GOPI NATH @ JHALLARversusSTATE OF U.P.

A                             GOP! NA TH @ JHALLAR
                                            v.
                                    STATE OF U.P.                                        .._
                                    JULY 31, 2001

B                  [M.B. SHAH AND DORAJSWAMY RAJU, JJ.]


           Penal Code, 1860 : Section 34.

          Common intention-Acts done by several persons in fartherance thereof-
C Joint responsibility of criminal acts-Performed by plurality of persons-
    Determination of-Principles-Held, The doing ofseparate, similar or diverse
    acts by several persons, in furtherance of common intention, render each of
    such persons liable for the result-The common intention can be proved either
    by direct evidence or by inference from acts or other circumstances.
D        The appellant was convicted by the trial court under Section 302 read
    with Section 34 of the Penal Code, 1860 and sentenced to undergo
    imprisonment for life. The High Court affirmed the conviction and sentence.
    Hence this appeal.

E           According to the prosecution, on the fateful day, the deceased was sitting
    on a cot in front of a shop and the accused exhorted to kill the deceased. When
    the deceased tried to run away the appellant and one of the accused attacked
    the deceased and he fell down. The third accused stood guard by the side of
    the two assailants shouting that if anybody dared to come, he too would be
    killed.
F
          On behalf of the appellant it was contended that since the appellant
    caused only a simple injury he could only be convicted under Section 324 IPC
    and, therefore, conviction under Section 302/34 IPC could not be sustained.

          Dismissing the appeal, the Court
G
           HELD : I. Section 34 of the Penal Code, 1860 lays down the rule of
    joint responsibility for criminal acts performed by plurality of persons who
    joined together in doing the criminal act, provided that such commission is
    in furtherance of the common intention of all of them. Even the doing of
    separate, similar or diverse acts by several persons, so long as they are done
H                                          72
                        GOPJNATHv. STATE[RAJU,J.]                             73
in furtherance of a common intention, renders each of such persons liable           A
for the result of all acts, as if he had done them himself, for the whole of the
criminal action - be it that it was not overt or was only covert act or merely
an omission constituting an illegal omission. Section 34, therefore, is attracted
even where the acts committed by the different confederates are different
when it is established in one way or the other that all of them participated        B
and engaged themselves in furtherance of the common intention which might
be of a pre-concerted or pre-arranged plan or one manifested or developed
at the spur of the moment in the course of the commission of the offence.
The common intention or the intention of the individual concerned in
furtherance of the common intention could be proved either from direct
evidence or by inference from the acts or attending circumstances of the case       C
and conduct of the parties. The ultimate decision, at any rate, would invariably
depend upon the inferences deducible from the circumstances of each case.
                                                                        177-C-F}

       2. The evidence on record established the conduct of the accused in
shouting in unison to do away with the deceased and the appellant along with        D
the other giving blow simultaneously in spite of the victim trying to run away
 from the place by surrounding him and the further evidence about the
exhortation made by the third accused exhibiting lathi that anybody who tries
to come to the rescue of the victim will also be done away with, are more
than sufficient in law to substantate the concerned move and the common             E
intention shared by all the accused to do away with the deceased.
Consequently, the application of the principles enshrined in Section 34 IPC
to the case on hand was fully justified and no exception could be legitimately
taken to the same. 178-A-DI

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                          F
1014 of 1~99.

     From the Judgment and Order dated 7.7.98 of the Allahabad High
Court in Crl. A. No .. 880 of 1980.

     Manoj Prasad for the Appellant.
                                                                                    G
     Praveen Swarup and Prashant Chaudhary for Pramod Swarup for the
Respondents.

     The Judgment of the Court was delivered by

     RAJU, J. This appeal filed against the judgment dated 7.7. I 998 of a          H
     74                       SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A Division Bench of the Allahabad High Court in Criminal Appeal No.880 of
     1980 by the second accused (Accused Nos. I and 3 having died during the
     pendency of the appeal in the High Court) relates to an occurrence on 9.1.1979
     at about 4 p.m. in Mashika village resulting in the death of one Ram Chandra.
     The learned Additional Sessions Judge found all the three accused guilty of
B    the charge against them punishable under Section 302 read with Section 34,
     !PC, and sentenced them to undergo i1'nprisonment for life. All the three
    accused pursued the matter before the High Court on appeal and, as noticed
    earlier, the appellants I and 3 before the High Court died during the pendency
    of the appeal and the appeal was heard and disposed of confirming the
    judgment of the learned Sessions Judge.
c         The case of the prosecution is that on 9.1.1979 at about 4 p.m. when
   the deceased Ram Chandra along with Ram Lalak (PW. I), Krishna Murari
   (PW.2) and Rajmani were sitting on a cot in front of the shop of one Chhotey
   Lal Bania situate in Village Mashika, all the three accused Jata Shanker, Gopi
   Nath (the appellant herein) and Shyam Shanker came there and Jata Shanker
D and Gopi Nath were armed with Farsas while Shyam Shanker was armed
   with Lathi. All the accused were said to have exhorted to kill the deceased
   and on hearing the exhortation of the accused, Ram Chandra tried to run
   away getting up from the cot on which he was sitting, but Jata Shanker and
   Gopi Nath attacked the deceased with the Farsas they held. On receiving the
   injuries, the deceased fell down and even thereafter Jata Shanker again
E assaulted the deceased with the Farsas on the right parietal region. Shyam
   Shanker, the other accused, was said to have remained standing on guard by
  the side of the two assailants shouting that if anybody dare to come, he too
  shall be killed. PW.1, PW.2 and Raj Narayan were said to have raised an
  alarm and attracted other persons and at that stage all the three accused
p persons ran away. Krishna Murari (PW.2), Ram Sanjivan, Mishri Lal and Raj
  Narayan were said to have taken the injured to Swaroop Rani Nehru Hospital,
  Allahabad, where he was stated to have been examined by Dr. R.P. Singh
  (PW.4) at 6.30 p.m. when the following injuries were found on the person of
  the deceased :-
G          I.   Incised wound on the right side of face 6" x 1" bone deep
                extending from lobule of right ear to mid of chin, fresh bleeding
                present.
           2.   Incised wound on the right parietal region 2" x Yz" bone deep 5"
                above the right ear fresh bleeding present.
H          3.   Incised wound on the right side of neck I" x Yz" muscle deep,
                        GOPINATHv. STATE [RAJU, .i.]                          75
             fresh bleeding present 5 x \12" below the right ear.                   A
      The victim was unconscious and· though was kept under observation,
died at about 6.55 p.m. in the Hospital.

        A written report (Ex. Ka. I) relating to the incident was lodged by PW. I
 at Police Station, Naini, District Allahabad, on 9.1.1979 at about 5.30 p.m.,      B
 on the basis of which Crime Case No.15 under Section 307, !PC, was registered
 and investigation commenced. PW.6, the Sub-Inspector then on duty, took up
  the investigation and recorded the statement of Ram Lalak at the Police
  Station itself, then rushed to the scene of occurrence and on inspection of the
  place and on the information given by the complainant, recovered blood
 stained and simple earth as also blood stained bag (Ex. 7 to 9) from the scene     C
 of occurrence. The site plan (Ex. Ka-7) was said to have been prepared and
 statements of other witnesses were said to have been recorded till 11 p.m. On
 the next day, on receipt of the information about the death of Ram Chandra,
 1.0. went to the Hospital and after inspecting the dead body prepared an
 Inquest Report and thereafter sent the dead body with a Constable for post-        D
 mortem examination. After completing the investigation, the charge-sheet
 against all the three accused was filed under Section 302 read with Section
 34, !PC, for committing the murder of the deceased Ram Chandra on 9.1.1979.
 The further case of the prosecution, the relevant materials relating to which
 have been brought on record also is that earlier on 1.11.1978 one Triveni
 Prasad Tiwari of the same village was murdered in which Mis Shishmani,             E
 Ram Sanjiwan and Jeevan Lal were arrayed as accused persons for the said
 murder, out of which Shishmani is said to be a nephew of Ram Chandra, the
deceased in this case, and Ram Sanjiwan and Jeevan Lal were cousin brothers
of the deceased. Therefore, Ram Chandra was doing Pairavi in the earlier
 murder case on behalf of the three accused therein and also was said to have
                                                                                    F
 filed an affidavit in connection with the bail application for the accused in
that case. Similarly, Triveni Prasad, the person murdered in the other case,
was said to be the younger brother of Shyam Shanker, the third accused in
this case. Further, one Smt. Rajpati Devi, the aunt of Shishmani, was said to
have lodged an FIR on 11.12. I 978 against the first accused Jata Shanker in
this case and the present appellant, alleging that Jata Shanker, Gopi Nath and      G
Kesheo, son of Jata Shanker, had set fire to her house and in that complaint,
the deceased Ram Chandra was cited as a prosecution witness and, therefore,
the accused in this case bore enmity with the deceased.

     The prosecution supported its case by examining PWs.1 to 9 of which
PW.1, Ram Lalak, and PW.2, Krishna Murari, were ocular witnesses for the            H
                                                                                        \



      76                        SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

 A occurrence. PW.3, Dr. R.V. Singh, Medical Officer ofMotilal Nehru Hospital,
      Allahabad, who conducted the autopsy on the dead body of the deceased,
      was also examined. Documentary evidence and material objects were also
      marked. No evidence was let in on the side of the defence, but the accused
     denied the charges necessitating the trial. On a consideration of the materials
     placed on record, the learned Trial Judge arrived at the finding that the
 B   evidence let in by the prosecution proved beyond reasonable doubt that all
     the three accused came with the common intention to kill Ram Chandra and,
     therefore, each of them cannot be held liable for their individual acts and that
     the prosecution has succeeded in proving that the accused are guilty of the
     murder of Ram Chandra. Consequently, they were convicted under Section
 C   302, !PC, read with Section 34, !PC, and sentenced to undergo imprisonment
     for life.

             Aggrieved, all the three accused pursued the matter on appeal before
     the High Court and as pointed out earlier, the High Court, while rejecting the
     claim of the accused that they were falsely implicated in the case, though
D    innocent and that in any event the appellant can be convicted, if at all, only
     under Section 324, !PC, because he merely causep a simple injury, confirmed
     the findings of the Sessions Court and their conviction and sentence imposed.
     Hence, this appeal.

          Heard the learned counsel for the appellant and the respondent-State.
E The learned counsel for the appellant, while reiterating the stand taken before
   the courts below, contended that except the interested witnesses like those
   examined the prosecution failed to examine not only any independent witnesses
   from the public in the area since the occurrence was during day time but also
   committed a serious lapse in not examining the owner of the shop Chhotey
F Lal Bania in front of whose shop the occurrence was said to have taken place
  and this seriously undermines the credibility of the prosecution case. Grievance
  has also been made about the non-marking of the place from where the blood
  soiled earth was taken, in the site plan prepared pertaining to the place of
  occurrence, to claim that the said lapse cast a serious doubt about the very
                                                                                            -
  place of occurrence and the case of the prosecution thereby stood rendered
G highly improbable. Finally, it was also contended that, if at all, the appellant
  could only be held liable for causing injuries punishable under Section 324,
  !PC, and that the conviction under Section 302/34, !PC, cannot at all be
  sustained. The learned counsel for the State adopted the reasoning contained
  in the judgments of the courts below and contended that the findings recorded
H are well-merited and the concurrent findings rendered on proper appreciation
                        GOP! NATH v. STATE [RA.JU, .L]                       77
of the evidence do not call for any interference. Both the learned counsel A
invited at length our attention to the relevant portions of the judgments to
substantiate their respective stand.

       We have carefully considered the submissions of the learned counsel
on either side. As for the challenge made to the conviction under Section 302
read with Section 34 IPC, it is necessary to advert to the salient principles to B
be kept into consideration and often reiterated by this Court, in the matter of
 invoking the aid of Section 34 IPC, before dealing with the factual aspect of
the claim made on behalf of the appellant. Section 34 IPC has been held to
 lay down the rule of joint responsibility for criminal acts perfonned by plurality
of persons who joined together in doing the criminal act, provided that such C
commission is in furtherance of the common intention of all of them. Even
the doing of separate, similar or diverse acts by several persons, so long as
they are done in furtherance of a common intention, render each of such
persons liable for the result of them all, as if he had done them himself, for
the whole of the criminal action - be it that it was not overt or was only
covert act or merely an omission constituting an illegal omission. The Section, D
therefore, has been held to be attracted even where the acts committed by the
different confederates are different when it is established in one way or the
other that all of them participated and engaged themselves in furtherance of
the common intention which might be of a pre-concerted or pre-arranged
plan or one manifested or developed at the spur of the moment in the course E
of the commission of the offence. The common intention or the intention of
the individual concerned in fmtherance of the common intention could be·
proved either from direct evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. The ultimate decision,
at any rate, would invariably depend upon the inferences deducible from the
circumstances of each case.                                                         F
       So far as the facts of the case on hand are concerned, in our view the
Courts below could not be in any manner faulted with, for arriving at the
conclusion to indict all the accused applying the principles engrafted in Section
34, IPC, to punish them under Section 302, IPC. That Ram Prasad was
actively assisting the accused in the case involving the murder of Triveni G
Prasad and that in another police complaint against the accused, Ram Prasad
was cited as a witness for the occurrence, though a report has been filed on
it, has annoyed the accused in this case on account of their relationship with
Triveni Prasad as well as his preparedness to be a witness in the case of
alleged house burning against the accused, sufficiently establish the motive H
     78                       SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A and common intention of the accused to do away with Ram Prasad. The
   appellant and Jata Shanker were also armed with Farsa and Shyam Shanker
   was armed with a lethal weapon like lathi. The evidence on record established
   their conduct in shouting in unison to do away with Ram Prasad and the
  appellant along with the other giving a blow simultaneously with Farsa, in
B spite of the victim trying to run away from the place by surrounding him and
  the further evidence about the exhortation said to have been made by Shyam
  Shankar exhibiting lathi that anybody who tries to come to the rescue of the
  victim will also be done away with, are more than sufficient in law to
  substantiate the concerted move and the common intention shared by all the
  accused to do away with Ram Prasad. One of the blows was not only fatal
C and considered on the basis of medical evidence to be sufficient in the normal
  course to cause death, but the simultaneous attack with Farsa by the appellant
  and Jata Shankar have been held sufficient to constitute the required overt
  acts in furtherance of the common intention shared by all of them to put an
  end to the victim. Consequently, the application of the principles enshrined
  in Section 34, !PC, to the case on hand was fully justified and no exception
D could be legitimately taken to the same, on the peculiar facts of this case, to
  which due reference extensively had been made by both the courts below.
  The conviction under Section 302/34, !PC, is, therefore, well-merited, calling
  for no interference in this appeal.

E        The grievance about the non-examination of any independent witness
  from public or the shop owner in front of whose shop the occurrence has
  taken place, has been specifically dealt with and, in our view, the reasons
  given therefor in the judgment under challenge cannot be said to be erroneous.
  The fact that the accused formed a definite and desperate warring group of
  criminals and for quite sometime there had been open hostilities exhibited
F involving criminal a~tions would normally deter anyone from the public
  extending their service or co-operation to be a witness against them. Apart
  from this aspect of the matter, when the Investigation Officer (PW.6) was in
  the box nothing appears to have been said or even suggested to him about
  the non-examination of the owner of the shop. As for the lapse in not
G specifically marking in the site plan of occurrence about the actual place of
  recovery of soiled earth, the courts below did not consider it to be· such a
  grave infirmity in the teeth of specific mention about the same in the case
  diary and the specific evidence of PW-5 considered otherwise sufficient to
  prove this fact. We see nothing wrong or illegal in the said reasoning of the
  courts below. The evidence of PWs. I & 2, inspired confidence with the
H courts below, despite the fact that they are persons belonging to the group of
                      GOPINATHv. STATE[RAJU,J.]                          79
Ram Prasad and nothing concrete or substantial has been shown to us from       A
the materials on record to castigate their version or condemn their evidence
and take a different view from the one concurrently held by both the courts
below.

     For all the reasons stated above, we find absolutely no merits in the
above appeal. The same fails and shall stand dismissed.                        B
v.s.s.                                                   Appeal dismissed.