STATE OF A. P.versusM. SOHAN BABU & ANR.

                  [2010] 14 (ADDL.) S.C.R. 1038


A                         STATE OF A. P.
                                v.
                    M. SOHAN BABU & ANR.
                (Criminal App~al No. 363 of 2005)
                       DECEMBER 14, 2010
B
       [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                      PRASAD, JJ.]

        Penal Code, 1860:
c
       s. 302134, 460 and 324 - Accused entering the house of
  victims at midnight - During the scuffle A-2 stabbed one of
  the victims - A-1 also causing injuries to him - Death of the
  victim - Witnesses also received injuries at the hands of the
0 accused    - Conviction by trial court uls 302134, 460 and 324
  - High Court converting the conviction u/s. 302134 into one
  uls. 304(Part-I) - Held: It cannot be ignored that the two
  accused, duly armed, had entered the premises at mid night
  with the intention of committing robbery - They were also
E charged with the offence punishable uls 460 - A2 had caused
  one injury in the stomach of the deceased while he lay on top
  of him - Injuries were also thereafter caused to the deceased
  by both the accused - It is also in evidence that when the
  neighbours arrived on the scene they too were caused injuries
  and threatened with dire consequences - The High Court has
F been influenced by the fact that there was no common
  intention on the part of the accused to commit murder -
  However, the common intention can be inferred from the
  circumstances of the case as they arise even during the
  incident - The initial purpose was to commit robbery, but as
G the accused were armed with knives which they had used
  repeatedly and effectively, they were willing to kill - Therefore,
  the High Court's observation that the matter fell u/s. 304 (Part-
  /) and not uls. 302 of the /PC is erroneous and to that extent

H                                1038
     STATE OF A. P. v. M. SOHAN BABU & ANR.                1039


High Court's judgment is set aside - The judgment of the trial      A
court is restored.

     s. 34 - Common intention - Explained.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                                                                    B
No. 363 of 2005.

     From the Judgment & Order dated 11.12.2003 of the High
Court of Andhra Pradesh at Hyderabad in Crl. Appeal No. 37
of 2002.

     I. Venkatanarayana, Ramesh Allanki, D. Mahesh Babu for
                                                                    c
the Appellant.

     Anil Kumar Tandale, Manoj C. Mishra, Brajesh Jha for the
 Respondents.
                                                                    D
     The following order of the Court was delivered

                             ORDER

      1. This is indeed an unfortunate case.
                                                                    E
       2. P.W. 1-Maxwell Trevor, P.W.2-Gene Trevor and P.W. 4-
  Marlene Moss are brothers, whereas P.W. 5 Sherlyn Trevor is
  the wife of the deceased Glen Trevor. P.W. 3 Ezzard Moss is
  the sister of the deceased and wife of P.W. 4. The entire
  extended family was residing in a residential house bearing No.   F
  12-5-18812 Lalaguda, Secuoderabad, consisting of two floors
  with two portions in each floor. The deceased was an employee
  of the Railways and he along with his wife and children was
  residing in the southern portion of the ground floor whereas
  P.W. 4 along with his wife and children was residing in the       G
  northern portion of the ground floor. P.Ws. 2,3 and 4 were
· residing on the first floor of the said premises. P.W. 6-D.
  Francis Satyanandam, was a neighbour of P.Ws. 1 to 5 with
  his residence on the southern side of the said premises. During
  \he intervening night of 20th/21st November, 1991 shortly after   H
    1040 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   midnight the deceased heard some footsteps and came out
    to investigate. He found A2 standing on the balcony of the first
    floor. A scuffle ensued between the two and the shouts and
    screams that came about in the scuffle woke up the other
    occupants of the building and they saw the deceased and A2
B   grappling with each other. As the deceased was a sportsman
    of some repute and physically strong he managed to pin A2 to
    the ground by falling on him. A2 thereupon took out a knife from
    the right side of his hip pocket with his right hand and stabbed
    the deceased on the left side of the abdomen and when P.W.
c   3 went to his rescue A2 stabbed him on the lower part of the
    right arm as well. In the meanwhile, A1 came from the side of
    the balcony and stabbed the deceased on both his thighs. A 1
    also prevented P.Ws. 1 and 3 from going to the rescue of the
    deceased by holding a knife at the throat of P.W. 3. A1 also
    stabbed P.W. 2 on his left shoulder. Despite the injuries having
0
    been caused to them, P.Ws.1 and 2 over powered A-2 and
    pushed him from balcony. In the meanwhile, the other
    neighbours arrived at the scene and got hold of A 1 as well.
     P.Ws. 1 to 3 brought both the accused to the ground floor,
    where they were tied up with a rope and information was also
E   sent to the police. In the meanwhile, P.W. 1 secured a car from
    his neighbour Captain P. Crlbyand and removed the injured to
    the Railway Hospital Lalaguda, but he succumbed to his injuries
    on the way. The other injured were also brought to the hospital
    and they were examined and given first aid for their injuries.
F   Their injuries were found to be simple. The trial court relying
    on the evidence of the aforesaid witnesses as supported by
    the medical evidence convicted and sentenced the accused
     under Sections 302/34, 460 and 324 of the Indian Penal Code.

G      3. An appeal was thereafter taken by the accused to the
  Andhra Pradesh High Court, which, modified the conviction to
  one under Section 304 Part I IPC (while acquitting the accused
  of the offence under Section 302). It is this part of the judgment
  which has been challenged by the State of Andhra Pradesh by
H way of this appeal.
     STATE OF A. P. v. M. SOHAN BABU & ANR.               1041


    4. The facts as recapitulated reveal trat the accused duly     A
armed had entered the house of the deceased and when they
had been challenged they had caused one fatal injury to the
deceased. The High Court has found that as the case of the
accused was not covered by Clause thirdly of Section 300 they
were liable for conviction under Section 304 Part I and not        B·
Section 302. While dealing with this matter, the High Court has
observed as under:

    "That being the settled law, we have to consider whether
    the two requirements contemplated by the third clause of       C
    Section 300 IPC have been fulfilled. We have already
    noticed that the testimony of direct witnesses pointing to
    one thing that A2 dealt a knife blow on the left abdomen
    of the deceased - The only question then to be considered
    is whether A2 intended to inflict injury that was found on
    the dead body of the deceased. It is time to recapitulate      D
    the evidence of P.Ws. 1 to 4 quickly. P.w. 1 testified that
    by the time he came on to the balcony of the first floor the
    deceased and A-2 were grappling and more particularly
    the deceased was on the top of A-2 pinning him down to
    the ground. It is to be noted that the deceased was an         E
    internationally renowned cyclist and physically well built
    person and whereas A2 is a shorter man. In the situation
    in which A-2 was placed made us to.believe that he dealt
    a knife blow in the process of extricating himself from the
    clutches of the deceased and unfortunately the blow landed     F
    on the vital part of the deceased, which ultimately led to
    his death. In these circumstances, the offence committed
    by A-2 comes within the purview of Section 304 I."

     5. We find that in the facts of the case, the observations    G
given above are not correct. It cannot be ignored that the two
accused had entered the premises at mid night duly armed with
the intention of committing robbery. They were also charged
under Section 460 IPC on that account. It is also in evidence
that the deceased had managed to pin A2 down to the ground
                                                                   H
    1042 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A and A2 had caused one injury in the stomach of the deceased
  while he lay on top of him. Two injuries were thereafter caused
  on the thigh of the deceased by A2 and the other accused. It
  is also in evidence that when the neighbours arrived on the
  scene they too were caused injuries and threatened with dire
B consequences. To say, therefore, that there was no intention on
  the part of the accused to cause death would be carrying the
  matter a little too far. The High Court has been influenced by
  the fact that there was no common intention on the part of the
  accused to commit murder. We see, however, that the common
c intention can be inferred from the circumstances of the case
  and that the intention can be gathered from the circumstances
  as they arise even during an incident. The initial purpose was
  to commit robbery, but as the accused were armed with knives
  which they had used repeatedly and effectively, they were
  wimng to kill as well and that they could nto cause more damage
0
  as they were overwhelmed and pinned down.

       6. We, therefore, feel that the High Court's observation that
  the matter fell under Section 304 Part I and not under Section
  302 of the IPC is erroneous. We, accordingly, set aside this
E part of the High Court judgment and restore that of the trial court.

           7. The appeal is allowed.

    R.P.                                            Appeal allowed.