BIRENDRA DAS & ANR.versusSTATE OF ASSAM

                    [2013] 7 S.C.R. 179


                 BIRENDRA DAS & ANR.                             A
                             v.
                    STATE OF ASSAM
            (Criminal Appeal No. 1130 of 2010)
                       JULY 1, 2013
                                                                 B
     [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.)

    PENAL CODE, 1860:

     s.302 read with s.34 - Murder - Common intention -          c
Conviction by courts below - Held: Appellants were not on
lookers -- Their intention is clearly reflectib/e from their
presence with weapons at the place of occurrence till the
commission of the crime and thereafter dragging the dead
body to the courtyard of one of the accused-appellant -- Thus,   0
it cannot be said that s.34 of /PC .is not attracted - In the
circumstances establishing of any motive is inconsequential
- Criminal law - Motive.
    Out of the nine accused named in the FIR, three were
declared absconders, three being juveniles, were referred        E
to juvenile court and the remaining three were
prosecuted for committing the murder of the father of PW-
1. The case of the prosecution was that all the nine
accused hacked the deceased with deadly weapons
causing his death. Thereafter they dragged his body to           F
the courtyard of accused-appellant no. 1 and severed his
limbs. When PW-2 tried to intervene, he was also attacked
which resulted into injury on the finger of his left hand.
The trial court convicted the two appellants u/s 302/34 IPC
and sentenced them to rigorous imprisonment for life. The        G
High Court affirmed their conviction and sentence.

   In the instant appeal it was contended for the
appellants that s.34 IPC was not attracted as no overt act
                             179                                 H
    180      SUPREME COURT REPORTS           [2013) 7 S.C.R.


A was attributed to' the appellants nor was there anything
  on record to show that they shared any common
  intention; and that the record did not show any motive
  for the alleged crime.

          Dismissing the appeal, the Court
B
         HELD: 1.1 Undisputedly, the death of the deceased
    was homicidal in nature as proved by the medical
    evidence. PW-1, the son of the deceased, has
    categorically stated about his father getting the blows
C   and falling down. He has mentioned the names of the
    appellants to be present there. It has come out in his
    testimony that when he tried to go near his father, they
    tried to attack him and out of fear he ran away and
    informed his paternal uncle (PW-2). In the cross-
D   examination, he has stood embedded in his version and
    the suggestion that he h_ad not seen the occurrence has
    been strongly denied. His testimony is corroborated by
    PW 5 and the injured eye-witness PW-2. The injury of PW-
    2 was proved by PW-4, the doctor who had medically
E   examined him. Similar is the evidence of other
    prosecution witnesses. Considering these aspects along
    with the factum that the dead body was seized from the
    courtyard of accused-appellant no. 1, it cannot be said
    that the eye-witnesses who have been cited as such are
F   really not eye-witnesses and they have been planted.
    [para 8-13] (186-A, B, F-H; 187-A-B, C, E-F]

       1.2 Though PW-1, son of the deceased, has stated
  that the appellants were present at the scene of
  occurrence, but that is not the only evidence against
G them. It is also seen in the evidence of others that the
  appellants were armed with weapons and dragged the
  dead body of the deceased to the courtyard of accused-
  a p pe Ila n t no. 1. Both the accused-appellants were
  charged for the substantive offence u/s 302 IPC in aid of
H s.34. The conditions precedent which are requisite to be
    BIRENDRA DAS & ANR. v. STATE OF ASSAM              181


satisfied to attract s.34 IPC are that the act must have      A
been done by more than one person· and the said
persons must have shared a common intention either by
omission or commission in effectuating the crime. A
separate act by each of the accused is not necessary. In
the case at hand, the appellants were not onlookers.          B
Their intention is clearly reflectible from their presence
with weapons at the place of occurrence till the
commission of the crime and thereafter dragging the
dead body to the courtyard of accused-appellant no. 1.
Thus, it cannot be said s.34 of IPC is not attracted. [para   c
17] [187-G-H; 188-A, B-D; 189-G; 190-A]

    Mohan Singh v. State of Punja 1962 Suppl. SCR 848 =
AIR 1963 SC 174; Lal/an Rai and Others v. State of Bihar
2002 (4) Suppl. SCR 188 = 2003 (1) SCC 268; Goudappa
and Others v. State of Karnataka (2013) 3 sec 675 - relied    D
on.

     Barendra Kumar Ghosh v. King Emperor AIR 1925 PC
1- relied on.
                                                              E
     2. On acceptation of the direct evidence on record on
proper scrutiny and analysis, proof of existence of motive
or strength of motive does not affect the prosecution
case. That apart, it is always to be borne in mind that
different motives may come into operation in the minds
of different persons and it would be well nigh impossible     F
for the prosecution to prove the motive behind every
criminal act. Therefore, when the appellants armed with
lethal weapons were present during the occurrence and
participated in dragging the deceased to the courtyard of
accused-appellant no. 1, establishing of any motive is        G
absolutely inconsequential. [para 21] [191-C-E]

    Bairam Singh and Another v. State of Punjab AIR 2003
SC 2213; Atley v. State of U.P. AIR 1955 SC 807; and State
                                                              H
     182       SUPREME COURT REPORTS                 [2013] 7 S.C.R.

A    of Uttar Pradesh v. Kishanpal and Others 2008 (11) SCR
     1048 = 2008 (1.6 ) sec 73 - relied on
                           Case Law Reference:
           1962 Suppl. SCR 848           relied on         para 14
B
           2002 (4) Suppl. SCR 188       relied on        .para 15
           AIR 1925 PC 1                 relied on         para 15
           c201 a) 3 sec 675             relied on         para 16
c          AIR 2003 SC 2213              relied on         para 18
           AIR 1955 SC 807               relied on         para 19
           2008 (11) SCR 1048            relied on         para 20

D        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No. 1130 of 2010.

       From the Judgment and Order dated 30.08.2007 of the
  High Court of Gauhati at Assam in Criminal Appeal No. 106
E of 2005.
           Kiran Bhardwaj (A.C.) for the Appellants.

         Vartika S. Walia (for Corporate Law Group) for the
     Respondent.
F          The Judgment of the Court was delivered by

       DIPAK MISRA, J. 1. The present appeal is directed
  against the judgment of conviction and order of sentence dated
  30.8.2007 passed in Criminal Appeal No. 106 of 2005 by the
G Gauhati High Court affirming the verdict of conviction of the
  learned Sessions Judge, Karimganj in Sessions Case No. 135
  of 2004 whereby the learned trial Judge had convicted the
  appellants under Section 302 in aid of Section 34 of the Indian
  Penal Code (for short "IPC") along with another and sentenced
H·
    BIRENDRA DAS & ANR. v. STATE OF ASSAM                     183
               [DIPAK MISRA, J.]
each of them to undergo rigorous imprisonment for life and to         A
pay a fine of Rs.5000/- each, in default to pay the fine, to suffer
further imprisonment for one year.

     2. The case related to the murder of a forty year old man
by the name of Matilal Das in the morning of 29.9.2003 by 8
hacking him at various parts of the body in a brutal manner with
deadly weapons and the injuries sustained by him were quite
serious in nature. On the date of occurrence, about 8.30 a.m.,
deceased Matilal Das was proceeding towards his home from
his shop and at that time, the accused persons, namely, Rajan C
Das, Sadhan Das, Madan Das, Birendra Das, Jara Das,
Bapan Das, Lakshmi Rani alias Latashi Rani and Smt. Jyotsna
Das, all being armed with deadly weapons like bhojali, dao, etc.
accosted him in front of the house of Birendra and immediately
Rajan Das dealt a blow on the head of Matilal from behind by
bhojali. After the assault, the deceased raised alarm and fell D
down on the road. Thereafter, all the .accused persons hacked
him as a result of which he sustained number of injuries and
breathed his last on the spot. Hearing the scream of Matilal,
Nripendra Das and Sanjan Das came to the spot and, at that
juncture, Sadhan Das tried to attack Sanjan Das, but he E
managed to flee away from the spot. However, he inflicted a
dao blow on Nripendra Das which caused an injury on the finger
 of his left hand. Tliereafter, accused Birendra and others
 dragged the dead body of Matilal to Birendra's courtyard and
 there they continued to hack the body resulting in severing of F
 certain limbs. Sanjan Das, son of the deceased Matilal, lodged
 an FIR with the Officer-in-Charge of Kaliganj Watch Post which
was entered vide G.D. Entry No. 424 dated 29.9.2003 about
 10.00 a.m. It was forwarded to the Officer-in-Charge, Karimganj
Police Station to register a case and, accordingly, case No. G
314/2003 was registered for the offences punishable under
Sections 147, 148, 149, 341, 324, 307 and 302 IPC. Afterthe
criminal law was set in motion, the Investigating Officer
conducted the inquest of the dead body of the deceased Matilal
and sent it for post mortem, seized the bhojali which was about H
    184      SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A 15 inch in length and a dao of 2 feet in length, both stained with
  blood, in the presence of the witnesses vide Exts. 4 and 6. The
  injured Nripendra Das was sent to Karimganj Hospital for
  examination of injuries and treatment. After recording the
  statements of the witnesses under Section 161 of the Code of
B Criminal Procedure (Cr.PC), a charge-sheet was placed
  against the accused persons and the said charge-sheet
  showed Sadhan Das, Jara Das and Jyotsna Rani as
  absconders. The learned Chief Judicial Magistrate, Karimganj
  committed the case to the Court of Session except that of
C accused Rajan Das, Madan Das and Bapan Das who were
  found to be juvenile on the basis of medical report and,
  accordingly, were sent to the juvenile court at Silcher. After
  committal, the learned Sessions Judge, considering the matter
  in entirety, framed charges against Birendra Das, Latasil Das
D and Jara Das under Section 302 read with 34 IPC.

         3. The accused persons pleaded innocence and false
    implication and claimed to be tried.

         4. At the trial, the Prosecution, in order to bring home the
E charge, examined 11 witnesses, namely, Sanjan Das, PW-1,
    son of the deceased Matilal, Nripendra Das, PW-2, a relation
    of the deceased, Dr. Rabindra Nath Das, PW-3, who
    conducted the autopsy on the dead body of the deceased, Dr.
    Pradip Dey, P.W-4, who examined PW-2, Namita Rani Das,
F PW-5, sister of the deceased, Samiran Das, PW-6, neighbour
    of the deceased, Gita Das, PW-7, a co-villager, Bibhash
    Bardhan, PW-8, a formal witness, Rinku Rani, PW-9 and Haren
    Ghosh, PW-10, who had seen part ofthf3 incident, and Prabhat
  ) Saikia, PW-11, the Investigating Officer. Apart from adducing
G oral evidence, the prosecution placed reliance on a large
    number of documents. The accused persons chose not to
    adduce any evidence.

       5. On consideration of the evidence on record, the learned
  Sessions Judge found that the accused-appellants therein were
H guilty and imposed the sentence. On appeal being preferred
     BIRENDRA DAS & ANR. v. STATE OF ASSAM                      185
                [DIPAK MISRA, J.]
 by two of the convicts, the High Court gave the stamp of               A
 approval to the conviction and the sentence as has been stated
 hereinbefore.
        6. In support of the appeal, Ms. Kiran Bhardwaj, learned
   counsel for the appellant, has submitted that the High Court has
                                                                        8
   faulted in accepting the evidence of the principal witnesses
   cited by the prosecution as eye-witnesses though they arrived
   at the spot after some length of time: It is urged by her that the
   appellate court has been swayed away by the emotion because
   of the brutality involved in the murder and hence, the approach
·. as ~equisite under the criminal law has been flawed and the          C
   result is unwarranted affirmation of conviction. It is her further
   submission that Section 34 IPC is in no way attracted inasmuch
   as no overt act has been attributed to the present appellants
   and there is nothing on record to show that they had shared
   any common intention. It is argued by her that though the            D
   prosecution has alleged commission of such a ghastly crime
   by the accused persons, yet remotely no motive has been
   indicated or even endeavoured to be traced and that shows
   that there has been spinning of allegations on some kind of
   suspicion or conjectures.                                            E

        7. Ms. Vartika S. Walia, learned counsel appearing for the
  State, in oppugnation, has contended that description of murder
  as brutal cannot be construed to be a pre-determined judicial
  mind because the learned trial Judge as well as the High Court
                                                                        F
  has analysed the evidence in a microscopic manner and found
  that the accused-appellants are guilty of the offence. The
  learned counsel would contend that carrying of weapons to the
  place of occurrence and the other activities which have been
  brought in the evidence against the appellants have clearly           G
  established the factum of common intention as envisaged
  under Section 34 of the Penal Code. The specious stand that
  no motive has been established by the prosecution is absolutely
  irrelevant and deserves rejection as there is ample direct
  evidence to show the commission of the crime by the accused-
  appellants.                                                           H
    186          SUPREME COURT REPORTS               [2013] 7 S.C.R.


A       8. Before we proceed to deal with the contentions
  canvassed at the Bar, it is imperative to state that there is no
  dispute that the death of the deceased Matilal Das was
  homicidal in nature. The doctor, who conducted the post
  mortem on the dead body of Matilal Das, had found the following
B injuries: -

          "(1)    Right foot completely severed from the leg.

          (2)     Right index finger is completely separated from the
                  hand. Other fingers are partially separated.
c
          (3)     Fracture right wrist joint. Lacerated injury over the
                  right wrist joint about 4" x 3" bone deep.

          (4)     Fracture of the right femur.

D         (5)     A sharp cut injury over the forehead extending
                  whole circumference of the head about 1" x Y:z" x
                  Y:z" just above the ear.
          (6)     Sharp cut injury over the left thigh upper part about
E                 3" x 1.5" x 1"."
         9. The said witness has opined that the death was due to
    shock and haemorrhage resulting from the injuries sustained
    by the deceased and all the injuries were ante mortem in nature.

F       10. Keeping in view the injuries sustained by the
  deceased, it is to be seen how the prosecution has established
  the complicity of the accused-appellants in the cr~me. PW-1,
  the son of the deceased, has categorically stated about his
  father getting the blow and falling down. He has mentioned the
G names of the appellants herein to be present there. It has come
  out in his testimony that when he tried to go near his father, they
  tried to attack him and out of fear he ran away and informed
  his paternal uncle Nripendra, PW-2. It is in his evidence that
  the dead body of his father was brought to the courtyard of
H Birendra. In the cross-examination, he has stood embedded in
   BIRENDRA DAS & ANR. v. STATE OF ASSAM                     187
              [DIPAK MISRA, J.]
his version and the suggestion that he had not seen the              A
occurrence has been strongly denied.

     11. PW-2 has deposed that he saw Sadhan, Madan and
Rajan assaulting the deceased and when he tried to intercept,
he was assaulted and sustained an injury on his finger. His injury   8
on the finger has been corroborated by Dr. Pradip Dey, PW-
4. He has also deposed that the deceased was bleeding
profusely and was dragged inside the courtyard of Birendra.

     12. PW-5, Namita Rani Das, has testified that Sadhan,
Madan, Rajan and Bapan were hacking the deceased Matilal             C
arid Birendra, Latani, Jyotsna and Jara were dragging the dead
body to the side of the fence. It has come out in her evidence
that the appellants were armed with deadly weapons. In the
cross-examination, certain suggestions have been given as
regards the existence of animosity between her husband and           D
Matilal Das on one side and Birendra on the other over some
Panchayat road. Though the said aspect has been accepted
by her, yet the same cannot be treated as a ground to discredit
her testimony which has remained absolutely unshaken. Similar
is the evidence of other prosecution witnesses.                      E

      13. Considering these aspects along with the factum that
the dead body was seized from the courtyard of Birendra, it is
difficult to accept the submission urged by the learne.d counsel
for the appellants that the eye-witnesses who have been cited
                                                                     F
as such are really not eye-witnesses and they have been
planted and, accordingly, we reject the same.

     14. The next limb of argument is that there has been no
allegation of any overt act against the present appellants and
their mere presence would not establish their complicity.            G
Learned counsel for the appellant has invited our attention to
the evidence of PW-1, son of the deceased, who has stated
that the present appellants were present at the scene of
occurrence. But that is not the only evidence against them. It is
also seen in the evidence of others which we have already dealt      H
    188       SUPREME COURT REPORTS                [2013) 7 S.C.R.


A with hereinabove that the appellants were armed with weapons
  and dragged the dead body of the deceased to the courtyard
  of Birendra. From the aforesaid, the question arises whether
  the common intention can be derived or not. What is really
  proponed by Ms. Bhardwaj is that the appellants had not
B inflicted any blow on the deceased. The aforesaid contention,
  needless to say, is totally without any substratum. Both the
  accused persons were charged for the substantive offence
  under Section 302 IPC in aid of Section 34 of the Penal Code.
  The conditions precedent which are requisite to be satisfied
c to attract Section 34 of the Penal Code are that the act must
  have been done by more than one person and the said
  persons must have shared a common intention either by
  omission or commission in effectuating the crime. A separate
  act by each of the accused is not necessary. The Constitution
  Bench in Mohan Singh v. State of Punjab 1, while adverting to
0
  the concept of Section 34 IPC, has ruled thus: -

          "Like Section 149, Section 34 also deals with cases of
          constructive criminal liability. It provides that where a
          criminal act is done by several persons in furtherance of
E         the common intention of all, each of such persons is liable
          for that act in the same manner as if it were done by him
          alone. The essential constituent of the vicarious criminal
          liability prescribed by Section 34 is the existence of
          common intention. If the common intention in question
F         animates the accused persons and if the said common
          intention leads to the commission of the criminal offence
          charged, each of the persons sharing the common intention
          fs constructively liable for the criminal act done by one of
          them. Just as the combination of persons sharing the
G         same common object is one of the features of an unlawful
          assembly, so the existence of a combination of persons
          sharing the same common intention is one of the features
          of Section 34."

H 1. AIR 1963 SC 174.
     BIRENDRA DAS & ANR. v. STATE OF ASSAM                    189
                [DIPAK MISRA, J.]
     15. In Lal/an Rai and Others v. State of Bihar2, relying upon    A
the dictum laid down in Barendra Kumar Ghosh v. King
Emperor and Mohan Singh (supra), it has been ruled that the
essence of Section 34 is simultaneous consensus of the mind
of persons participating in the criminal action to achieve a
particular result.                                                    B

      16. Recently, in Goudappa and Others v. State of
Karnataka 4 , the Court reiterated the principle stating that
Section 34 of the Penal Code lays down a principle of joint
liability in doing a criminal act and the essence of that liability   C
is to be found in the existence of common intention, animating
the accused leading to the doing of a criminal act in furtherance
of such intention. It has been further stated therein that the
principle inherent in Section 34 of the Penal Code is only a rule
of evidence, but does not create a substantive offence and,
therefore, if the act is the result of a common intention, then       D
every person would get the criminal act shared, and the
common intention would make him liable for the offence
committed irrespective of the role which he had in its
perpetration. Posing the question how to gather the common
intention, the Court opined that the conduct of the accused soon      E
before and after the occurrence, the determination and concern
with which the crime was committed, the weapon carried by the
accused and the nature of the injury caused by one or some of
them are relevant. Emphasis has also been laid on the totality
of the circumstances from which the common intention can be           F
gathered.

    17. In the case at hand, as has been indicated earlier, the
appellants were not onlookers as the submission seems to be.
Their intention is clearly reflectible from their presence with       G
weapons at the place of occurrence till the commission of the
crime and thereafter dragging the dead body to the courtyard
2.   (2003) 1 sec 268.
3.   AIR 1925 PC 1.
4.   c20130 3 sec 675                                                 H
    190        SUPREME COURT REPORTS                 [2013] 7 S.C.R.


A   of Birendra. Thus, in our considered opinion, the submission
    that Section 34 of IPC is not attracted is extremely specious
    and does not deserve acceptance.

       18. The last ground of attack on the sustainability of the
8 conviction is that the prosecution has not been able to prove
  any motive. The learned counsel would submit that when the
  animosity between some of the witnesses and the deceased
  has been admitted, there can be a ground for false implication.
  We have already analysed the evidence brought on record and
  there is nothing to discard the same. In Bairam Singh and
C Another v. State of Punjab 5 , it has been clearly stated that if
  the incident in question as projected by the prosecution is to
  be accepted, then the presence or absence of a motive or
  strength of the said motive by itself would not make the
  prosecution case weak.
D
         19. In this context, we may sit in a time machine and refer
    to few lines from Atley v. State of U.P. 6 wherein it has been
    expressed thus: -

          "This is true, and where there is clear proof of motive for
E
          the crime, that lends additional support to the finding of the
          court that the accused was guilty, but absence of clear
          proof of motive does not necessarily lead to the contrary
          conclusion."

F        20. In State of Uttar Pradesh v. Kishanpal and Others7,
    while dealing with the presence of motive, a two-Judge Bench
    had to say thus: -

          "39. The motive may be considered as a circumstance
          which is relevant for assessing the evidence but if the
G
          evidence is clear and unambiguous and the circumstances
          prove the guilt of the accused, the same is not weakened
    5.   AIR 2003 SC 2213.
    6.   AIR 1955 SC 807.
H   7.   (2008) 16 sec 73.
   BIRENDRA DAS & ANR. v. STATE OF ASSAM                          191
              [DIPAK MISRA, J.]
       even if the motive is not a very strong one. It is also settled   A
       law that the motive loses all its importance in a case where
       direct evidence of eyewitnesses is available, because even
       if there may be a very strong motive for the accused
       persons to commit a particular crime, they cannot be
       convicted if the evidence of eyewitnesses is not convincing.      B
       In the same way, even if there may not be an apparent
       motive but if the evidence of the eyewitnesses is clear and
       reliable, the absence or inadequacy of motive cannot stand
       in the way of conviction."

     21. Thus, acceptation of the direct evidence on record on           C
proper scrutiny and analysis of proof of existence of motive or
strength of motive does not affect the prosecution case. That
apart, it is always to be borne in mind that different motives may
come into operation in the minds of different persons, for human
nature has the potentiality to hide many things and that is the          D
realistic diversity of human nature and it would be well nigh
impossible for the prosecution to prove the motive behind every
criminal act. Therefore, when the appellants armed with lethal
weapons were present and witnessed the occurrence and
participated in dragging the deceased to the courtyard of                E
Birendra, establishment of any motive is absolutely
inconsequential.

    22. Consequently, the appeal, being devoid of merit,
stands dismissed.
                                                                         F
R.P.                                            Appeal dismissed.