REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 553-554 OF 2001

Rangnath Sharma            …. Appellant versus

Satendra Sharma & Ors.                                                …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. These appeals, which are filed by the complainant, are against an order

of  acquittal  passed  by  the  Patna  High  Court  on  9th August,  2000,

whereby the Division Bench acquitted the respondents  while allowing

the appeals  filed by them questioning the judgment of conviction and

sentence  passed  by  Additional  Sessions  Judge  II,  Gaya  on  22nd

December, 1997 in Sessions Tr. Nos. 177/1995 and 134/1995.  

2. Satendra Sharma, respondent No. 1 in Crl. Appeal 553/2001 was tried

for  offences  punishable  under  Section  364,  Section  302  read  with

Section  34  of  the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  and

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Section 27 of the Arms Act, 1959 while Pankaj Sharma and Ramakant

Sharma, respondent Nos. 1 and 2 respectively in Crl. Appeal 554/2001

were tried for offences punishable under Section 364, Section 302 read

with Section 34 IPC for murder of one Ajay Sharma (hereinafter referred

to as the ‘deceased’). The trial court found that all the three respondents

are guilty and sentenced them to undergo rigorous imprisonment for ten

years for offence under Section 364 IPC and rigorous imprisonment for

life for offence under Section 302 read with Section 34 IPC. Satendra

Sharma was further sentenced to undergo rigorous imprisonment for five

years  for  offence  punishable  under  Section  27  Arms  Act.  All  the

sentences were to run concurrently.

3. The prosecution case as unfolded during the trial is as follows:

On 24.09.1994 at about 5.00 p.m., the deceased who was the nephew

of Rangnath Sharma (PW-7), the informant, was sitting at the door of his

house in village Bhori, Police Station Tekari, Distt. Gaya. At that time the

three respondents  herein who belong to the  same village came there and

took the deceased with them.  It is alleged that Rangnath Sharma tried to

prevent  his deceased nephew from going along with  the respondents  but

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Satendra  Sharma,  took  the  deceased  along  with  him  telling  Rangnath

Sharma that the deceased would return soon, whereupon the deceased went

with the aforesaid three persons.  It is also alleged that the deceased was

taken by the three persons towards the northern side of the village.

 It further appears to be the case of the prosecution that the informant

along with Sidhnath Sharma (PW-5) also went towards his cabin situated on

the northern side of the village for attending call of nature and giving the

round around his field and that when they proceeded about 150 yards on the

western side of the cabin they saw Satendra Sharma, Pankaj Sharma and

Ramakant Sharma, grappling and exchanging hot words with the deceased.

Thereafter, Satendra Sharma took out pistol from his waist and fired it on

the chest of the deceased as a result of which the deceased fell down. Upon

this  Rangnath  Sharma  along  with  Sidhnath  Sharma  while  raising  hulla

proceeded towards the place of occurrence.  The accused persons threatened

Rangnath Sharma and Sidhnath Sharma that if they proceed any further they

would  be  shot  dead  and  so  saying  the  accused-respondents  ran  away

towards  the  western  side.   In  the  meanwhile,  some  villagers  who  were

playing football in the field also came there and saw the accused persons

committing the alleged occurrence.   

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The  informant  also  stated  that  the  main  reason  for  the  alleged

occurrence was the fact that about four days prior to the date of occurrence a

quarrel  had  taken  place  regarding  irrigation  of  the  land  with  Satendra

Sharma and his father which at that time was settled by the interference of

the villagers but it is due to the said grudge that the accused persons killed

the deceased on 24.09.1994.  The informant stated that immediately after

the said occurrence he went to Tekari Police Station where his statement

was recorded.  On the basis of the said statement First Information Report

was  drawn  up  and  in  the  same  night  the  police  visited  the  place  of

occurrence, prepared the inquest report of the deceased and thereafter sent

the dead body of the deceased for post mortem examination.

 After completing of the investigation, the police submitted charge

sheet against the three respondents for the offences under Sections 364 and

302 read with Section 34 IPC and an additional charge under Section 27 of

the Arms Act was leveled against Satendra Sharma as he was in possession

of a Pistol.  After filing of the charge-sheet, charges were drawn up against

the  accused  persons  who  pleaded  not  guilty  for  the  said  charges.

Consequently,  trial  was  held,  during  the  course  of  which  prosecution

examined  ten  witnesses  in  support  of  their  case.   According  to  the

prosecution,  PWs  4  (Sahjanand  Sharma),  5  (Sidhnath  Sharma)  and  6

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(Kaushal Kishore Sharma) are eye witnesses.  PW 7 – Rangnath Sharma is

the informant and also an eye witness.  On completion of the trial, on the

basis of the evidence recorded, the trial court found the accused guilty under

the  above-mentioned  charges  and  convicted  and  sentenced  them  as

indicated hereinabove.   

Aggrieved  by  the  said  judgment  and  order  of  the  Trial  Court  the

respondents preferred appeals before the High Court.  The said appeals were

allowed by the Division Bench of the High Court against which the present

appeals are filed by the complainant.  In the present appeals the order of

acquittal has been challenged.  The appeals were listed before us for final

hearing on which we heard learned counsel appearing for the parties.

4. Mr. Gaurav Agrawal, learned counsel appearing for the appellant drew

our attention to the depositions of the witnesses and took us through the

entire evidence on record.  He submitted before us that the depositions of

the eye-witnesses have not been believed and acted upon by the High

Court and that the High Court acted illegally in setting aside the order of

conviction passed by the Trial Court.  It was also submitted that the High

Court was not justified in holding that the identity of the respondents as

killers of the deceased could not have been established in view of the

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fact that the place of occurrence was not visible from the place where

Ranganath Sharma, PW7 was allegedly standing.   The learned counsel

also  submitted  that  the  Division  Bench  of  the  High  Court  erred  in

holding  that  it  was  not  possible  for  PWs  4  to  7  to  see  the  actual

occurrence because of the distance where they were allegedly standing at

the time of occurrence, particularly, in view of the fact that there were

number  of  bushes,  plants  and cultivation  standing  on the  field  which

would have definitely hampered their view.  Mr. Nagendra Rai, learned

senior  counsel  appearing for the respondents,  however,  submitted that

the judgment of the Division Bench of the High Court is justified, legal

and valid in the eyes of law as the findings recorded by the High Court

have been arrived at after due appreciation of the record.

5. In the light of the aforesaid submissions and the evidence on record, we

proceed to appreciate the evidence and also examine the reasons given

by the High Court in acquitting the accused persons.  While passing the

order of acquittal, the High Court has held that the place of occurrence

was at a considerable distance from the cabin of the informant and also

from the playground, and therefore, neither it was possible for PWs 4, 5,

6  and  7  to  hear  the  quarrel  nor  it  was  possible  for  them to  see  the

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occurrence from the place where they were stationed. The High Court

also  justified  the  order  of  acquittal  on  the  ground  that  there  was

considerable  delay  in  recording  the  first  information  report,  and

therefore, the case of the prosecution becomes tainted.  It was also held

by the High Court  that  the presence of  alcohol in  the stomach of the

deceased coupled with ante mortem injuries on his penis create a doubt

in the prosecution case and that the occurrence had taken place in some

other manner and not in the manner disclosed by the prosecution.

6. The prosecution has led evidence through the aforesaid eye-witnesses,

namely, PWs 4 to 7, which is sought to be supported by the evidence of

PWs 1 to 3.  Rangnath Sharma (PW-7) has stated in his deposition that

the  three  accused,  came  to  his  house  and  asked  the  deceased  to

accompany them.  It is also stated by him that he prevented the deceased

for going with them but Satendra Sharma told that the deceased would

return  soon.   The  aforesaid  version  of  the  informant  was  not  at  all

challenged by the defense by putting any direct question or otherwise in

the  cross  examination.  The only stand  taken by defense  was  that  the

occurrence did not take place in the manner it is alleged.  There is no

other evidence available on record from which even a doubt with respect

to correctness of the said statement could be created.   

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7. Soon  thereafter  when  Rangnath  Sharma along  with  Sidhnath  Sharma

went  to  inspect  his  fields,  he  saw  that  two  of  the  accused  persons,

namely,  Pankaj  Sharma  and  Ramakant  Sharma,  were  holding  the

deceased and were grappling with him.  Having seen the said situation,

Rangnath  Sharma immediately  learnt  that  some overt  act  is  going  to

happen and he raised hulla.  Immediately thereafter, he saw that Satendra

Sharma took  pistol  from his  waist  and  fired  at  the  deceased  and  on

receiving the bullet  injury, the deceased fell down on the ground. The

said  version  of  Rangnath  Sharma has  been  corroborated  by Sidhanth

Sharma in totality. The defense has challenged the aforesaid part of the

statement of Rangnath Sharma on the  ground that the said incident as

alleged could not have been seen by the informant as he was standing at

a distance and there was obstruction by bushes, plants and crops standing

in the field.  The aforesaid defense found favour with the High Court.

On going through the record, we find that the place of occurrence was a

terrace meaning thereby that  it  was a little  bit  high land.   As per  the

statement  of     Anil  Prasad  Singh  (PW 9),  the  officer  in-charge,  the

height of the terrace was about two feet.  From the evidence it is clearly

proved and established that the place where the appellant had reached at

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the time of occurrence was not very far from the place of occurrence.

Therefore, it could not have been said that the said place was not visible

and  accordingly  the  High  Court  was  not  justified  in  arriving  at  the

conclusion that the said place where the occurrence took place could not

have been visible from the place where the informant was stationed at

the time of occurrence.  PW-7 as also the other witnesses have vividly

described the manner in which the occurrence had taken place. All the

said witnesses were examined at length during the trial by defense but on

perusal of the same no contradiction was found.

8. Even  otherwise  if  a  person  is  well  known  to  the  other,  then  the

probability of identification of said person even from a far away place is

much higher. In the case of    State of A.P. v. Dr M.V. Ramana Reddy,

[(1991) 4 SCC 536] it was held by this Court that where the identity of

the  accused  is  well  known  to  the  eye-witness  the  same  could  be

recognised even in the faint light.  

9. The action of the eye witnesses is corroborated by the medical evidence.

The  doctor,  PW-8  (Dr.  Kapildeo  Prasad),  conducted  the  post  mortem

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examination and the injuries of the following nature were found on the

body of the deceased:

“(1) Perforating wound of  the size  ¼ inch in  diameter  was found  over  right  nipple.   The  margins  of  the  wound  were irregular  and  inverted.   The  wound  was  directed  posteriorly towards  left  side  and  was  communicating  with  an  opening situated at the middle of the left scapular region.  The margins of the opening were irregular and averted.  On dissection right and left  lungs  were found perforated.   The left  scapula bone was found broken with the hole at its middle portion.  Blood and clots were found in the thoracic cavity and over the wound.

(II)   Abrasion  of  size  ½”  x  ¼”  was  found  over  the  lower portion of the anterior surface of the penis”.  

So far as the first injury is concerned it is clear that the same was because of

gun shot, which was established from the medical evidence on record.  So

far as the second injury is concerned, the defense tried to establish that the

said injury could not have been received by the deceased during the incident

and in the manner as stated by the prosecution and also that the doctor who

conducted the post mortem examination has stated in his report that alcohol

was found in the stomach of the deceased meaning thereby that the deceased

was  intoxicated  at  the  time of  his  death.   That,  however,  in  no  manner

shakes the prosecution case nor any doubt could be created, for a person

could otherwise consume alcohol during the course of the day.  So far as the

second injury is concerned, it is true that the doctor has found abrasion over

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lower portion of the interior surface of the penis.  Such an injury could have

been received by the deceased during the scuffle and grappling, which had

taken place before the firing of the pistol.  But the fact remains that main

injury received by the deceased which was the cause of death, was received

by the gun shot injury received from the pistol, fired by Satendra Sharma.

10.One of the contentions which was raised by the defense was that the the

prosecution  story  cannot  and  should  not  be  believed  as  there  was

considerable  delay in filling the F.I.R.,  which creates  doubt  about  the

credibility  of  the  Report.  As  per  prosecution  the  incident  took  place

between 5:30 – 6.00 P.M. and the informant along with two others left

for the Police Station, on foot, at about 6:30 P.M., which is near about 4

miles away from the place of occurrence and reached there at about 8:30

P.M.   As the report was not accepted immediately he had to wait. Thus

the  time  period  between  the  incident  and  filling  of  F.I.R  was

satisfactorily explained.

11.The aforesaid evidence clearly proves and establishes that PWs 4 to 7

were near the place of occurrence at the time of alleged occurrence and

that  they had seen  the accused Pankaj  Sharma and Ramakant  Sharma

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holding the deceased and Satendra Sharma firing at the deceased. PWs 1

to 3 have also categorically stated that they heard the sound of firearm

and they immediately  rushed  to  the  place  of  occurrence  and  saw the

aforesaid  three  accused  persons  fleeing  towards  the  western  side.

Although there is evidence to show that the place of occurrence was at a

distance  from the  cabin  of  the  informant  and crops  had intervened in

between the playground and the place of occurrence but it has not come

on  evidence  that  because  of  the  high  crops  of  jinora  and  maize,  eye

witnesses could not have seen the occurrence which had taken place at a

terrace, which was comparatively raised land.  None of  them could be

said to be a chance witness and on reading the evidence we find that they

were natural witnesses who had seen the occurrence, heard the sound of

firearm and saw the accused- respondents fleeing away from the place of

occurrence. All the aforesaid evidence confirm the fact that the deceased

was  taken away from his  house  before  the  alleged  occurrence  by the

accused persons and has been shot dead by Satendra Sharma.

12.The next question which arises for our consideration is whether Pankaj

Sharma and Ramakant Sharma can be held to be jointly liable for the

above-mentioned  offences.  Section  34  IPC  has  been  enacted  on  the

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principle of joint liability in the doing of a criminal act. The section is

only a rule of evidence and does not create a substantive offence. The

distinctive feature of the section is the element of participation in action.

The liability of one person for an offence committed by another in the

course of criminal act perpetrated by several persons arises under Section

34 if such criminal act is done in furtherance of a common intention of

the persons who join in committing the crime. Direct proof of common

intention is seldom available and, therefore, such intention can only be

inferred from the circumstances appearing from the proved facts of the

case and the proved circumstances. In order to bring home the charge of

common intention, the prosecution has to establish by evidence, whether

direct or circumstantial, that there was plan or meeting of minds of all

the accused persons to commit the offence for which they are charged

with  the  aid  of  Section  34,  be  it  pre-arranged  or  on  the  spur  of  the

moment; but it must necessarily be before the commission of the crime.

The  true  concept  of  the  section  is  that  if  two  or  more  persons

intentionally do an act jointly, the position in law is just the same as if

each  of  them has  done it  individually  by himself.  The existence of  a

common intention  amongst  the participants  in a crime is  the essential

element for application of this section. It is not necessary that the acts of

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the several persons charged with commission of an offence jointly must

be the same or identically similar. The acts may be different in character,

but  must  have  been actuated  by one and the  same common intention

pervading amongst all accused in order to attract the provision. Section

34  is  applicable  even  if  no  injury  has  been  caused  by  the  particular

accused himself.  For applying  Section  34 it  is  not  necessary to  show

some specific overt act on the part of the accused, when it is shown that

there was common intention and meeting of mind.

13.In  Ram Tahal v. State of U.P., [(1972) 1 SCC 136], it has been laid

down as under:-

“5……………….There  is  no  doubt  that  a  common intention should  be  anterior  in  time  to  the  commission  of  the  crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual it has  to  be  inferred  from the act  or  conduct  or  other  relevant circumstances of the case. This inference can be gathered by the  manner  in  which  the  accused  arrived  on  the  scene  and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assist those causing the injuries the  concerted  conduct  subsequent  to  the  commission  of  the offence for instance that all of them had left the scene of the incident  together and other acts which all  or some may have done as would help in determining the common intention.  In other  words,  the  totality  of  the  circumstances  must  be taken into  consideration  in  arriving  at  the  conclusion  whether  the accused had a common intention  to  commit an  offence with which  they  could  be  convicted.  This  Court  had  in  Krishna Govind Patil’s case already referred to earlier, held that the pre- arranged plan may develop on the spot during the course of the

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commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a court convict a person under Section 302 or 304,  read  with  34  of  IPC,  it  should  come  to  a  definite conclusion that the said person had a prior concert with one or more persons named or un-named for committing the offence.

We may also make a reference to a decision of this Court in Ramesh Singh

v. State of A.P., [(2004) 11 SCC 305], wherein it has been observed thus:  

“12……………As  a  general  principle  in  a  case  of  criminal liability  it  is  the  primary  responsibility  of  the  person  who actually  commits  the  offence  and  only  that  person  who  has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint  liability  in  doing  a  criminal  act.  The  essence  of  that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with  that  common  intention  would  be  responsible  for  the offence committed irrespective of the share which he had in its perpetration.  Section  34  IPC embodies  the  principle  of  joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult  to  procure  direct  evidence  to  prove  such  intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case.  The  inference  can  be  gathered  from the  manner  in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for  the  injury  can  further  be  inferred  from  the  subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common

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intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696 ).”

So far as Pankaj Sharma and Ramakant Sharma are concerned they were

also instrumental in bringing the deceased from his house in the company of

Satendra Sharma to the place of occurrence with the common intention.   As

per the F.I.R and in their depositions during trial PWs 4, 6 and 7 specifically

mentioned that they saw the said two accused holding the deceased which

made  it  possible  for  Satendra  Sharma  to  fire  gun  shot  injury  on  the

deceased.  In Israr     v. State of U.P  ., [(2005) 9 SCC 616], wherein one of us

(Dr. Arijit  Pasayat)  was the member,  it  was held that  a person who was

holding  the  deceased  and  restraining  his  movements,  enabling  the  co-

accused to inflict  the knife-blows causing the  death of  the deceased was

rightly convicted under Section 302 with the aid of S. 34 IPC. Having thus

independently considered the facts and circumstances in their totality and

taking holistic view of the facts of this case, we are of the opinion that the

prosecution has been able to establish that  Pankaj Sharma and Ramakant

Sharma  shared  a  common  intention  with  accused  Satendra  Sharma  and

therefore, by virtue of section 34 IPC they are liable for the same offence.

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14.In  the  background  of  what  has  been  stated  above,  we  set  aside  the

judgment  of  the  Division  Bench  of  the  High  Court  and  restore  the

judgment of the Trial Court.  The accused-respondents shall surrender to

custody to serve out the remaining sentence, failing which appropriate

steps be taken for their arrest.  There bail bonds stand cancelled.

15.The appeals are, therefore, allowed.  

…… ……………………..J.

                                                                           (Arijit Pasayat)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi, August 20, 2008

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