KRISHNAN AND ANR.versusSTATE OF KERALA

                          KRISHNAN AND ANR.                                        A
                                      v.
                           STATE OF KERALA

                           SEPTEMBER 2, 1996

                 [G.N. RAY AND B.L. HANSARIA, JJ.]                                 B

       Criminal Law ·:

       Penal Code, 186(}-Sections 34 and 302/34.

        Common intention-Proof of-Held: establishment of an overt act not
                                                                                   c
  essential-Prosecution required to establish that all concerned persons shared
..the common intention-In the circ~nstances of the case, even assuming that
  accused caused no injury it would be permissible to infer that he shared the
  common intention with co-accused in causing death.
                                                                                   D
       Criminal Trial :

      Identification-Known person-From close distance--In open field on
cloudless stany night-Held : there was no difficulty in such identification.

      Tim_e of death-1ncident took place at night-Eye-witness was with             E
deceased throughout-Deceased did not take food in his presence-Held.:
presence of a few rice particles in the stomach of deceased did not raise any
doubt about time of incident and also presence of that eye-witness.

      Bloodstains-Absence of-On Knife used by accused--lnjury caused by
accused not on vital part of body but only superficial injury on f orehead--Sub-   F
sequently knife wai thrown in field-Held : It was not unlikely that
bloodstains on knife wiped off when it was thrown in the field.

     The appellants were convicted under Section 302 read with Section
34 of the Indian Penal Code, 1860 and sentenced to undergo rigorous                G
imprisonment for life.

      The deceased was the younger brother of accused No. 1 and accused
No. 2 was the sister's son of both the deceased and the said accused No. 1
The prosecution case was that on account of enmity arising out of property
dispute, both the accused with a common intention to kill the deceased H
                                     405
    406                  SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A were waiting for him under a tree at night on the fateful day. When the
    deceased accompanied by his nephew, P.W.1, reached the place of incident
    both the accused jumped out in front of the deceased saying that they had
    been waiting for the deceased. Thereafter, accused No. 2 inflicted stab
    injury on the forehead of the deceased with a knife. When P.W. 1 caught
    hold of accused No.1 in preventing his further attempt to give stab injury
B   on the deceased and made him to put down his knife on the ground, the
    first accused proceeded towards the deceased who was trying to escape and
    gave successive dagger blows and thereafter ran towards the paddy field
    cutting across the road. When P.W. 1 let loose the grip of the second.
    accused and proceeded to rescue the deceased, the second accused also ran
C   away after throwing away the said knife near the place of incident.

         The trial court did not accept that the prosecution case was proved
    beyond reasonable doubt and therefore acquitted both the accused. The
    High Court set aside the order of acquittal passed in favour of the accused.
D   Being aggrieved the appellants-accused preferred the present appeal.

         On behalf of the appellants it was contended ~hat the presence of
  P.W.1 at the place of incident was highly doubtful; that P.W. 1 was with the
  deceased throughout and it was his positive evidence that the deceased had
  not taken any food in his presence but still undigested rice particles were
E found in the stomach of the deceased; that if the death had taken place at
  night there was no occasion for presence of rice particles in the stomach of
  the deceased because the deceased had not taken any food; that non-diges-
  tion of rice raised a doubt as to the time of the incident; that when the
  incident took place it was a dark night and, therefore, it was not possible
  for the witnesses to identify the accused; that P.W. 1 after overpowering
F accused No. 2 did not prevent accused No. 1 from stabbing the deceased
  several times; that such a conduct was unusual; that the knife of accused
  No. 2 did not contain any blood stain, the absence of which indicated that
  the. accused No. 1 did not cause any injury to the deceased; that the accused
  No. 2 gave a knife blow on the forehead and not on any vital part of the
G body; that such overt act on the part of accused No. 2 only indicated that
  he did not intend to cause the death of the deceased; and that for such .
  action he was not liable to be convicted under Section 302 l.P.C. with the
  aid of Section 34 I.P.C.

          On behalf of the respondent it was contended that the incident took
H place on a cloudless starry night in an open space in the field and there was
                          KRISHNANv. STATE                               407

no difficulty in identifying the accused who were known to the witnesses; A
that accused No. 2 was a teacher and he had no occasion to come to the
field at night and to wait for the deceased with a dagger; and that accused
No. 2 was the first to open the attack by jumping and it was not unlikely
that as he jumped he could only cause injury on the forehead of the
deceased.
                                                                                B
      Dismissing the appeal, this Court

      HELD : (per Ray, J) 1.1. In an open field on a cloudless starry night,
there was no difficulty in identifying a known person from a close distance.
That apart, it should be kept in mind that there was no difficulty in           C
identifying the victim by the assailants because of existence of some light
with which identification was possible. P.W. 1 being close relation of both
the accused, there was no difficulty for the P.W.1 to identify them. The
accused were also known to the other witness for which he could also
identify them. [415-C]
                                                                                D
      1.2. Presence of few rice particles in the stomach of the deceased does
not in any way raise any serious doubt about the time of the incident and
also the presence of P.W. 1. [415-F]

      Modi's Medical Jurisprndence and Toxicology, referred to.
                                                                                E
       2.1. It is in evidence that Appellant No. 2 had thrown the knife. The
injury caused by him was not on any vital part of the body and it had only
caused a superficial injury on the forehead. It is not unlikely that little
blood stain on the knife had been wiped off when the knife was thrown in
the field. The absence of any blood stain on the knife is easily explained.
                                                                                F
                                                             [415-G; 416-A]
      2.2. Accused No. 2 being a teacher was not supposed to carry a dagger
at night and to accompany accused No. 1 also carrying a dagger and wait
in darkness for the deceased. The appellant had given out by proclaiming
that they had been waiting for the deceased. It is accused No. 2 who first G
opened the attack by jumping and it is not unlikely that as he jumped, he
could only cause the injury on the forehead of the deceased. Even if he
would have wanted to cause further injury on the deceased, he could not
have done so because he was prevented by P.W.1. By that time, accused No.1
chased the deceased and stabbed him on a number of occasions thereby
causing his death. There was no unusual conduct on the part of P.W. 1 by H
                                                                                         r
    408                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A not attempting to prevent accused No. 1 from stabbing the deceased several
    times. In the aforesaid facts, it can be reasonably inferred that accused No.
    2 had shared the common intention with accused No. 1 to murder the
    deceased. (416-B-D]                                                                  .'
    (per Hansaria, J, concurring) :
B
           1. Establishment of an overt act is not a requirement of law to allow ·
    Section 34 of the Indian Penal Code, 1860 inasmuch as this section gets
    attracted when "a criminal act is done by several persons in furtherance of
    common intention of all". What has to be, therefore, established by the
    prosecutlon is that all the concerned persons ·had shared the common
c   intention.' Court's ~ind regarding the sharing of common intention gets
    satisfied when overt act is established qua each of the accused. But then,
    there may be a case where the proved facts would themselves speak of
    sharing of common intention: res ipsa loquitor. (417-C-E]

D         .2. In the present case the appellant is a school teacher. He is sup-
    posed to be ai;med with a pen and not a knife. He would be normally found
    in his school and not on a road at night, and that too in the company of
    another who is also armed with knife. Not only this, seeing the deceased
    coming, the appellant and the co-accused came out from behind a tree and
    proclaimed to the deceased that they were waiting for him. Thereafter, the
E   deceased is be-laboured, and let it be conceded,.only by the co-accused. In
    the circumstances of the case it would definitely be permissible to draw the
    inference that both the accused had shared a common intention and the
    criminal act in question had been done in furtherance of the intention.
    Section 34 does not require anything more to get attracted. (417-E-G]
F         Chinta Pulla Reddy v. State of Andhra Pradesh, (1993) Supp. (3) SCC
    134, relied on.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    456of1986.
G
         From the Judgment and Order dated 18.7.86 of the Kerala High
    Court in Cr!. A No. 281 of 1983 and Cr!. R.P. No. 190 of 1983.

          U.R. Lalit and T.L. Garg for the appellants.

H         M.T. George and C.N. Sree Kumar for the Respondents.
                                                                                     )
                        KRISHNAN v. STATE (G.N. RAY,J.]                      409

          The following Judgments/Order of the Court were delivered :               A

          G.N. RAY, J. The judgment dated July 18, 1986 passed by the
    Division Bench of the Kerala High Court in D.B. Criminal Appeal No. 281
    of 1983 preferred by the State of Kerala against the order of acquittal dated
    February 25, 1983 passed by the Sessions Judge, Manjery Division, in            B
    Sessions Case No. 29 of 1981 is impugned in the instant appeal. It may be
    stated here that against the said order of acquittal the wife of the deceased
0
    preferred Revision Petition before the High Court being Crl. Revision
    Petition No. 119 of 1983. A show cause notice was also issued by the High
    Court to the accused, after admitted Criminal Appeal No. 281 of 1983, to
    show cause against propo~ed enhancement of their sentence. By the im-           C
    pugned judgment dated July 18, 1986, the High Court disposed of all the
    said matters by a common judgment. The High Court by allowing the
    Criminal Appeal No. 281 of 1983 and Crl. Revision Petition No. 119 of
    1983, set aside the order of acquittal passed by the learned Sessions Judge
    and convicted both the appellants under Section_ 302 read with Section 34       D
    of the Indian P,enal Code and sentenced each of the accused to life
    imprisonment. No order of enhancement has, however, been passed by the
    High Court.

          It may also be stated here that accused No. 1, Krishnan being the
    appellant No. 1 in this appeal, has died during the pendency of this appeal.    E
    This appeal now relates only to accused No. 2 Vijaykumar.

      The deceased, Madavan, was the younger brother of accused No. 1,
Krishnan, and accused No.2 Vijay Kumar is the sister's son of both the
 deceased and the said accused No. 1. The prosecution case in short is that F
on a(;count of enmity arising out of property dispute, both the accused with
a common intention to kill the said Madavan, were waiting for him under
a tamarind tree on August 22, 1981 at 9.30 P.M. When Madavan being
accompanied by P.W. 1 nephew of the deceased was coming back to his
home after lodging a complaint in the Changaramkulam Police Station on G
account of missing of a pump set of the deceased reached a place called
Parappadikkal, both the accused, who were hiding behind a tamarind tree,
jumped out in front of the deceased saying that they had been waiting for
the deceased. Thereafter, the accused No. 2 Vijaykumar inflicted a stab
injury on the foreliead of the deceased with a knife. When P.W. 1 caught
hold of Vijay Kumar in preventing his further attempt to give stab injury H
    410                  SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A on the deceased and made him to put down his knife on the ground, the
  first accused proceeded towards the deceased who was trying to escape
  and gave successive dagger blows and thereafter ran towards the paddy
  field cutting across the road. When P.W. 1 let loose the grip ofthe second
  accused and proceeded to rescue the deceased, the second accused also
  ran away after throwing away the said knife near the place of incident.
B Hearing the noise made by P.W. 1 and the accused at the time of the
  incident, P.W. 4 Velayudha Kurup and P.W. 3 Ramakrishnan also reached
  the place of occurrence. Although the wounds of the deceased were tied
  with the shirt of P.W. 1 he died at the spot. The F.I.R. was lodged with the
  Changaramkulam Police Station by P.W.l by 11.30 on the same night and
c the case was registered against both the accused under Section 302 read
  with Section 34 I.P.C. The Circle Inspector of Police, P.W. 12, took up the
  investigation on the next day and proceeded to the place of occurrence and
   prepared a report (Ex.P 18). The dead body was sent to the hospital for
  post mortem. The house of accused No. 1 was searched and M.Os. 5 to 7
D were taken into custody and he was arrested. The second accused was
   arrested on February 26, 1981. The material objects which were seized
   during investigation were sent to the Chemical Examiner and the Chemical
   Report was obtained (Ex.P. 16).

          The trial court did not accept that the prosecution case was proved
E   beyond reasonable doubt and therefore acquitted both the accused. The
    reasons indicated by the learned Sessions Judge for passing the order of
    acquittal in favour of the accused may be indicated as under :

           1. P.W. 1 is an interested witness and incident happened during dark
     night and there was no occasion for P.W. 1 to identify the assailants. P.W.
F    1 also did not do anything to prevent the accused No. 1 from stabbing the
     deceased. P.W. 3 had flashed a torch light which only indicates that it was   t::
     a dark night.

           2. There was delay in sending a copy of the F.I.R. to Baka Magistrate
G and the delay was not explained by the Investigating Office P.W. 12.

           3. There is contradiction in the depositions of P.W. 1 and P.W. 3.

           4. M.O. No. 1 Which is said to have been used by the accused No.
     2, appellant Vijaykumar, had no sign of blood stain which indicates that
H    the said weapon was not used.
                   KRISHNANv. STATE [G.N.RAY,J.]                        411

      5. The post mortem examination reveals that undigested rice par-         A
tides were found out in the stomach of the deceased. Since the deceased
had not taken any food after 3.30 P.M., such undigested rice particles could
not have been found if the deceased had died at 9.30 P.M.

      The High Court, however, did not accept the reasonings of the            B
learned trial Judge and after giving detailed reasons as to why the view
taken by the trial court cannot be accepted on the face of the evidence
adduced in the case, it set aside the order of acquittal passed in favour of
the accused and as aforesaid, convicted both the accused for the offence
of murder and sentenced each one of them to suffer life imprisonment.
                                                                               c
       So far as the case of the defence that there was no light when the
incident had taken place at about 9.30 P.M. and there was no chance to
identify the assailants is concerned, the High Court has held that according
to the calendar, the moon was to rise at 9.45 P.M. on the day of the
incident. Hence, at about 9.30 P.M. when the incident had taken place, it D
was not a moonlit night put it has been indicated that from the evidence it
transpires that it was not a cloudy night and the incident had taken place
in an open field and the cluster of banana plantation was 15 metres away
from the place of incident. So, there was sufficient light to identify the
assailants who are closely known. The High Court has also indicated that
there was no unusual conduct on the part of P.W. 1 in not preventing E
accused No. 1 from stabbing the deceased because he was already engaged
in tussle for preventing accused No. 2 from dealing the second blow. The
High Court has also indicated that there was no delay in lodging the F.I.R.
On the contrary, the F.I.R. was lodged within two hours after the incident
but the copy of the F.l.R. could not be sent to the Ilaka Magistrate F
immediately because there was a transp_ort strike on the next day. So, there
was dislocation of the transport and after the end of strike, the copy of the
F.1.R. was sent to the Ilaka Magistrate. The presence of small particles of
rice in the stomach of the deceased, according to the High Court, cannot
raise any doubt as to the time of the incident as alleged by the prosecution
witnesses. The High Court has referred to a number of decisions of this G
Court for the purpose of holding that although the rice is likely to be
digested within 3 to 4 hours, non-digestion of rice even thereafter is not
any sure indication that the incident had not taken place beyond 3 to 4
hours after taking rice as a meal by the deceased. The High Court has
indicated that deposition of P.W. 1 gets corroboration from the deposition H
    412                  SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A   of P.W. 3 who had also said that P.W. 1 was engaged in a tussle with
    accused No. 2 Vijaykumar, and accused No. 1 after inflicting dagger
    injuries on the deceased had run away. The High Court was of the view
    that the prosecution case was proved beyond any doubt and the order of
    acquittal was wholly unjustified in the facts of the case and evidence
    adduced. Therefore, it set aside the order of acquittal.
B
         Mr. Lalit, learned senior counsel appearing for the surviving appel-
  lant Vijaykumar, has submitted that the presence of P.W. 1 at the place of
  incident is highly doubtful. He has submitted that according to P.W. 1 he
  was with the deceased since 3.30 P.M. and it is his positive evidence that
c the deceased had not taken any food in his presence. But the doctor has
  found undigested rice particles in the stomach of the deceased. Mr. Lalit
  has submitted that if the death had taken place at 9.30 P.M. as alleged,
  there was no occasion for the presence of rice particles in the stomach of
  the deceased because admittedly the deceased had not taken any food after
D 3.30 P.M. Mr. Lalit has submitted that even though the presence of rice
  particles found in the stomach of the deceased after about six hours may
  not be an impossibility in an unusual case, normally the rice gets digested
  within 3 to 4 hours. There is no evidence that the deceased was suffering
  from any digestive disorder or had taken such quantity of food which could
  not be fully digested. It was therefore reasonably expected that the rice
E stated to have been taken prior to 3.30 P.M. was completely digested.
  Hence, there was no occasion to note the presence of undigested rice
  particles in the stomach by the doctor. Mr. Lalit has also submitted that it
  might not be a cloudy night but it was not a moonlit night as has been found
  by the High Court. It was, therefore, a dark night for which even torch was
F required to be flashed. It was, therefore, not poss.ible either for the P.W.
  1 or for P.W. 3 to notice and identify the assailants. Mr. Lalit has submitted
  that in any event, P.W. 3 was admittedly little behind P.W. 1 and he had
  seen the incident from a distance and in a dark night it was not possible
  for him to see the incident properly and identify the assailants. Mr. Lalit
  has submitted that P.W.l is a close relation of the deceased and he was
G moving with the deceased for lodging a complaint against the accused. It
  is, therefore, quite evident that P.W. 1 was siding with the deceased in the
  family dispute and was inimical to the accused. His deposition, in the
  absence of any !eliable corroborative evidence, should not be accepted. ·
  Mr. Lalit has also submitted that from the deposition of P.W. 1, it is
H revealed that the had overpowered accused No. 2 Hence, when P.W. 1 had
                    KRISHNANv. STAIB[G.N.RAY,J.]                       413

  noticed that accused No. 1 was advancing towards the deceased to stab      A
  him, it was reasonably expe_cted that P.W. 1 would have tried to prevent
· accused No.l but from his deposition it is found that he did not prevent
  and accused No. 1 stabbed the deceased several times thereby causing his
  death. Mr. Lalit has submitted that such conduct is unusual as has been
  rightly commented by the trial court.
                                                                             B
        Mr. Lalit has also submitted that the knife of Vijaykumar was sent
 for forensic examination but from the Report it transpires. that his knife
 did not contain any blood stain. Mr. Lalit has submitted that if accused No.
 2 Vijaykumar had given the first stab injury on the forehead of the deceased
 which penetrated substantially, the knife must have contained some blood C
 stain. The absence of any blood stain only indicates that he did not cause
 any injury on the deceased. Mr. Lalit has also submitted that there is
 contradiction in the deposition of P.W. 1 and P.W. 3. P.W. 1 who had seen
 the incident from a closer distance, has stated that the injury on the
 forehead was caused by accused No. 2 but P.W. 3 stated that accused No. D
 1 caused several injuries by stabbing on the head. and the chest of the
 deceased. He has, therefore, submitted that the injury on the forehead of
 the deceased, according to P.W. 3, was caused by accused No. 1 and not
 by accused No. 2.

                                                                              E
        Mr. Lalit has also submitted that in any event, accused No. 2
 Vijaykumar cannot be convicted for the offence of murder with the aid of
 Section 34 I.P.C. Admittedly, accused No. 2 was the nephew (sister's son)
 of both the deceased and the accused No.1. Even if accused No. 1 had
 enmity with the de.ceased, accused No. 2 had no such enmity against the
 deceased, his close relation. At least, he had no intention to. cause the
                                                                               F
 murder of the deceased. Even if the deposition of P.W. 1 is accepted to be
 correct, Vijay Kumar gave a knife blow on the forehead and not on any
 vital part of the body. Such overt acN:in___the part of accused No. 2 only
 indicates that he did not intend to cause the death of the deceased but to
 cause injury on non-vital part of the body. For such action, he is not liable G
 to be convicted under Section 302 I.P.C. and if the prosecution case is
 accepted, then Vijaykumar, for his overt act of causing simple injury on the
 forehead is liable to be convicted only for the offence of causing simple
 injury. He has, therefore,. submitted that the conviction of appellant No.2
 under Section 302 read with 34 l.P.C. is wholly unjustified and against the H
    414                   SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A weight of evidence. The impugned order, therefore, should be set aside.

          Mr. George, learned counsel appearing for the State, has however,
  disputed the contention made by Mr. Lalit. Mr. George has submitted that
  it has been specifically found that although the moon was scheduled to rise
  at 9.45 P.M., according to calendar, it was a cloudless night. The incident
B
  had taken place in an open place in the field and on a starry night, when
  the moon was about to rise, there could not have been any difficulty in
  identifying the assailants particularly by the witnesses to whom the as-
  sailants were known. Mr. George has also submitted that accused No. 2 is
  a teacher. He was not an agriculturist for which there was any occasion for
c him to come to the field at night and to wait for the deceased. There was
  also no reason for him to carry a dagger with him. Mr. George has also
  submitted that it was accused No. 2 who opened the attack. He jumped
  and stabbed the deceased but it is not unlikely that because of such
  jumping, he could only hit on the forehead. Accused No. 2 thereafter did
D not desist but attempted to cause further injuries with the dagger. It was
   only at that stage, he was prevented by P.W. 1 and a tussle ensued between
   the two as a result of which the dagger dropped from the hand of the
   accused No. 2. The facts established by the evidence adduced by the
   prosecution witnesses clearly demonstrate that accused No. 1 and 2 came
   together with the intention to cause the death of the deceased. Accused
E No. 2 first opened the attack by inflicting stab injury on the forehead of
   the deceased and attempted to give other injuries when he was prevented.
   Accused No. 1 in the meantime made a number of stab injuries on the
   deceased causing his death. It has also come out in evidence that both the
   accused were waiting behind a tamarind tree by concealing their presence
F and    when the deceased reached near the tree, they came out for the
   purpose of killing him. Mr. George has submitted that it is immaterial that
   the accused No. 2 could not give a fatal blow or the deceased because he
   was prevented from giving such fatal blow. The common intention shared
   by him in killing the deceased is clearly discernible from the facts estab-
   lished. His conviction under Section 302 I.P.C. is, therefore, fully justified.
G Mr. George has also submitted that P.W. 3 had seen the incident from a
   little distance. He had noticed that a number of stab injuries were caused
   by accused No. 1. It is not unlikely that he could not notice accurately the
   situs of each of such injuries and the statement that injuries had been
   caused on the head and chest of the deceased by accused No. 1 is
H therefore, easily explained. He has submitted that such contradiction is not
                   KRISHNANv. STATE[G.N. RAY,J.]                        415

at all material and the High Court has rightly not given undue importance      A
to such minor discrepancy. Mr. George has, therefore, submitted that no
interference is called for and the appeal should be dismissed.

       After giving our careful consideration to the facts and circumstances
of the case and the evidence adduced, we do not find any reason to
interfere with the well-reasoned judgment passed by the High Court in
                                                                               B
convicting appellant No. 2 Vijaykumar. So far as the contention of insuffi-
cient light is concerned, we may indicate that in an open field on a
cloudless starry night, there was no difficulty in identifying a known person
from a close distance. That apart, it should be kept in mind that there was
no difficulty in identifying the victim by the assailants because of existence c
of some light with which identification was possible. P.W. 1 being close
relation of both the accused, there was no difficulty for the P.W. 1 to
identify them. The accused were also known to the other witness for which
he could also identify them. So far as appellant Vijaykumar is concerned,
P.W. 1 had physically prevented him from causing further injury on the D
deceased and there was a tussle between the two. Hence, there was no
difficulty for P .W.1 to identify accused No.2 Vijaykumar. His deposition
gets corroboration from the deposition of P.W. 3 who had seen Vijaykumar
at the place of occurrence. P.W. 3 had not seen Vijaykumar causing any
injury on the deceased because by the time P.W. 3 came near the place of
incident and noticed the incident, Vijaykumar had been prevented by E
P.W.1 and his knife had fallen on the ground.

       Presence of few rice particles in the stomach of the deceased does
not in any way raise any serious doubt about the time of the incident and
also the presence of P.W.l. In Modi's Medical Jurisprudence and Toxicol-       F
ogy, several instances have been cited by Mr. Modi that although normally
3 to 4 hours are taken to get rice digested, such digestion may take place
even long thereafter in some cases. The High Court has also referred to a
few decisions where this Court has not disbelieved the prosecution case
about the time of death because of the presence of undigested food
particles by indicating that presence of undigested food particles after       G
usual hours of digestion is not a decisive factor for discarding the time of
death. In the instant case, there is clear and cogent evidence against both
the accused. The absence of any blood stain on the knife of appellant No.
2 Vijaykumar can be reasonably explained. It is in evidence that he had
thrown the knife. The injury caused by him was not on any vital part of        H
    416                  SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A the body and it had only caused a superficial injury on the forehead. It is
  not unlikely that little blood stain on the knife had been wiped off when
  the knife was thrown in the field. In our view, the evidence adduced in the
  case has clearly established the complicity of both the accused in causing
  the murder of the deceased. So far as appellant No. 2 is concerned, the
  argument of Mr. Lal it that his intention to murder has not been established,
B
  cannot be accepted. It has been rightly contended by Mr. George that
  accused No. 2 being a teacher was not supposed to carry a dagger at night
  and to accompany accused No. 1 also carrying a dagger and wait in
  darkness for the deceased. The appellant had given out by proclaiming that
  they had been waiting for the deceased. It is accused No. 2 who first
c opened the attack by jumping and it is not unlikely that as he jumped, he
  could only cause the injury on the forehead of the deceased. Even if he
  would have wanted to cause further injury on the deceased, he could not
  have done so because he was prevented by P.W.l. By that time, accused
  No. 1 chased the deceased and stabbed him on a number of occasions
D thereby causing his death. In the aforesaid facts, it can be reasonably
  inferred that Vijaykumar had shared the common intention with accused
   No. 1. In our view, there was no unusual conduct on the part of P.W. No.
   l by not attempting to prevent accused No. 1. From his evidence, it is quite
   evident that when accused No. 2 intended to cause further injury on the
   person of the deceased, he tried to prevent accused No. 2 and while he
E was engaged in tussle with accused No. 2, accused No. 1 stabbed the
   deceased. P.W.1 also deposed that he also proceeded towards the
   deceased to save him from accused No.I after overpowering accused No.
   2 but by that time, accused No. 1 had given fatal blows to the deceased
   and run away.
F
        We, therefore, find no reason to interfere with the conviction and
  sentence passed against appellant No. 2, the surviving appellant in this
  appeal. The appeal is, therefore, dismissed. Appellant No. 2 has been
  released on bail during the pendency of this appeal. His bail bonds will
  stand cancelled and he would be taken into custody to serve out the
G sentence.

        HANSARIA, J. Despite my respectful agreement with my learned
  brother in all the conclusions he has arrived at, which includes the accep-
  tance of the prosecution case that appellant Vijay Kumar had shared the
H common intention of killing the deceased, a need has been felt by me to
                  KRISHNANv. STA1E[HANSARIA,J.]                        417

say a few words on the very persistent submission of Shri Lalit that as there A
is reason to accept that the appellant had not caused the head injury, he
cannot be convicted under section 302 with the aid of 34, as in that case
no overt act on his part stands proved. The learned counsel was at pains
to submit that without any overt act being attributable to Vijay Kumar,
section 34 would not be available to fasten him with the guilt of causing B
the death of Madavan.

       Question is whether it is obligatory on the part of the prosecution to
establish commission of overt act to press into service section 34 of the
Penal Code. It is no doubt true that court likes to know about overt act to
decide whether the concerned person had shared the common intention in C
question. Question is whether overt act has always to be established? I am
of the view that establishment of an overt act is not a requirement of law
to allow section 34 to operate inasmuch as this section gets attracted when
"a criminal act is done by several persons in furtherance of common
intention of all". What has to be, therefore, established by the prosecution D
is that all the concerned persons had shared the common intention. Court's
mind regarding the sharing of common intention gets satisfied when overt
act is established qua each of the accused. But then, there may be a case
where the proved facts would themselves speak of sharing of common
intention : res ipsa loquitur.
                                                                             E
       Now, take this case. The appellant is a school teacher. He is sup-
posed to be armed with a pen and not a 1..1ife. He would be normally found
in his school and not on a road at night, and that too in the company of
another who is also armed ,with knife. Not only this, seeing the deceased
coming, the appellant and the co-accused came out from behind a tree and p
proclaimed to the deceased they were waiting for him. Thereafter, the
deceased is be-laboured, and let it be conceded, only by the co-accused.
Question is whether the appellant had also the intention which had
animated the co-accused in causing the death? According to me, it would
definitely be permissible to draw the inference that both the accused had
shared a common intention and the criminal act in question had been done G
in furtherance of the intention. Section 34 joes not require anything more
to get attracted,

      Lest it be thought that this view is being taken for the first time by
this Court, reference may be made to Chinta Pulla Reddy v. State ofAndhra H
    418                  SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A Pradesh, [1993) Supp. (3) SCC 134. There also A-1, out of the two accused,
    alone had stabbed the deceased twice which had resulted in the death of
    the concerned person. But then, having noted that A-2 was also armed with
    knife and had gon\: to the house of the deceased and was present in the
    middle of the night at the spot, this Court upheld the conviction of A-2
B   under section 302/34, even though he had not by himself caused any
    specific injury to the deceased. (See para 11). May it be pointed out that
    Chinta Pulla's case is incidentally very close on facts to the one at hand.

          So, even if it were to be conceded that appellant Vijay Kumar had
    not caused the head injury, his conviction under section 302/34 does not
C   suffer from any infirmity.

                                     ORDER
          The Criminal Appeal above-mentioned stands dismissed for the
    reasons recorded in the separate and concurrent judgments.

    v.s.s.                                                  Appeal dismissed.