Judgment
As delivered
PETITIONER:BHABA NANDA SARMA & ORS.
Vs.
RESPONDENT:THE STATE OF ASSAM
DATE OF JUDGMENT12/10/1977
BENCH:UNTWALIA, N.L.BENCH:UNTWALIA, N.L.GOSWAMI, P.K.DESAI, D.A.
CITATION:1977 AIR 2252 1978 SCR (1) 7141977 SCC (4) 396CITATOR INFO :R 1988 SC 863 (11)
ACT:Indian Penal Code, S. 34 vis-a-vis s. 38-Assault by commonintention to cause injury likely to result in death-Development of further common intention among someassailants to commit murder-Liability for murder whethershared by all participants under s. 34.
HEADNOTE:The three appellants assaulted deceased Shashi Mohan withthe common intention to cause injury likely to result in hisdeath, but during the assault, two of them developed afurther common intention of murdering him. The sessionsCourt tried the appellants for charges u/ss. 302/34 and ss.323 /34 I.P.C. but giving them the benefit of doubt,acquitted them. In a State appeal, the High Court set asidethe acquittal order, and convicted all the assailantssentencing them for life.This Court considered the question whether the conviction ofall the three appellants u/s. 302 with aid of s. 34 I.P.C.was justified in law, and partly allowing only the appeal ofBhaba Nanda Sarma.HELD :-Applying the principle of law under s. 38 of thePenal Code, the case of Bhaba Nanda can be separated fromthat of his two brothers. He shared their common intentionto assault, with the knowledge that it was likely to resultin death but while committing the act in furtherance of thatcommon intention, the other two developed and shared thecommon intention of causing the murder. Bhaba Nanda can,therefore, be held guilty only u/s. 304 Part 11 while theother two appellants are liable for the murder with the aidof s. 34 of the Penal Code. [717 G-H, 718 A-B]Afrahim Sheikh and Ors. v. State of West Bengal [1964] 6S.C.R. 172 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 155 of1972.
Appeal by Special Leave from the Judgment and Order datedthe 24-11-1971 of the Assam and Nagaland High Court atGauhati in Criminal Appeal No. 20 of 1968.
S. K. Nandy for the Appellants.
S. N. Choudhary for the Respondent.
The Judgment of the Court was delivered byUNTWALIA, J.-This is an appeal under section 2 (a) of theSupreme Court (,Enlargement of Criminal AppellateJurisdiction) Act, 1970 by three persons who are brothers.On the 10th of November, 1967 at about 7.00 A. M. anoccurrence took place in a village near Barpeta in Assam.The prosecution case was that Shashi-Mohan Sarma, a personwho lost his life as a result of the assault on him', inthe company of his elder brother Gopi Nath Sarma, P.W. 2,was proceeding to his field with some mustard seeds in abasket. Gopi Nath was going with some cattle to tether themin the field. When they proceeded to some distance ShashiMohan was chased by the three appellants, appellant BhabaNanda Sarma who was aged about 20 years at the time of theoccur-
715rence was armed with a lathi, appellant Phanidhar Sarma hada dolibari (a wooden hammer with along handle) and appellantHarendra Nath Sarma carried an iron rod in his hand. Theyall chased Shashi Mohan. Shashi Mohan ran towards hisbrother Gopi Nath raising alarm. Bhaba Nanda caught hold ofboth the hands of Shashi Mohan from behind. Thereupon,Phanidhar gave him a blow on his head with the dolibari.Shashi Mohan fell down. There-after Harendra struck ShashiMohan on Ms head and other parts of as body with the ironrod. Gopi Nath tried to intervene. Bhaba Nanda caught holdof Gopi Nath also Harendra assaulted him with the iron rodcausing injuries. Shashi Mohan was taken to the hospitalwhere he died at about 3.00 A.M. on the 11th of November,1967 as a result of severe injuries caused to him byPhanidhar and Harendra. The injuries inflicted on Gopi Nathwere all simple in nature. After charge-sheet by the policeand committal by the Magistrate, the appellants were triedin the Sessions Court for charges under section 302 readwith section 34 and section 323 read with section 34 of theIndian Penal Code. The Trial Judge gave them the benefit ofdoubt and acquitted them. The State of Assam filed anappeal in the High Court of Gauhati. The High Court setaside the order of acquittal, convicted all the threeappellants for the offence of murder of Shashi Mohan withthe aid of section 34 and sentenced each of them to impri-sonment for life. Their conviction under section 323 readwith section 34 was also recorded by the High Court but noseparate sentence was imposed. Hence this appeal.The eye witnesses of the occurrence were P.W. 2 Gopi NathSarma; P.W. 3 Danesh Ali; P.W. 4 Nur Mohammad and P.W. 6Kurpan Ali. The High Court in its judgment has cataloguedthe main five reasons which led the Sessions Judge to makean order of acquittal in favour of the appellants. In ouropinion the High Court was right in reversing the judgmentof the Trial Judge and interfering with the order ofacquittal. It did so well within the limits of its powerand the law as enunciated by this Court in severaldecisions. The four reasons given by the learned SessionsJudge were of a flimsy nature. It did not justify theentertaining of any doubt in regard to the prosecution storyon the basis of these reasons. One of the five reasons wasthat the P.Ws did not state about the injuries of BhabaNanda and they were not explained by the prosecution. Inour opinion the High Court has rightly not attached muchsignificanceto the alleged failure of the prosecution toexplain the injuries on Bhaba Nanda. The injuries on hisperson were of a very minor nature, three ofthem beingecchymosis and one swelling of the root of right indexfinger. The evidence of the Doctor D.W. 1 was notsufficient to prove that theinjury on the right indexfinger was grievious in nature. The ecchymosis inquirieshowever, were all very simple. Bhaba Nanda did not claim inhis statement under section 342 of the Code of CriminalProcedure, 1898 as to with what weapon the injuries werecaused on his person. He merely said that Gopinath andShashi gave blows on his back. He did not attribute theright index finger injury as having been caused by either ofthe two. No defence witness was examined to give anycounter version of the occurrence. Bhaba Nanda did not showhis injuries to the Investigating Officer, as is apparentfrom his evidence, when he arrested him soon after theoccurrence. No counter information9-951 SCI/77716was lodged with the police nor any counter case filed. In acase of this nature before an adverse inference is drawnagainst the prosecution for its alleged suppression orfailure to explain the injuries on the person of an accused,it must be reasonably shown that, in all probability, theinjuries were caused to him in the same occurrence or as apart of the same transaction in which the victims on theside of the prosecution were injured. The prosecution isnot obliged to explain the injuries oil thepersonof an accused in all cases and in allcircumstances. This is not thelaw. It alldepends upon the facts and circumstances of each casewhetherthe prosecution case becomes reasonably doubtful for itsfailure to explain the injuries on the accused. In theinstant case the Sessions Judge was not justified indoubting the truth of the version given by the eyewitnesses-three of whom were wholly independent witnesses.Gopi Nath was surely present on the scene of the occurrenceas he himself had received the injuries in the sametransaction. The High Court has rightly believed thetestimony of the eye witnesses.
The question for consideration, however, is whether theconviction of all the three appellants under section 302with the aid of section, 34 of the Penal Code is justifiedin law.
To attract the application of section 34 it must beestablished beyond any shadow of doubt that the criminal actwas done by several persons in furtherance of the commonintention of all. In other words, the prosecution mustprove facts to justify an inference that all the partici-pants of the act bad shared a common intention to commit thecriminal act which was finally committed by one or more ofthe participants. Section 38 of the 'Penal Code says :-
"Where several persons are engaged orconcerned in the commission of a criminal act,they may be guilty of different offences bymeans of that Act."
In Afrahim Sheikh and others v. State of West Bengal(1)Hidayatullah J. as he then was, has pointed out that it waspossible to apply the ingredients of section 34 in relationto the commission of an offence tinder section 304 Part II,even though death is caused with the knowledge of thepersons participating in the occurrence that by their actdeath was likely to be caused. The sharing of the commonintention, as pointed out in that case, is the commission ofthe act or acts by which death was occasioned. Withreference to section 38, the learned Judge observed at page178 :
"That is to say, even though several personsmay do a single criminal act. theresponsibility may vary according to thedegree of their participation. Theillustration which is given clearly brings outthat point.
lastly section 38 provide., that theresponsibility for the corn pleted criminalact may be of different grades according tothe share taken by the different accused inthe completion of the criminal act, and thissection does not mention anything aboutintention common or otherwise or knowledge."
(1)[1964] 6 S.C.R. 172.
717The injuries found on the person of the deceased by P. W. 5Dr. S. Kalita, who held the autopsy over the dead body wereof a very severe nature. The fatal injuries in particularwere the three head injuries. According to the consistentversion of the prosecution-one was caused by Phanidhar withthe dolibari and the other two were inflicted by Harendrawith the iron rod. Harendra is also said to have caused theother injuries found on the person of Shashi Mohan. Theresult of the three head injuries was fracture of theoccipital bone into six pieces and fracture of the rightparietal bone 2" in length. In the opinion of the Doctorthe death was due to coma as a result of intracranialhemorrhage caused by the injuries sustained by the victim.The two authors of the injuries, namely, Phanidhar andHarendra, therefore, undoubtedly had shared the commonintention of causing such bodily injuries to Shashi Mohanwhich were sufficient in the ordinary course of nature tocause his death. In other words, his death was as a resultof the criminal acts committed by the said two appellants infurtherance of their common intention. There cannot be anydoubt about it. Their liability for the murder of ShashiMohan with the aid of section 34 of the Penal Code is fullyestablished. The case of Bhaba Nanda, however, stands on adifferent footing and can justifiably be separated from thatof the other two appellants.
On the evidence of Gopi Nath himself the result aforesaid follows. Shashi Mohan had reached near him and when he tried to obstruct the accused and prevent them from committing the assault on Shashi Mohan Harendra said "we have met enemy today, need not be freed". Thereupon Bhaba Nanda caught hold of-the hands of Shashi Mohan from behind. Phanidhar then gave him the blow on the head, as already stated, with the dolibari. Harendra gave further blows on his head and other parts of his body after Shashi fell down. On these facts it is difficult to conclude that Bhaba Nanda caught hold of the hands of Shashi sharing the common intention of Phanidhar and Harendra of causing the death of Shashi. He did not utter a word which would justify such a conclusion. He must be aware that his two elder brothers Phanidhar and Harendra were going to assault Shashi with their respective weapons in their hands. Bhaba Nanda did not use his lathi for causing any injuries on Shashi. The first blow was given by Phanidhar. Thereupon Shashi fell down. Bhaba Nanda's intention, therefore, was to join in the commission of the acts by the other two with the intention of getting Shashi assaulted severely with the knowledge that such an assault in all probability and likelihood might result in the death of Shashi. His participation in the crime, therefore, did not take him to the extent of the sharing of the common intention to cause his murder. As we have said above, Phanidhar and Harendra undoubtedly shared such an intention as is apparent from the manner of assault by them on Shashi and the severity and force with which the blows were given on his bead by both of them with the respective weapons in their hands. Applying the principle of law under section 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separated from that of the other two. He can be held guilty only under section 304 Part II as he bad intentionally joined in the commission of ,an act with the knowledge that the assault on Shashi was likely to result in his death. The facts of this case indicate that Bhaba Nanda 718 shared the common intention of his other two brothers for the commission of a lesser offence than murder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra developed and shared the common intention of causing his murder.
For the reasons stated above, the appeal of appellants Phanidhar and Harendra is dismissed. The appeal of Bhaba Nanda is partly allowed. His conviction is altered from sections 302/34 to section 304 Part 11 read with section 34. The sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years only. The conviction of all the appellants under sections 323/34 is also main- tained.
M.R. Appeal allowed in part. 719
