IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 192 OF 2008

DILSHAD @ BILLI ..... APPELLANT

VERSUS

STATE (NCT OF DELHI) ..... RESPONDENT

WITH CRIMINAL APPEAL NO. 193 of 2008

O R D E R

We  have  heard  the  learned  counsel  for  the  

parties at length.

The primary point urged by the learned counsel  

for the appellant is that on the facts of the case the  

common intention on the part of the accused could not  

be discerned and only Deen Mohammad who is said to have  

fired the fatal shot could have been sentenced for the  

murder.  The  learned  counsel  has  also  cited  several  

judgments in support of her case.   

Undoubtedly, there are certain observations in

the  cited  judgments  which  prima  facie  support the  

argument raised by the learned counsel  but it must be  

observed that in determining a case of common intention  

inter se several accused, the facts of the case have to  

be given primary importance.  In other words, no hard  

and fast rule can be laid down as a legal proposition  

with  respect  to  the  common  intention  which  may  be  

shared between the accused.

In the present matter, we find that Din Mohammad  

alone was armed with a pistol, Dilshad-appellant was  

armed with an iron rod and that  during the course of  

the robbery all the accused had tried to restrain P.W.  

2 – Rekha Vij, the wife of the deceased from attempting  

to save her husband and had subsequently removed her  

forcibly as she lay on top of him and he had then been  

shot on the chest.  It has also  come in evidence that  

in that process the appellants had also given her a  

beating and also hit her with a cricket wicket on her  

hand.  The learned counsel has, however, contended that  

as there was no medical evidence to show any injury on  

her person the story given by P.W. 2 with regard to the  

beating that she had received could not be believed. We

note that it is not her case that she had been given a  

beating that had caused any visible injury to her as  

she had deposed that she had been beaten up and then  

removed from atop her husband when she was trying to  

save him.  To our mind, therefore, the common intention  

is writ large on the peculiar facts of this case.

The appeals are thus dismissed.   

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [J.M. PANCHAL]

NEW DELHI SEPTEMBER 17, 2009.