PROJECT OF INDIAN PENAL CODE

In theSUPREME COURT OF INDIA

NANDU RASTOGI V.

STATE OF BIHAR

2002 Cri L.J. 4698.

SUBMITTED TO: SUBMITTED

BY:

MS. PUSHPINDER KAUR GILL NUPUR WALIA

ASSISSTANT PROFESSOR, Vth SEMESTER

UILS, PU. 38/10

SECTION - A

2

TABLE OF CONTENTS

Particulars

1. Table of Cases

2. Research Methodology

3. Acknowledgement

4. Facts of the Case

5. Arguments Raised

a. By the Prosecution

i. Statements by the prosecution witnesses

b. By the Defence

6. Summary of Trial

7. Court Filings

8. Issues Invloved

9. Explanation of the sections invoked in the instant case

a. Section 34

b. Section 300

c. Section 302

10. Holding by the Court

11. Critical Appraisal

12. Latest Judgments

13. Bibliography

3

TABLE OF CASES Parshuram Singh v State of Bihar (2002) 1 JT 407: (2002) 2 Supreme 234

Suresh v State of U.P., 2001 Cri LJ 1462: 2001 AIR SCW 1051: AIR 2001 SC 1344:

2001 All LJ 703: (2001) 3 SCC 673.

R v. Cruse 1838 C & P 541.

Ganesh Singh v Ram Raja (1869) 2 BLR 44 (PC).

Wasim Khan v. State of UP, AIR 1956 SC 400.

Kirpal Singh v State of UP AIR 1954 SC 706

Maina Singh v. State of Rajasthan AIR 1976 SC 1084.

Krishna v Maharashtra AIR 1963 SC 1413.

Ramashraya and another v. State of Madhya Pradesh2001 Cri. L.J. 1452 (SC).

Y. Venkaiah v. State of A.P (2009) 3 Cr L.J. 2834 (SC) at p. 2839.

Nand Kishore V. State Of Madhya Pradesh2011(3) RCR(Criminal) 658 (Sc).

Satish Kumar V. State Of Punjab 2010(1) RCR Criminal) 586 (P & H) (Db).

Sarabjit Singh V. Sumandeep Singh2012(2) RCR(Criminal) 149 Punjab And

Haryana.

RESEARCH METHODOLOGY

The subject matter of Indian Penal Code is voluminous. In this project, I have attempted to

critically appraise an important case law, i.e. Nandu Rastogi v State of Bihar. I have focused

on putting in my own words, the facts of the case, the various arguments and counter

arguments, what the decision has been and if in my opinion, it has been considered and

delivered in a forthright manner.

I have used the doctrinaire research method to explain the various sections involved therein.

The judgment has been extracted from the Criminal Law Journal of 2002, available in the

UILS Library.

Other recent judgments were extracted from other law search engines such as Manupatra,

VakilSearch and IndianKanoon.

4

ACKNOWLEDGEMENT

To brief a case law requires attention to every single detail. So saying, I extend my due

thanks to my professor, Ms. Pushpinder Kaur Gill, who actually gave us outlines about the

project contents. Had it not been for the information that she extended, the project work

wouldn’t have been a fruitful experience.

I hereby thank her for allowing me to deliberate on this important case law.

Acknowledged by –

Nupur Walia

38/10

5

LEARNED COUNSEL FOR THE APPELLANTS: P.S. Mishra, Sr. Advocate

Vishnu Sharma

S. Chandrashekhar

Upendra Kumar

LEARNED COUNSEL FOR THE RESPONDENTS: B.B Singh

Kumar Rajesh Singh

JUDGES: N. Santosh Hegde

B.P. Singh

CASES REFERRED TO BY THE LEARNED

COUNSELS: Parshuram Singh v State of Bihar (2002) 1 JT 407: (2002) 2 Supreme 234

Suresh v State of U.P., 2001 Cri LJ 1462: 2001 AIR SCW 1051: AIR 2001 SC 1344:

2001 All LJ 703: (2001) 3 SCC 673.

6

FACTS OF THE CASEThe facts and circumstances of the case are as follows –

On 12 November, 1985, at about 5 p.m., when the informant [Shyam Mohan Rastogi,

PW. 4] was sitting in his shop, namely Shankar Stores, along with his tenant [Ayodhya

Tiwari, PW 5], Nandji Rastogi came to the shop.

He warned the informant who is his uncle [being the cousin of his father], to caution his

son that he should not interfere in his matters. So saying, he went away threatening the

informant with dire consequences.

At about 6.45 p.m., electricity supply was cut off when informant was sitting in his shop

with his son Shankar Rastogi [deceased], one Shambhu Lal, his son Mukund Lal and

Manjoor Ansari [PW 1].

Since it was Diwali day, candles and earthen lamps were lit in the shop and elsewhere.

15 Minutes, at about 7 p.m., the appellant [Nandji Rastogi], along with his brother

appellant [Bal Mukund Rastogi], accused Jagdish Chamar and two other unknown

persons entered the Shankar Stores, armed with country made pistols.

Main accused [Nandji]; accused Jagdish Chamar and one other unknown [person caught

hold of the informant’s son, Shankar and took him inside, to the residential apartment

which is just behind the shop, at gun point.

When the informant and others wanted to intervene, they were prevented by the appellant

Bal Mukund Rastogi and one unknown companion who stood guard with the pistols in

their hands, and threatened them to keep quiet.

After Shankar Rastogi was taken inside the residential apartment by Nandji Rastogi and

others, gun shots were fired and it was followed by the cry of the woman from inside the

house. The actual killing was seen by the deceased’s mother.

An alarm was raised and the accused fled away threatening them.

When they went inside, he found his son bleeding and unconscious. He was taken to

Kudra Hospital by the people who gathered there, where he was declared dead.

Following the occurrence, a First Information Report (FIR) was lodged by the informant

and father of the deceased, promptly at 8.00 p.m on the same day. The aforementioned

facts were recorded therein.

7

ARGUMENTS RAISEDArguments by the Prosecution –

Mr. B.B. Singh and Kumar Rajesh Singh are the learned counsel for the respondents.

The case of the prosecution as disclosed in the FIR lodged by the informant (deceased’s

father) on the same date as that of commission of the crime, are depictive of the facts

mentioned hereinbefore.

According to the prosecution, the background in which this occurrence took place, and

which also discloses the motive for the offence, is that the informant and father of

deceased Shankar owned a house which he sold to one Braj Kishore Rastogi, who in turn

sold the said house to appellant Nandji Rastogi.

Manjoor Ansari [PW 1] was the tenant of a shop in that building, but Nandji Rastogi was

pressurizing him to vacate the premises.

Shankar (deceased) son of the informant took side of Manjoor Ansari and declared that he

will not permit Nandji to forcibly evict him. He even threatened that he may challenge the

sale of the house by his father since his father had no legal authority to sell his share in

the house. From the evidence on record, it appeared that Manjoor Ansari was on good

terms with the informant and his family members and continued to occupy the shop

premises even on the date of occurrence.

STATEMENTS OF THE PROSECUTION WITNESSESPWs 1 to 5 are the witnesses examined by the prosecution to prove its case.

PW 1, Manjoor Ansari, deposed that he was sitting with Shambhu Lal, his son Mukund

Lal, Shankar (deceased) and the informant in the shop of the informant when 4-5 persons

came armed with country made pistols. Three of them took Shankar to the residential

apartment while the remaining two prevented them from intervening in the matter. Soon

thereafter, he heard the sound of gun fire and thereafter the accused fled. Shankar’s

mother came out and informed them that Nandji shot dead Shankar. The witness claims to

have gone inside the house and seen Shankar lying injured. He was removed to the

hospital but was declared dead. PW 1 identified the appellants and Jagdish Chamar.

8

PW 2, Kamla Rastogi, who is the wife of the informant and deceased’s mother deposed

that she was in the kitchen when her grandson aged about 10-11 years came and told her

that dacoits had entered the shop. She rushed towards the shop but on the way she saw

Nandji and Jagdish holding her son, while on unknown person was standing behind them.

Nandu fired from his pistol injuring Shankar who fell down on the spot. She thereafter

came out, met her husband and informed him, but prevented him from going inside on

account of fear. She also met Manjoor Ansari, Shambhu Lal and his son Mukund Lal

from whom she learnt that they were prevented from going inside by appellant Bal

Mukund Rastogi and another person.

PW 3, Mrityunjay Singh deposed that he was having tea at a tea stall nearby when the

lights went off. Soon thereafter he heard the report of gun fire and rushed towards the

house of the informant. He saw 5 persons coming out of the house of the informant armed

with pistols. Out them, he identified the appellants and Jagdish Chandra.

Shyam Mohan Rastogi, informant, in his deposition fully supported the facts mentioned

by him in the FIR. He further stated that while he was trying to enter the house, he was hit

by an unknown accused on his head with the butt of the pistol. He further stated that

Ayodhya Tiwari (PW 5) and Mrityunjay Singh (PW 3) came soon after the incident. He

also informed the Court that Shambhu Lal and his son Mukund Lal were not willing to

depose as witnesses in the case.

The last important witness Ayodhya Tiwari (PW 5) deposed about the incident taking

place at 5 pm in which the Nandji has threatened the informant warning him to caution

his son, the deceased. At the time when the firing took place, he was in his room. He

resided in the informant’s house. When he heard the report of fun fire, he wanted to come

out of the house, but on seeing 5 persons coming out the running away, he did not stir out

of his room immediately. Later when he came out, he was told by Mrityunjay, Manjoor

Ansari’s wife, and Shankar’s parents about the occurrence. He had identified the

appellants and Jagdish Chamar.

PW 6 is Dr. Shyam Sunder Singh is the doctor who performed the post-mortem

examination on the deceased’s body at 100.00 a.m. on the 13th November, 1985. The

post-mortem report and the evidence along with left no manner of doubt that Shankar

Rastogi met a homicidal death. This point was therefore not challenged by the defence.

PW 7 is the investigating officer.

9

ARGUMENTS BY DEFENCE The defense of the appellants, on being put for trial, was that no such incident as alleged

took place and that they had been falsely implicated on account of some dispute over

a common wall.

Suggestions were put to some of the witnesses that a dacoity took place in the house of

the deceased and in the course of that dacoity the deceased was shot dead.

Counsel for the appellants submitted that the grand child of the informant, who first

came and reported to his grandmother, Kamla Rastogi that dacoits had entered the shop

was not examined by the prosecution.

That Shankar Rastogi met a homicidal death was not even challenged by the appellants.

Learned counsel for the appellants also submitted that in any event so far as Bal Mukund

Rastogi is concerned, there is no allegation that he took part in the assault. He

submitted that his false implication cannot be ruled out and that his conviction with the

aid of Section 34, IPC is not justified in the facts and circumstances of the case.

He relied upon two decisions given by this very Court in Parshuram Singh v. State of

Bihar1 and Suresh and another v. State of U.P2., but the plea of these two didn’t help the

defence.

In the former case, the Supreme Court gave to two of the accused persons the benefit of

doubt having regard to the peculiar facts and circumstances of that case. Against one of

the accused in that case, the allegation was that he exhorted the others to kill the

deceased, and though he himself was armed with Lathi, he did not take any part in the

assault. The Court found that the surrounding circumstances of the case did not ensure the

confidence that he made such an exhortation. Apart from not using the weapon, which

was handy with him, there appeared no reason for him to take up the leadership of the

gang as he had no quarrel with the deceased. As regards the other accused to whom the

benefit of doubt was extended, the Court found that it was highly improbable that he

would have refrained from using the inherently lethal weapon like the pistol which was in

his possession if he shared the common intention. In our view, the decision in Parshuram

Singh’s case rests on its own peculiar facts and no principle of law can be culled from

that decision which may be of any assistance to the appellants in this case.

The defence also drew the court’s attention to paragraph 23 of the latter judgment

wherein it has been stated that to attract Section 34, IPC, two postulates are indispensable:1 JT 2002(1) SC 407.2 (2001) 3 SCC 673.

10

o The criminal act (consisting of a series of acts), should have been done, not by one

person, but more than one person.

o Doing of every such individual act cumulatively resulting in the commission of

the criminal offence should have been in furtherance of the common intention of

all such persons.

The learned counsel for the appellants also drew the court’s attention to the discussion in

the judgment about the difference between a “common intention” and “similar

intention”. It has been observed by this Court that to attract the applicability of the Code

the prosecution is under an obligation to establish that there existed a common intention

which requires a pre-arranged plan, because before a man can be vicariously convicted

for the criminal act of another, the act must have been done in furtherance of the common

intention.

In the facts of the case, the Court found that Pavitri Devi, accused No. 3 could not be held

guilty of the offence of murder with the aid of Section 34 since she was merely standing

on the road when the incident happened. Here mere presence without doing anything

more, without even marching along with the other assailants, did not attract Section 34,

IPC.

SUMMARY OF TRIAL

11

This appeal, preferred under Section 34 of the Indian Penal Code, 1860 is directed against

the judgment and order dated 15.01.2001, passed by learned Additional Sessions Judge.

The appellants in these appeals, namely, Nandu Rastogi alias Nandji Rastogi and Bal

Mukund Rastogi are brothers.

They along with one Jagdish Chamar and Mohan Singh were put up for trial before 2nd

Additional Sessions Judge, Rohtas at Sasaram, who found the appellants and Jagdish

Chamar guilty of the offence under Section 302/34, IPC and to undergo rigorous

imprisonment for one year under Section 27 of the Arms Act.

COURT FILINGS The accused persons preferred three appeals before the High Court but by a common

judgment and order, the High Court dismissed the appeals and affirmed their conviction

and sentence.

Three special leave petitions were preferred before the Supreme Court but since Jagdish

Chamar did not surrender to his sentence, his special leave petition was dismissed by

order dated 3rd December, 2001.

Special leave to appeal was granted to the appellants therein i.e. Nandji and Bal Mukund

Rastogi.

ISSUES INVOLVEDSince the accused brothers have appealed before the Supreme Court, it is important to throw

light on what all issues are involved? The issues presented are:

Whether each one of the accused must assault the deceased?

Whether it is enough if it is shown that the accused shared a common intention to commit

the offence and in furtherance thereof each one played his assigned role by doing separate

acts, similar or diverse?

Can the Supreme Court interfere with the Conviction of appellant- accused for murder

(Section 300) with the aid of Section 34?

12

EXPLANATION OF THE SECTIONS INVOKED IN

THE INSTANT CASE –A. SECTION 34 –

Doctrine of Combination –

The doctrine of combination in crime helps in appointing the liability of members who

commit the crime in a group. According to this doctrine, when a crime is committed by a

group in furtherance of common intention or in prosecution of common object, each

member of such group will be liable for that in the same manner as if it were done by him

alone.

Under the English Law, persons committed with the commission of a crime are divided in

two categories

Those who participate in actual commission of the crime, called the principal.

Those who in any way assist the execution, called accessories.

Section 34 [Common Intention] reads as follows –

“When a criminal act is done by several persons, in furtherance of the common intention of

all, each of such person is liable for that act in the same manner as if it were done by him

alone.”

The section is based on the facts and decisions of R v. Cruse,3 where a constable with his

assistant went to arrest a person. Several persons who were friends of that man beat the

constable and his assistant. The assistant was killed but it was not known who gave the fatal

stroke. Every person was held liable for causing the death of the assailant.

Constructive Criminality:

As it is difficult to distinguish precisely the part played by each member of a group, it was

thought necessary to declare all the persons equally liable for the acts done. S 34 does not

create a distinct offence; it only lays down the principle of joint criminal liability. So it is a

rule of evidence only and does not create a substantive offence. Mere fact that the co-accused

was found in the company of the main accused at the time of occurrence is not sufficient to

impute common intention to them. But, it creates a joint and constructive liability for criminal

act committed in furtherance of such common intention.

3 1838 C & P 541.

13

AMENDMENT IN S. 34 –

The words ‘in furtherance of the common intention of all’ were added to S 34 after the word

‘persons’ in 1870; the idea for which, possibly, was derived from the following passage of

the Privy Council’s judgment in Ganesh Singh v Ram Raja4 :

“Where parties go with a common purpose to execute a common object, each and every one

becomes responsible for the acts of each and every other in execution and in furtherance of

their common purpose; as the purpose is common, so must be the responsibility.”

INGREDIENTS OF S. 34:

I. Criminal Act by Several Persons –

The expression ‘criminal act’ includes within its ambit any word, gesture, deed or

conduct of any kind on the part of any of them, active or passive, which tends to support

the common design of committing a crime. In short, it consists of a bundle of acts,

omissions, conducts, connected with the common intention of committing a crime. In

such a case, the liability is joint and several. Any one of them might have actually done it,

each is liable individually. The expression ‘several persons’ as used in S 34 simply means

more than one person that is two or more than two people.

II. They must have a ‘common intention’ to commit an offence: ‘common intention’

means a prior meetings of minds, a pre-conceived design or plan. It is then alone that all

participants in the crime can be said to have the common intention to commit the crime.

The term ‘common intention’ should not be confused ‘similar or same intention’.

III. Participation by all the accused in doing act or ‘acts in furtherance of that common

intention’. The third ingredient is that the act must be done in the furtherance of the

common intention. The act must be done in the furtherance of the common design, there

should be a general intention shared by all of them. In the reverse, it means that if some

people take part in the commission of the crime but they have no common intention of

design, there is no joint liability. It can happen that to begin with there was no common

intention, but it may be formed in the course of events or at the spot. Common intention

can also be inferred from the conduct.

If these conditions are satisfied then, all the accused would be equally liable for the offences

committed by them.

COMMON INTENTION MAY ALSO DEVELOP ON THE SPOT – 4 (1869) 2 BLR 44 (PC).

14

In order to attract Section 34 of the Code, there must be a pre-arranged plan and meeting of

minds which may also develop on the spot. The conduct of accused preceding, attending the

following the occurrence is relevant to find out as to whether he had shared the common

intention.

CONVICTION OF ONE AND ACQUITTAL OF OTHERS –

Section 34 can be invoked even in those cases where some of the co-accused may be

acquitted, provided it can be proved either by direct evidence or inference that the accused

and others have committed an offence in pursuance of a common intention of the group. If

there are only two persons charged under Section 34/302 for committing the murder, and one

is acquitted, the other cannot be convicted unless it is proved that death was caused by him

alone.

If a person who has at no time played any part in the act charged cannot be held guilty by

virtue of this section. The totality of the circumstances must be taken into consideration in

arriving at the conclusion whether the accused has a common intention to commit an offence

with which they can be convicted. Though it is difficult but not impossible to procure direct

evidence of common intention, yet in some cases it can be inferred from the act as conduct of

the accused with other relevant circumstances.

For instance, in Wasim Khan v. State of UP,5it was held that a single accused could also

be convicted by reason of the application of Section 34, even if all his co-accused were

acquitted provided it was established beyond doubt that such an accused shared the

common intention to commit a crime only ? Did they participate in the commission of a

crime? If on the evidence on record, such intention and participation are established, there

is nothing illegal in their conviction under Section 34 I.P.C.

In the instant case, twelve accused persons were charged under Secs 302/34 IPC, on the

ground that they attacked and killed three brothers who were working in a field. The

Supreme Court upholding the conviction of the appellants observed that, if conditions for

the application of Section 34 do exist, it is immaterial in such a case whether the

prosecution has or has not succeeded in proving who gave the fatal blow or blows.

5 AIR 1956 SC 400.

15

In the case of Kirpal Singh v State of UP,6 the Supreme Court held that acquittal of some

joint persons on the ground that they did not share the common intention, would not

suffice to acquit others. The facts of the case were as follows: there was long standing

enmity between the accused and the deceased ‘X’. One morning the accused while

working on their field saw that some laborers were going towards field of ‘X’. The

accused shouted at the laborers to come to them, but the laborers paid no heed.

Thereupon, the accused began beating the laborers. In the meantime, ‘X’ arrived and

intervened. But, even he was attacked by the accused. Some hit him on the leg. ‘A’

stabbed ‘X’ on the head and ‘X’ died on the spot. A’s act was deliberate and was

convicted for the charge of murder. The other accused were convicted under sections

326/34 and not under Secs 302/34 as their common intention could be to cause injury

with the weapons and not to kill.

In Maina Singh v. State of Rajasthan,7 the accused was prosecuted along with other four

accused for committing murder under section 302 read with section 34, IPC. The other

four accused were given benefit of conjointly with some other named or unnamed

persons; there would be no conviction under section 302. In this case all co-accused were

acquitted and there was no evidence that the accused acted conjointly with some other

persons unnamed by the prosecution.

In Krishna v Maharashtra8, four persons were charged for murder under Section 302

read with section 34 of the IPC. Three of them were acquitted and only fourth one was

convicted by the High Court. The Supreme Court held his conviction as wrong and

observed as follows:

“The effect of the acquittal of three was that they did not conjointly act with

the ‘fourth accused in committing the murder. If that was the case, the fourth

accused in committing the murder. If that was the offence conjointly with the

acquitted persons.”

Therefore, on a perusal of the above cases the law on the subject may be stated as follows:6 AIR 1954 SC 7067 AIR 1976 SC 1084.8 AIR 1963 SC 1413.

16

i. Where more than one persons are charged to have committed an offence conjointly in

furtherance of common intention of all of them and some of them are acquitted but more

than one are convicted, the conviction will be justified provided the convicted share the

common intention.

ii. But if only one is convicted and all others are acquitted conviction will be bad unless he

is proved by evidence to have committed the offence conjointly with some other persons

whether named or unnamed by the prosecution.

EFFECT OF ACQUITTAL OF ONE OF CO-ACCUSED –

Even if one of the co-accused is acquitted, that does not by itself absolve other co-accused of

their conjoint liability of the crime.9 The law is that in spite of acquittal of one co-accused, it

is open to the Court to convict the other accused on the basis of joint liability under Section

34, IPC if there is evidence against them of committing the offence in furtherance of the

common intention.”

B. SECTION 300 (Murder)

It deals with the cases where culpable homicide is murder. Therefore, an offence cannot

amount to murder if it falls within the definition of culpable homicide. Murder includes

culpable homicide, but a culpable homicide may or may not amount to murder.

In Ramashraya and another v. State of Madhya Pradesh,10 on 19-12-1987 when the

deceased Ajeet and his son Laljee were doing some work in their paddy field, the

appellants came there in their bullock cart. It was alleged that the appellants wanted to

drive their bullock cart through the tewda filed of the deceased which was objected to by

him and there ensued a quarrel between Ajeet and the appellants. Appellant Kripa Ram

tried to hit the deceased on his head but the blow fell on the shoulder of the deceased.

Seeing this, Laljee came near his father, the deceased, to save him, but Ajeet shouted

“runaway son, they are waiting for you, do not come this way.”

According to prosecution, both the appellants inflicted severe injuries on the deceased

9 Y. Venkaiah v. State of A.P (2009) 3 Cr L.J. 2834 (SC) at p. 2839.10 2001 Cri. L.J. 1452 (SC).

17

Ajeet and he fell down on the ground. Seeing the altercation and beating being given to

his father, Laljee ran away and on the way met Hirday Kumar. They returned to the place

of incident and saw Ajeet lying dead on the ground. The appellants were convicted under

section 300/34, IPC. The counsel for the appellants argued that there was no

premeditation and the quarrel took place all of a sudden pursuant to a wordy altercation

and the appellants had not taken undue advantage, therefore the offence committed will

not amount to murder but would amount to offence under section 304, Part II, IPC. It was

held by the Supreme Court that though there was sudden quarrel, series of injuries were

caused by accused on skull and all over the body of deceased. Both accused had brutally

attacked the deceased; hence intention to cause death can be inferred from nature of

injuries. Therefore the requirements of clause third of section 300, IPC are fulfilled and

the conviction of accused persons under section 300 read with section 34 was held to be

proper.

C. SECTION 302 (Punishment for Murder)

S. 302 states that: “Whoever commits murder shall be punished with death or imprisonment

for life and shall also be liable to fine.”

Death or Imprisonment for life:-

S. 302, I.P.C prescribes an alternative punishment of either death or imprisonment for life

with fine if an accused is found guilty of murder. It may be noted that the Indian Penal Code

(Amendment) Bill, 1972 prescribed the sentence of imprisonment for life as a rule for murder

and death sentence as an exception to be accorded in only limited cases.

Whoever commits murder shall;

i. If the murder has been committed after previous planning and involves extreme brutality

ii. If the murder involves exceptional depravity

iii. If the murder is of a member of any armed forces of the Union or any police force or of

any public servant whose duty it is to preserve peace and order in any area or place, while

such member or public servant is on duty

iv. If the murder has been committed by him, while under sentence of imprisonment for life,

and such sentence has become final, be punished with death or imprisonment for life and

shall also be liable to fine.

HOLDING BY THE COURT –

18

The judgment was delivered by Justice B.P. Singh.

The Court held that the facts of the instant case are quite different from the ones that were

taken plea of, by the learned counsel of the appellants.11

The learned judges in their judgment for the said case opined that the facts herein were

eloquent and the role played by Bal Mukund Rastogi of preventing the prosecution

witnesses from going to the rescue of the deceased was the role played by him with a

view to achieve the ultimate objective of killing Shankar Rastogi.

With regards to the argument raised by the learned counsel of appellants, that the

grandchild of the informant who first came and reported to his grandmother about the

dacoits that had entered the shop, was not examined by the prosecution. In view of this,

the Court ruled that the failure of the prosecution to examine the grandchild does not in

any manner adversely affect the prosecution case, particularly when a large number of

witnesses who are found to be reliable have supported the case of the prosecution.

The Court was not persuaded by the defence case that no such occurrence took place and

that Shankar Rastogi was killed in the course of dacoity.

The fact that the accused had reasons to be unhappy with the conduct of the deceased and

his father, cannot be disputed as earlier in the evening, Nandji administered a warning to

the informant. The evidence on record therefore leaves no room for doubt that relations

between appellants and the deceased were strained.

The Court also ruled that no opportunity was available for the prosecution to concoct a

false case, as the FIR was lodged promptly and soon after the incident took place.

The Court hardly found anything in the cross-examination of the witnesses which may

cast a doubt upon the truthfulness of their testimony. It upheld that they are natural

witnesses and have deposed in a forthright manner.

Entire evidence was read into and the critical scrutiny of the evidence on record

undertaken by the Trial Court and the High Court was appraised.

In view of this, the apex court found no reason to interfere with the findings recorded by

the Trial Court and the High Court.

The appeal was dismissed as the court did not find any merits in it.

CRITICAL APPRAISAL

11 Supra N. 1 & 2.

19

“A perusal of the above case shows that to invoke section 34, prior concert or a

pre-arranged plan has to be established. Though common intention has to be

inferred from the act or conduct of the accused and other relevant circumstances,

it is not necessary that any overt act must have been done by any particular

accused. It would be enough if the criminal act has been done by one of the

accused in furtherance of the common intention. The common intention must be to

commit the particular crime although the actual crime may be committed by any

one sharing the common intention and then all others can be held guilty of the

crime.

In light of the above statement, I would firstly point about the judgment delivered by

Additional Sessions Judge. On a careful consideration of the facts of the instant case law, I

opine that the judgment was rightly delivered and the conviction and life sentence of the

accused cannot be questioned into. All five accused persons came to the shop of the

informant with a common intention to commit murder of informant’s son and forthwith, they

acted pursuant to a pre-arranged plan. Hence, three of them were liable to be convicted for

life imprisonment under Section 302/34, IPC and one year rigorous imprisonment under S.27

of the Arms Act. Two others were acquitted, as they were merely present at the crime scene,

but acted passively.

The three convicted appealed before the High Court of Patna but their appeals laid dismissed

by a common judgment and order. Therefore, I’m of the opinion that the affirmation of their

sentence has been rightfully upheld.

Three special leave petitions were preferred before the apex court by the three convicts.

However, the special leave to appeal was granted to only two accused brothers. This was

because the third convict did not surrender to his sentence. In lights of the facts and

circumstances of the present case and aforesaid reasons, the Supreme Court held that there

was no basis for it to interfere with the conviction of appellant brothers. They were rightfully

convicted.

LATEST JUDGEMENTS

20

NAND KISHORE V. STATE OF MADHYA PRADESH12

The case deals with the common intention under S 34 of IPC.

The facts of the case were: The deceased came alone and unarmed, to the house of

accused “M” to demand back his dues. Outside the site, two other accused “D” and

“N” got together.

All the three accused became aggressive.

Accused “M” caught hold of the arms of the deceased; “D” gave a knife blow on his

chest, whereas “N” threw stones on the him. After this, he fell on the ground.

Deceased died on the spot.

The court held that the accused should be convicted and sentenced to life

imprisonment with the aid of Section 34 of the IPC, as the common intention was

formed by the three accused on the spot itself as opposed to a pre-arranged plan.

SATISH KUMAR V. STATE OF PUNJAB13

The case deals with Section 304 Part II and Section 302 of IPC by virtue of Section

34.

In the instant case, the deceased and accused who was his contractor worked together.

Deceased had gone to the house of the accused and an altercation took place between

them, all of a sudden.

The accused picked up a wood log from nearby hearth and gave one blow on the head

of the deceased but made no use of any sharp edged weapon available in the hut.

Inference can be drawn is that the accused did not intend to commit murder nor did he

inflict such an injury which is in the ordinary course of nature and the same was

sufficient to cause death.

Conviction of accused under Section 302 of IPC converted to offence under Section

304 Part II of IPC.

Life imprisonment was set aside and the accused was convicted and sentenced to six

years of rigorous imprisonment.

Having undergone the detention period already, during the investigation, trial &

during pendency of this appeal after conviction, the rigorous imprisonment was set

aside.

12 2011(3) RCR (Criminal) 658 (SC).13 2010(1) RCR (Criminal) 586 (P & H) (DB).

21

SARABJIT SINGH V. SUMANDEEP SINGH14

This case invokes S.302/34 [Murder-Common Intention]

There are ample evidence on record to invoke the complicity of petitioners in the

commission of heinous crime of murder, whether the accused have committed murder

of the deceased or whether he died in a road accident or the petitioners have falsely

been implicated due to enmity between both of them or police have converted it into a

road accident under the influence of the accused etc would serve as moot points.

Here, petitioners have been falsely implicated and there’s no evidence against them.

Held that this case was not dealing with common intention, thus, after careful

consideration of evidence on record, petition was quashed, and summons order was

dismissed.

BIBLIOGRAPHY STATUTES

14 2012(2) RCR (CRIMINAL) 149 PUNJAB AND HARYANA.

22

• Indian Penal Code, Bare Act

BOOKS

• K.D.Gaur, Indian Penal Code, 1860

• S.N. Mishra, Indian Penal Code, 1860

WEB SOURCES

• www.legalservicesindia.com

• www.vakilno1.com

• www.indiankanoon.org

CRIMINAL LAW JOURNAL, 2002.