  rigorous imprisonment  for  a  period  of  two  years  each.    Their conviction under Section 323 read with Section 34 IPC  along with the sentence of one year each thereunder, is uphold  as it does not suffer from any infirmity.  The sentences  shall run concurrently.  The appeal is thus allowed in part. 557