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PETITIONER: BHABA NANDA SARMA & ORS.

       Vs.

RESPONDENT: THE STATE OF ASSAM

DATE OF JUDGMENT12/10/1977

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. GOSWAMI, P.K. DESAI, D.A.

CITATION:  1977 AIR 2252            1978 SCR  (1) 714  1977 SCC  (4) 396  CITATOR INFO :  R          1988 SC 863  (11)

ACT: Indian  Penal Code, S. 34 vis-a-vis s. 38-Assault by  common intention  to  cause  injury  likely  to  result  in  death- Development   of   further  common  intention   among   some assailants  to  commit murder-Liability for  murder  whether shared by all participants under s. 34.

HEADNOTE: The  three appellants assaulted deceased Shashi  Mohan  with the common intention to cause injury likely to result in his death,  but  during  the assault, two of  them  developed  a further  common  intention of murdering him.   The  sessions Court tried the appellants for charges u/ss. 302/34 and  ss. 323  /34  I.P.C.  but  giving them  the  benefit  of  doubt, acquitted them.  In a State appeal, the High Court set aside the  acquittal  order,  and  convicted  all  the  assailants sentencing them for life. This Court considered the question whether the conviction of all  the three appellants u/s. 302 with aid of s. 34  I.P.C. was justified in law, and partly allowing only the appeal of Bhaba Nanda Sarma. HELD  :-Applying  the principle of law under s.  38  of  the Penal  Code, the case of Bhaba Nanda can be  separated  from that of his two brothers.  He shared their common  intention to assault, with the knowledge that it was likely to  result in death but while committing the act in furtherance of that common  intention,  the other two developed and  shared  the common  intention of causing the murder.  Bhaba  Nanda  can, therefore,  be held guilty only u/s. 304 Part 11  while  the other two appellants are liable for the murder with the  aid of s. 34 of the Penal Code. [717 G-H, 718 A-B] Afrahim  Sheikh  and Ors. v. State of West Bengal  [1964]  6 S.C.R. 172 referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of 1972.

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Appeal  by Special Leave from the Judgment and  Order  dated the  24-11-1971  of  the Assam and Nagaland  High  Court  at Gauhati in Criminal Appeal No. 20 of 1968. S.   K. Nandy for the Appellants. S.   N. Choudhary for the Respondent. The Judgment of the Court was delivered by UNTWALIA,  J.-This is an appeal under section 2 (a)  of  the Supreme   Court   (,Enlargement   of   Criminal    Appellate Jurisdiction)  Act, 1970 by three persons who are  brothers. On  the  10th  of  November, 1967 at about  7.00  A.  M.  an occurrence  took place in a village near Barpeta  in  Assam. The  prosecution case was that Shashi-Mohan Sarma, a  person who  lost his life as a result of the assault on  him’,  in the  company of his elder brother Gopi Nath Sarma,  P.W.  2, was  proceeding  to his field with some mustard seeds  in  a basket.  Gopi Nath was going with some cattle to tether them in  the field.  When they proceeded to some distance  Shashi Mohan  was chased by the three appellants,  appellant  Bhaba Nanda  Sarma who was aged about 20 years at the time of  the occur- 715 rence was armed with a lathi, appellant Phanidhar Sarma  had a dolibari (a wooden hammer with along handle) and appellant Harendra  Nath Sarma carried an iron rod in his hand.   They all  chased  Shashi  Mohan.  Shashi Mohan  ran  towards  his brother Gopi Nath raising alarm.  Bhaba Nanda caught hold of both  the  hands of Shashi Mohan  from  behind.   Thereupon, Phanidhar  gave  him a blow on his head with  the  dolibari. Shashi Mohan fell down.  There-after Harendra struck  Shashi Mohan  on Ms head and other parts of as body with  the  iron rod.  Gopi Nath tried to intervene.  Bhaba Nanda caught hold of  Gopi Nath also Harendra assaulted him with the iron  rod causing  injuries.  Shashi Mohan was taken to  the  hospital where  he died at about 3.00 A.M. on the 11th  of  November, 1967  as  a  result  of severe injuries  caused  to  him  by Phanidhar and Harendra.  The injuries inflicted on Gopi Nath were all simple in nature.  After charge-sheet by the police and  committal by the Magistrate, the appellants were  tried in  the  Sessions Court for charges under section  302  read with section 34 and section 323 read with section 34 of  the Indian Penal Code.  The Trial Judge gave them the benefit of doubt  and  acquitted  them.  The State of  Assam  filed  an appeal  in  the High Court of Gauhati.  The High  Court  set aside  the  order  of acquittal,  convicted  all  the  three appellants  for the offence of murder of Shashi  Mohan  with the  aid of section 34 and sentenced each of them to  impri- sonment  for life.  Their conviction under section 323  read with  section 34 was also recorded by the High Court but  no separate sentence was imposed.  Hence this appeal. The  eye witnesses of the occurrence were P.W. 2  Gopi  Nath Sarma;  P.W.  3 Danesh Ali; P.W. 4 Nur Mohammad and  P.W.  6 Kurpan  Ali.  The High Court in its judgment has  catalogued the  main five reasons which led the Sessions Judge to  make an  order of acquittal in favour of the appellants.  In  our opinion  the High Court was right in reversing the  judgment of  the  Trial  Judge  and interfering  with  the  order  of acquittal.   It did so well within the limits of  its  power and  the  law  as  enunciated  by  this  Court  in   several decisions.   The four reasons given by the learned  Sessions Judge  were  of  a flimsy nature.  It did  not  justify  the entertaining of any doubt in regard to the prosecution story on the basis of these reasons.  One of the five reasons  was that  the  P.Ws did not state about the  injuries  of  Bhaba Nanda and they were not explained by the prosecution. In our  opinion  the High Court has rightly not  attached  much

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significanceto the alleged failure of the prosecution  to explain the injuries on Bhaba Nanda.   The injuries  on  his person were of a very minor nature, three ofthem      being ecchymosis  and  one  swelling of the root  of  right  index finger. The  evidence  of  the  Doctor  D.W.  1  was   not sufficient to prove that theinjury  on  the  right   index finger  was grievious in nature.  The  ecchymosis  inquiries however, were all very simple.  Bhaba Nanda did not claim in his  statement  under section 342 of the  Code  of  Criminal Procedure,  1898  as to with what weapon the  injuries  were caused  on  his person.  He merely said  that  Gopinath  and Shashi  gave  blows on his back.  He did not  attribute  the right index finger injury as having been caused by either of the  two.   No  defence witness was  examined  to  give  any counter version of the occurrence.  Bhaba Nanda did not show his  injuries to the Investigating Officer, as  is  apparent from  his  evidence,  when he arrested him  soon  after  the occurrence.  No counter information 9-951 SCI/77 716 was lodged with the police nor any counter case filed.  In a case  of  this nature before an adverse inference  is  drawn against  the  prosecution  for its  alleged  suppression  or failure to explain the injuries on the person of an accused, it  must be reasonably shown that, in all  probability,  the injuries  were caused to him in the same occurrence or as  a part  of  the same transaction in which the victims  on  the side of the prosecution were injured. The  prosecution  is not  obliged  to explain the  injuries              oil  the personof   an   accused  in  all  cases   and   in   all circumstances.            This is not thelaw.   It   all depends upon the facts and circumstances of each casewhether the  prosecution  case becomes reasonably doubtful  for  its failure  to  explain the injuries on the  accused.   In  the instant  case  the  Sessions  Judge  was  not  justified  in doubting  the  truth  of  the  version  given  by  the   eye witnesses-three  of whom were wholly independent  witnesses. Gopi Nath was surely present on the scene of the  occurrence as  he  himself  had  received  the  injuries  in  the  same transaction.   The  High  Court  has  rightly  believed  the testimony of the eye witnesses. The  question  for consideration, however,  is  whether  the conviction  of  all the three appellants under  section  302 with  the aid of section, 34 of the Penal Code is  justified in law. To  attract  the  application  of  section  34  it  must  be established beyond any shadow of doubt that the criminal act was  done  by several persons in furtherance of  the  common intention  of  all.  In other words,  the  prosecution  must prove  facts to justify an inference that all  the  partici- pants of the act bad shared a common intention to commit the criminal  act which was finally committed by one or more  of the participants.  Section 38 of the ’Penal Code says :-               "Where   several   persons  are   engaged   or               concerned in the commission of a criminal act,               they  may be guilty of different  offences  by               means of that Act." In  Afrahim  Sheikh and others v. State  of  West  Bengal(1) Hidayatullah J. as he then was, has pointed out that it  was possible to apply the ingredients of section 34 in  relation to the commission of an offence tinder section 304 Part  II, even  though  death  is caused with  the  knowledge  of  the persons  participating in the occurrence that by  their  act death  was likely to be caused.  The sharing of  the  common intention, as pointed out in that case, is the commission of

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the  act  or  acts  by which  death  was  occasioned.   With reference to section 38, the learned Judge observed at  page 178 :               "That  is to say, even though several  persons               may   do   a   single   criminal   act.    the               responsibility  may  vary  according  to   the               degree    of   their    participation.     The               illustration which is given clearly brings out               that point.               lastly   section   38  provide.,    that   the               responsibility  for the corn  pleted  criminal               act  may be of different grades  according  to               the  share taken by the different  accused  in               the  completion of the criminal act, and  this               section   does  not  mention  anything   about               intention common or otherwise or knowledge." (1)[1964] 6 S.C.R. 172. 717 The injuries found on the person of the deceased by P. W.  5 Dr. S. Kalita, who held the autopsy over the dead body  were of  a very severe nature.  The fatal injuries in  particular were  the three head injuries.  According to the  consistent version of the prosecution-one was caused by Phanidhar  with the  dolibari and the other two were inflicted  by  Harendra with the iron rod.  Harendra is also said to have caused the other  injuries  found on the person of Shashi  Mohan.   The result  of  the  three head injuries  was  fracture  of  the occipital  bone  into six pieces and fracture of  the  right parietal  bone 2" in length.  In the opinion of  the  Doctor the  death  was  due to coma as  a  result  of  intracranial hemorrhage  caused by the injuries sustained by the  victim. The  two  authors  of the injuries,  namely,  Phanidhar  and Harendra,  therefore,  undoubtedly  had  shared  the  common intention  of causing such bodily injuries to  Shashi  Mohan which  were sufficient in the ordinary course of  nature  to cause his death.  In other words, his death was as a  result of the 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  of  Shashi Mohan with the aid of section 34 of the Penal Code is fully established.  The case of Bhaba Nanda, however, stands on  a different footing and can justifiably be separated from that of the other two appellants. On  the evidence of Gopi Nath himself the  result  aforesaid follows.   Shashi  Mohan had reached near him  and  when  he tried  to  obstruct  the  accused  and  prevent  them   from committing  the  assault on Shashi Mohan Harendra  said  "we have  met enemy today, need not be freed".  Thereupon  Bhaba Nanda caught hold of-the hands of Shashi Mohan from  behind. Phanidhar  then  gave him the blow on the head,  as  already stated, with the dolibari.  Harendra gave further blows  on his head and other parts of his body after Shashi fell down. On these facts it is difficult to conclude that Bhaba  Nanda caught  hold  of  the hands of  Shashi  sharing  the  common intention of Phanidhar and Harendra of causing the death  of Shashi.  He did not utter a word which would justify such  a conclusion.   He must be aware that his two  elder  brothers Phanidhar  and  Harendra were going to assault  Shashi  with their  respective weapons in their hands.  Bhaba  Nanda  did not  use his lathi for causing any injuries on Shashi.   The first  blow was given by Phanidhar.  Thereupon  Shashi  fell down.   Bhaba Nanda’s intention, therefore, was to  join  in the  commission  of  the  acts by the  other  two  with  the intention  of  getting Shashi assaulted  severely  with  the knowledge  that  such  an assault  in  all  probability  and

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likelihood  might  result  in  the  death  of  Shashi.   His participation  in the crime, therefore, did not take him  to the  extent of the sharing of the common intention to  cause his  murder.  As we have said above, Phanidhar and  Harendra undoubtedly shared such an intention as is apparent from the manner  of  assault by them on Shashi and the  severity  and force with which the blows were given on his bead by both of them  with the respective weapons in their hands.   Applying the  principle  of law under section 38 of the  Penal  Code, therefore,  the  case of Bhaba Nanda can be  separated  from that  of  the other two.  He can be held guilty  only  under section  304 Part II as he bad intentionally joined  in  the commission of ,an act with the knowledge that the assault on Shashi was likely to result in his death.  The facts of this case indicate that Bhaba Nanda 718 shared  the 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, Phanidhar  and  Harendra  developed and  shared  the  common intention of causing his murder. For  the  reasons  stated above, the  appeal  of  appellants Phanidhar  and Harendra is dismissed.  The appeal  of  Bhaba Nanda  is  partly allowed. His conviction  is  altered  from sections 302/34 to section 304 Part 11 read with section 34. The sentence of life imprisonment imposed on him is  altered to  rigorous imprisonment for 7 years only.  The  conviction of  all the appellants under sections 323/34 is  also  main- tained. M.R.                  Appeal allowed in part. 719