Bhagwati Prasad (in Jail) vs State

Vishnu Sahai, J.—Through these appeals Bhagwati Prasad (hereinafter also referred to Bhagwati) and Natthu Ram (hereinafter also referred to as ''Natthu'') challenge the judgment and order dated 25.3.1981, passed by I Ind Additional Sessions Judge, Lucknow, in Sessions Trial No. 283 of 1979 whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302/34, I.P.C. and Appellant Bhagwati has been convicted and sentenced to undergo three months R.I. for the offence punishable u/s 323, I.P.C. The sentences of Bhagwati have been directed to run concurrently.

Shortly stated the prosecution case runs as under:

The deceased Babu Lal was the grandson of one Mst. Gurdei. At the time of the incident, he was living along with his grandmother Smt. Gurdei in Mohalla Barauliya within the limits of police station Hasanganj, district Lucknow. About two years prior to the incident, Gurdei, who had only three daughters (deceased was the son of her daughter Ram Piari), had sold her land to one Bachchan Singh. The outlet of this land was by the side of the house of Appellant Natthu Ram alias Natthu. There was a dispute regarding passage between Bachchan Singh and Natthu. A panchayat was held but Natthu had not given passage to Bachahan Singh ; instead he had fixed his Chapper thereon. Since the deceased used to manage the property of Gurdei, Appellant Natthu Ram alias Natthu and his cousin brother Appellant Bhagwati nursed ill-will against him.

On 18.7.1979 at about 10 a.m. when Babu Lal was proceeding towards his house and had reached in front of the door of Deep, Appellant Natthu Ram alias Natthu armed with knife and Appellant Bhagwati armed with a lathi, came from the side of the house of the latter. At that time, informant Jagannath Prasad, P.W. 1 was standing at the door of his house. Natthu Ram alias Natthu and Bhagwati instigated "Aaj Sala Mouke Se Mil Gaya Hai, Ise Maar Diya Jaye" (today we have found him, he should be killed). Thereafter, both of them assaulted Babu Lal with their weapons. Natthu inflicted a knife blow on the stomach of Babu Lal. In the meantime, one Lachchoo, who was present nearby, caught hold of the collar of Natthu and told him whether he would kill Babu Lal. Getting opportunity, Babu Lal ran and entered inside the house of Mehi Lal, (father of the informant Jagannath). Appellant Natthu also entered therein and with a knife started assaulting Babu Lal and Appellant Bhagwati armed with a lathi stood at the door. When informant Jagannath Prasad tried to rescue Babu Lal, Bhagwati warned him that in case he proceeded further, he would meet the same fate. When the informant proceeded to save Babu Lal, Bhagwati inflicted a lathi blow, which struck him on his leg. Thereafter Babu Lal came out from inside the house. Natthu continued assaulting him. Hearing cries of the informant Jagannath, Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5, Munna P.W. 10 and some others came out and they also saw the incident. On being reprimanded by the witnesses, Appellants ran away.

Thereafter one Shashi-bhushan Pandey rushed Babu Lal, who was precariously injured, to Balrampur Hospital, Lucknow and informant Jagannath proceeded to police station Hasanganj, where he lodged his F.I.R.

The evidence of constable Mohan Misra, P.W. 8 shows that on 18.7.1979, he was posted as constable moharir at police station Hasanganj, Lucknow and on the said date at 10.30 a.m. Jagannath came and lodged his written report Ext. Ka-1, on that basis of which he prepared the chik F.I.R. Ext. Ka-13. A perusal of the chik F.I.R. shows that the distance between the place of incident and police station Hasanganj was four furlongs and on its basis a case u/s 307/323, I.P.C. was registered against the Appellants.

The evidence of S.I., K. K. Singh, P.W. 11 shows: On 18.7.1979 at 10.30 a.m. F.I.R. was lodged in his presence. He recorded the statement of the informant and thereafter sent him for medical examination to Balrampur Hospital with Constable Chandra Shekhar. He then proceeded to the place of incident where he recorded the statement of Chandra Bhushan Srivastava, P.W. 5, Smt. Bhagtin and Smt. Lachchoo. He then prepared the site plan on the pointing out of the witnesses. From the place of incident, he recovered blood stained and plain earth, in separate containers, under recovery memos. At about 12.30 noon, he proceeded to the house of the Appellant Natthu in the hope that the knife may be recovered from there. However, Natthu was not found in his house. He then recorded the statement of Bachchan Singh and some others. Thereafter he proceeded to Balrampur Hospital, where he met witness Shashibhushan Pandey, whose statement he recorded. He then recorded the statement of deceased Babu Lal Ext. Ka-18.

Since statement of Babu Lal is a dying declaration in terms of Section 32 Indian Evidence Act, we propose giving a gist of it. In his statement, he stated: From his childhood, he lived with his grandmother and used to look after her, as also her land. She sold her field situated in the eastern direction to Bachchan Singh and the way to the said field was from the side of the house of Natthu, who did not give him any passage and instead installed his Chapper there. Since, he was managing his grandmother''s land, Natthu nursed ill-will against him and on the date of incident at 10.00 a.m., while he was going for work to the house of Mehi Lal Chaudhari and had reached near the house of Deep, Natthu with a knife and Bhagwati with a lathi surrounded him. Natthu instigated that he be killed and thereafter started inflicting knife blows on him. Lachchu, who was there, caught hold of his collar and said are you going to kill him. In the meantime, getting opportunity he ran and entered inside the house of Mehi Lal. Natthu and Bhagwati also reached there. The latter inflicted knife blows on him and when Mehi Lal''s son Jagannath tried to save him, Bhagwati assaulted him with lathi and shouted that if any one came forward it would not be good for him. In the meantime, he came out from the house. Natthu and Bhagwati caught hold of him and former inflicted knife blows on him. Thereafter they ran away.

Going back once again to the evidence of S.I., K. K. Singh, we find that it shows: After recording the statement of Babu Lal at 4.00 p.m. the same evening, he arrested Appellant Bhagwati from the Ikka stand in Daliganj and at 6.35 p.m. lodged him in the Hawalat of police station Hasanganj. On 19.7.1979, Babu Lal succumbed to his injuries and thereafter the case was converted from one u/s 307, I.P.C. to that u/s 302, I.P.C. He asked the S.I., Gangabux Singh, P.W. 7, to perform the inquest. On 20.7.1979, he recorded the statement of the witnesses of the inquest. On the said date, Ram Piari, the mother of the deceased handed over the blood stained clothes of the deceased namely bushirt, baniyan and underwear to him. On 21.7.1979, Appellant Natthu surrendered in the Court. On completion of the investigation he submitted charge-sheet against the Appellants.

Once again going backwards, injuries of Jagannath were medically examined on 18.7.1979 at 2.30 p.m. by Dr. R. P. Shukla, Medical Officer, Balrampur, who found on his person a contusion 3 cm. x 2 cm. on medial aspect of right leg, 4 cm. below right ankle joint, which was simple, fresh and attributable to blunt weapon.

It is significant to mention that at the time of recording of evidence Dr. Shukla had gone on training and the injury report of Jagannath was proved by Dr. R. K. Tandon, P.W. 6, who had seen him writing and whose signature he recognised.

Once again going backwards, the life-time medical examination of Babu Lal was conducted on 18.7.1979 at 10.30 a.m. by Dr. V. S. Nigam, P.W. 3 at Balrampur Hospital, who found on his person the following injuries:

(1) Incised wound 3 cms. x 1 cm. x scalp deep on right temple.

(2) Incised wound 5 cm. x 0.5 cm. x scalp deep on right side of back of head, 5 cm. above right ear.

(3) Incised wound 2 cm. x 0.5 cm. x skin deep behind right ear.

(4) Incised wound 1 cm. x 0.5 cm. on back of right ear.

(5) Incised wound 6 cm. x 2 cm. on right side abdomen. Viscera and omentum projecting out from the wound. U.O.

(6) Incised wound 5 cm. x 5 cm. on inner side of right upper arm 6 cms. above the elbow.

In the opinion of Dr. Nigam, excepting injury Nos. 4 and 5 the injuries were simple ; all the injuries were fresh ; and caused by sharp edged weapon.

It is pertinent to mention that in the injury report Ext. Ka-4 Dr. Nigam has mentioned that a detailed examination was not possible because the condition of Babu Lal was very serious.

It is pertinent to mention that on 18.7.1979 at 2.45 a.m. Babu Lal was operated by Dr. R. K. Tandon, Medical Officer, Balrampur Hospital but the surgery could not save him and he succumbed to his injuries on 19.7.1979 at 2.35 p.m.

The autopsy on the corpse of Babu Lal was conducted on 20.7.1979 at 5.00 p.m. by Dr. R. K. Sachan, P.W. 2, who found on it the following ante-mortem injuries:

(1) Stitched wound 5 cm.-seven stitches, on the head right side, 1 cm. away and above the right eye brow.

(2) Stitched wound 3.5 cm.-3 stitches on the head, right side 6 cm. away from the right ear.

(3) Incised wound 1.5 cm. x .5 cm. x bone deep, just above the right ear.

(4) Stitched wound 7 cm. x seven stitches, on the right upper arm, 5 cm. away and above the right elbow joint.

(5) Stitched wound 1.5 cm. one stitch, on the front of right wrist.

(6) Stitched wound 6.5 cm. 4 stitches, on the back of left elbow.

(7) Incised wound 1.5 cm. x .5 cm. x bone deep, on the left thumb terminal phalanx Palmer aspect.

(8) Incised wound 2 cm. x 5 cm. x bone deep on the left ring finger on the Palmer aspect terminal phalynx.

(9) Incised wound 1 cm. x .5 cm. x muscle deep on the left little finger on Palmer aspect and on terminal phalynx.

(10) Incised wound 2.5 cm. x 1.4 cm. x skin deep, near the eminence on the Palmer aspect.

(11) Stitched wound 17 cm.-11 stitches on the middle of the abdomen, 5 cm. below the epigastrium.

(12) Stitched wound 7 cm.-7 stitches, 1.5 cm. towards right side from injury No. 11, on the abdomen.

(13) Stitched wound 2 cm. x 1 cm. x .5 cm. drainage tube is out from the wound, on the left abdomen.

(14) Incised wound 1.5 cm. x .5 cm. x 2.5 cm. drainage tube is out from the wound, 5.5 cm. away and above the right iliac crest right side of the abdomen.

(15) Stitched wound 3.5 cm.-3 stitches on the back, near scapula.

(16) Stitched wound 5.5 cm.-5 stitches 9.5 cm. lower down to injury No. 15 on the back.

(17) Stitched wound 4 cm. one stitch on the back of the left scapula.

(18) Stitched wound 5.5 cm.-five stitches, on the back of right scapula. .5 cm. below the injury No. 17 on opening abdomen liver is incised 2 cm.-3 stitches, stomach has stitched wound 8 stitches peritoneum stitched in 3 cm. length 3 stitches, opening the injuries on head, they are muscle deep. Injury on the back muscle deep hand muscle deep.

On internal examination Dr. Sachan found liver and stomach cut.

The cause of death spelt out in the post-mortem report is peritonitis and septicaemia as a result of abdominal injuries suffered by the deceased.

In the trial court, Dr. Sachan stated that the incised wounds were attributable to a knife and he could not opine with which weapon stitched wounds were caused. He also stated that the injuries were sufficient in ordinary course of nature to cause the death and the deceased could have died as a result therefrom on 19.7.1979 at 2.35 p.m.

The case was committed to the Court of Sessions in the usual manner where Appellant Natthu was charged for the offence punishable under Sections 302, I.P.C. (in the alternative 302 read with Section 34 I.P.C.) and 323 read with 34, I.P.C. and Appellant Bhagwati was charged for the offence punishable under Sections 302/34 and 323, I.P.C.

During trial, in all, prosecution examined eleven witnesses. Four of them, namely, Jagannath Prasad Chaudhary, P.W. 1, Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5 and Munna, P.W. 10 were examined as eye-witnesses.

In defence, three witnesses, namely, Mohd. Yasin, Satya Ram Verma and Shiv Nath Singh were examined. They were working in the Police Control Room at Qaiserbagh, Lucknow and were examined to show that on 18.7.1979 at 12.15 noon Inspector of Police Station, Hasanganj, Lucknow, furnished information, which was recorded vide Ext. Ka-2. The object of the defence in examining these witnesses was to show that since according to the prosecution after lodging of the F.I.R. information was sent to the Control Room, the F.I.R. was not lodged at 10.30 a.m. but later.

The learned trial Judge believed the evidence of the eye-witnesses and convicted and sentenced the Appellants in the manner stated in para 1.

Hence, these appeals.

We have heard learned Counsel for the parties and perused the entire record and are constrained to observe that we do not find any merit in these appeals.

As would become manifest from the above, prosecution has examined four eye-witnesses to prove the guilt of the Appellants ; they being Jagannath, P.W. 1, Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5 and Munna, P.W. 10. In our view, the evidence of the said witnesses inspires confidence.

We now propose giving our reasons for reaching the said conclusion. We would like to begin with the evidence of Jagannath Prasad Chaudhary, P.W. 1. Since in para 2, we have set out the prosecution story on the basis of the recitals contained in the examination-in-chief, we do not want to burden our judgment by reiterating the details. In short his evidence shows: There was ill-will between Babu Lal on one hand and Appellant Natthu on the other (in para 2 we have referred to it). Appellant Bhagwati was the uncle''s son of Appellant Natthu. On 18.7.1979 at 10.00 a.m. when deceased Babu Lal was coming from the side of his house and had reached near the door of Deep, Appellant Natthu with a knife and Appellant Bhagwati with a lathi came from the house of the latter. At that time he was standing at his door. They instigated that the deceased Babu Lal be killed. Thereafter they launched an assault on him. Smt. Lachoo, who has nearby caught hold of the collar of Natthu and told him whether he wanted to kill Babu Lal. Getting opportunity Babu Lal ran being chased by the Appellants and entered inside the house of his father (Jagannath''s father). Appellant Natthu too entered inside it and started assaulting him with knife. Appellant Bhagwati stood at the door of the house and told him that in case he tried to save Babu Lal, he would be killed. When he (Jagannath) tried to rush to rescue of Babu Lal, Bhagwati inflicted a lathi blow on his leg. Thereafter Babu Lal came out from the house and Appellant Natthu belaboured him. This incident was also seen by Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5 and Munna, P.W. 10. After assaulting Babu Lal and Jagannath, Appellants ran away. Thereafter he went to police station Hasanganj and handed over his written F.I.R. to constable moharrir Mohan Misra, who, the same day at 10.30 a.m., registered a case u/s 307/323, I.P.C. on its basis.

We have gone through the evidence of Jagannath and find that it inspires confidence.

In the first place it should be borne in mind that since his house is situated near the door of Deep, where the deceased Babu Lal was first assaulted, he is perfectly a natural witness of the incident.

Secondly, the manner of assault as furnished by him is substantially corroborated by the medical evidence. He stated that Natthu with a knife and Bhagwati with a lathi assaulted Babu Lal and we have seen that Dr. V. S. Nigam, who medically examined Babu Lal in his life time, found on his person six incised wounds. It is pertinent to mention that on account of precarious condition of Babu Lal Dr. Nigam did not conduct his detail medical examination. Again his evidence that Appellant Bhagwati assaulted him with the lathi on right leg, is corroborated by the presence of a contusion found on his right leg, which according to his injury report was fresh and attributable to a blunt weapon. It is pertinent to mention that Dr. R. K. Shukla, who medically examined him on the date of incident at 2.30 p.m. at the time of giving evidence had gone on training and Dr. R. K. Tandon, who operated upon Babu Lal on the date of the incident, itself has proved his injury report and stated that he has seen Dr. Shukla writing and is familiar with his handwriting.

It is true that neither the life-time medical examination report of Babu Lal nor his autopsy report show the presence of blunt weapon injuries but in his cross-examination, he has stated that the lathi blows did not strike Babu Lal.

Thirdly, his claim of having seen the incident is also borne out by the prompt F.I.R. of the incident lodged by him within half an hour of the incident taking place. (incident took place on 18.7.1979 at 10.00 a.m. and the F.I.R. was lodged at 10.30 a.m. the same day at police station Hasanganj, Lucknow) and in this F.I.R. the essential features of the prosecution case including:

(a) time and place of incident ;

(b) names of the Appellants ;

(c) weapons in the hands of the Appellants ;

(d) names of the victims ;

(e) manner of assault both on the deceased and him ;

(f) name of the informant and other witnesses ; and (g) motive for the incident.

have all been mentioned.

Fourthly, after he had lodged the F.I.R. the Investigating Officer, S.I., K. K. Singh, P.W. 11 recorded his statement u/s 161, Cr. P.C. at the police station, itself.

It is significant to mention that criminal courts attach great importance to the prompt interrogation of a witness and prompt lodging of the F.I.R. because the same substantially eliminate the possibility of embellishments and concoction creeping in the prosecution story.

We feel it pertinent to mention that although Jagannath was subjected to extensive cross-examination but nothing substantial could be extracted therefrom, which could render either his presence on the place of incident or credibility suspect.

For the said reasons, in our view, the evidence of Jagannath P.W. 1 inspires confidence.

We propose taking up the evidence of Shiv Prasad P.W. 4 and Munna P.W. 10. Their evidence shows: They are the residents of Mohalla Barwalia, Daliganj, Lucknow and on the date and time of the incident, were proceeding to the place of Mehi Lal (father of Jagannath) to order shoes. When they had reached Nehru Nagar, they saw deceased Babu Lal in front of them. When Babu Lal reached near the house of Deep Chand, from the eastern lane Appellant Natthu armed with a knife and Appellant Bhagwati with a lathi emerged. Natthu instigated that Babu Lal be killed and thereafter inflicted a knife blow on his stomach. One Smt. Lachchoo, who was there, caught hold of the collar of Natthu and asked him whether he would kill Babu Lal. In the meantime, Babu Lal ran. However, Natthu and Bhagwati chased him. Babu Lal entered inside the house of Mehi Lal, Natthu too went inside it and inflicted knife blows on him. Bhagwati stood at the said door. When they tried to rescue Babu Lal, he said that in case they came forward they would meet the same fate. When Jagannath proceeded further, Bhagwati inflicted a lathi blow on his leg. Thereafter when Babu Lal came out from the house, Natthu again assaulted him with knife. As a consequence of the assault, he fell down. This incident was also seen by Chandra Bhushan and Jagannath.

We have gone through the evidence of Shiv Prasad and Munna and find it to be reliable.

In the first place, they have explained their presence on the place of incident. They stated that while they were going to order shoes at the place of Mehi Lal (father of informant Jagannath) the incident took place.

Secondly, the manner of assault as furnished by them is corroborated by medical evidence. They stated that Appellant Natthu inflicted knife blows on Babu Lal and Appellant Bhagwati assaulted Jagannath with a lathi and we have seen both, the life-time medical examination report of Babu Lal and also his autopsy report show presence of a large number of knife injuries and the injury report of Jagannath shows that he sustained a lathi injury, i.e., a contusion.

Thirdly, in the prompt F.I.R. of the incident, their names are mentioned.

Fourthly, their statements u/s 161, Cr. P.C. were recorded the same day by the Investigating Officer S.I., K. K. Singh, P.W. 11.

It is pertinent to mention that although both these witnesses were subjected to extensive cross-examination but their credibility could not be impaired.

We feel it pertinent to mention that Shiv Prasad is a wholly independent witness, who had no rancour or ill-will against the Appellants and in our view in the absence of the same, would not have falsely implicated them.

It is true that a perusal of the statement of Munna, P.W. 10 shows that he is the son of Bachchan Singh, who had purchased land from Mst. Gurdei and consequently, it may be that he had a soft corner for the deceased Babu Lal, who was the grandson of Mst. Gurdei, but in our view, merely on account of this, his evidence cannot be mechanically rejected, instead would have to be scrutinised with caution. We have exercised the said caution and find it credible.

In our view, learned trial Judge acted correctly in accepting the evidence of Shiv Prasad P.W. 4 and Munna P.W. 10.

We now come to the evidence of the last eye-witness Chandra Bhushan Srivastava P.W. 5. His evidence shows: On the date and time of the incident after having studied from Shashi Bhushan, while he along with the latter was on the way to Yadava''s shop in Nehru Nagar to take tea and had reached in front of the house of Deep Chand, he saw Appellant Natthu with a knife and Appellant Bhagwati with a lathi. Natthu inflicted knife blow on the stomach of deceased Babu Lal. Smt. Lachchoo, who was there, caught hold of the collar of Natthu and asked him whether he wanted to kill Babu Lal. Getting opportunity Babu Lal ran inside house of Mehi Lal (father of Jagannath P.W. 1) being chased by Natthu and Bhagwati. Natthu also entered inside the said house and inflicted knife blows on his person. Bhagwati stood at the door of the house and challenged that in case they (Jagannath, Shiv Prasad and Munna, who had also reached there) proceeded further, they would also meet the same fate. When Jagannath went further, Bhagwati inflicted a lathi blow on him. Thereafter Babu Lal came out from inside the house of Mehi Lal and again Natthu inflicted knife blows on his person ; as a consequence of which, Babu Lal fell down. Then the Appellants ran away.

We have gone through the evidence of Chandra Bhushan Srivastava P.W. 5 and we find it to be credible.

In the first place, he has explained his presence on the place of incident. He stated that while he and his teacher Shashi Bhushan were on the way to take tea at the shop of Yadava of Nehru Nager, they saw the incident.

Secondly, the manner of assault furnished by him is corroborated by medical evidence. He stated that Natthu assaulted Babu Lal with a knife and Bhagwati assaulted Jagannath with a lathi and we have seen that medical evidence shows large number of incised wounds on the corpse of Babu Lal and a contusion on the person of Jagannath.

Thirdly, he is named in the F.I.R. and was interrogated by the Investigating Officer, S.I. K. K. Singh, P.W. 11 on the date of the incident, itself.

It is significant to mention that although he was subjected to an extensive cross-examination but his veracity could not be shaken.

It is pertinent to mention that he is a wholly independent witness, who had no rancour or ill-will against the Appellants and in our view, in the absence of the same, would not have falsely implicated them.

Hence we believe the evidence of Chandra Bhushan Srivastava P.W. 5.

For the aforesaid reasons, in our view, the testimony of Jagannath Prasad, P.W. 1, Shiv Prasad, P.W. 4, Chandra Bhushan Srivastava, P.W. 5 and Munna, P.W. 10 inspires confidence and establishes the prosecution case against the Appellants to the hilt.

We may mention that there is another piece of evidence, which incriminates the Appellants, namely, the statement of deceased Babu Lal recorded by S.I., K. K. Singh P.W. 11 but since the Apex Court in some decisions has held that it is not safe to act on it and the trial court has not taken it in consideration for determining the guilt of the Appellants, we are not considering it.

We would be failing in our fairness if before proceeding to the operative part of the judgment, we do not advert to the three main submissions canvassed by the Appellants'' counsel. He firstly contended that the prosecution case that the F.I.R. was lodged on 18.7.1979, at 10.30 a.m. cannot be believed. He urged that it was lodged sometimes at about 12 noon on the said date. In this connection, he invited our attention to para 5 of the statement of informant Jagannath Prasad. He pointed out: In the said paragraph the informant Jagannath admitted that he reached the police station within five minutes of the incident taking place and informed the Station Officer that the Appellants had killed Babu Lal. Thereafter, the Station Officer along with constables in a vehicle took him (informant Jagannath) to the place of incident and when the vehicle returned from the hospital, he scribed the F.I.R. at 12 noon.

It is true that the informant made the aforesaid statement in para 5 but, in our judgment, para 5 has to be read in entirety. In the earlier part of the said paragraph, the informant Jagannath has categorically stated that after the incident, he proceeded to the police station, where he scribed his F.I.R. and lodged the same. It is pertinent to mention that the evidence of head moharrir Munna Misra, P.W. 9 (he registered the case on the F.I.R.) and S.I., K. K. Singh, P.W. 11 also makes it crystal clear that the F.I.R. was lodged at 10.30 p.m. In our judgment the statement of Jagannath (referred to earlier) appears to have been made under some confusion or as observed by the learned trial Judge, he deliberated made it to help the accused.

In our judgment, even if it is assumed for arguments sake that the F.I.R. was lodged at about 12 noon, it would not make any difference because in our view, between the time of lodging of F.I.R. and credibility of eye-witnesses (other than the informant) there is no nexus and so far as the claim of the informant Jagannath of having seen the incident is concerned, the same is clinched by his injury.

For the said reasons, we do not find any merit in this submission.

Secondly, learned Counsel for the Appellants contended that the time of arrest of Appellant Bhagwati is shrouded in mystery. He pointed out that the evidence of the informant shows that within five minutes of the incident taking place, he had informed the Station Officer and he along with him and constables, came in a vehicle to the place of incident, where Bhagwati was arrested. He contended that this is contradictory to the evidence of S.I., K. K. Singh P.W. 11 who in his examination-in-chief (in para 3) stated that he arrested Bhagwati at Ikka Stand, Daliganj at 4 p.m. on the date of incident. To us, it appears that on account of some confusion, the informant has stated that Bhagwati was arrested on the place of incident and the evidence of the Investigating Officer appears to be more credible.

At any rate, we feel that nothing would turn on this.

Finally, learned Counsel for the Appellants contended that the learned trial Judge erred in convicting the Appellant Bhagwati for the offence punishable u/s 302/34, I.P.C. He canvassed this submission on the following grounds:

(a) according to the F.I.R. and the statement of the eye-witnesses Shiv Prasad, P.W. 4 and Munna P.W. 10, it was Appellant Natthu, who instigated that the deceased be killed and not the Appellant Bhagwati and the evidence of the informant Jagannath and Chandra Bhushan Srivastava in terms that he has also instigated, cannot be believed ; and

(b) according to the F.I.R. and statement of eye-witnesses Shiv Prasad P.W. 4, Chandra Bhushan Srivastava, P.W. 5 and Munna, P.W. 10, it was only the Appellant Natthu, who assaulted the deceased with a knife and the Appellant Bhagwati did not assault him and, therefore, the evidence of the informant Jagannath that he assaulted him (deceased) with lathi cannot be believed.

Learned Counsel for the Appellants contended that had the Appellant Bhagwati shared the common intention with the Appellant Natthu to commit the murder of the deceased Babu Lal, he would have inflicted lathi injuries on his person and would not have been satisfied by merely inflicting a solitary lathi blow on the right leg of the informant.

Consequently, he urged that against the Appellant Bhagwati, only an offence punishable u/s 323, I.P.C. would be made out.

We have examined the said contention and are constrained to observe that it is devoid of merit.

Section 34, I.P.C. reads thus:

Act done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Its perusal shows that for its application, two pre-requisites have to be satisfied:

(a) a criminal act should be committed by several persons, i.e., by more than one person ; and

(b) the said criminal act should be committed by them in furtherance of their common intention.

It is only when (a) and (b) co-exist, would the said persons be liable for it, as if it was done by them alone.

In our view, the expression "in furtherance of common intention" as used in Section 34, I.P.C. in offences pertaining to human body, does not necessarily connote that several persons should assault the victim, in respect of whom the inference of common intention is sought to be raised. In our judgment, if facts and circumstances in a given case lead to the inference that the offence was committed by them in furtherance of their common intention, the inference of common intention within the meaning of Section 34, I.P.C. can be raised against them ; despite the fact that the aforesaid several persons did not assault the victim. In other words, the answer to the question whether an act was committed by several persons in furtherance of their common intention, would depend on the facts and circumstances of a given case.

We are constrained to observe that the facts and circumstances of this case irresistibly lead to the inference that the murder of the deceased was committed by Appellants Natthu and Bhagwati in furtherance of their common intention. We have reached this conclusion for the reasons mentioned hereinafter:

(a) Appellant Natthu armed with a knife and Appellant Bhagwati armed with a lathi on seeing the deceased, came together from the house of the latter ;

(b) both Natthu and Bhagwati chased the deceased to the door of Mehi Lal''s house ;

(c) Natthu followed the deceased inside Mehi Lal''s house where he assaulted him with a knife and Bhagwati stood at the door warning the witnesses not to enter ;

(d) when Jagannath, P.W. 1 proceeded to the rescue of the deceased, Appellant Bhagwati inflicted a lathi blow on his right leg ; and (e) after killing the deceased, both Appellants Natthu and Bhagwati ran away together.

In our judgment, circumstances (a) to (e) make it crystal clear that the murder of the deceased Babu Lal was committed by the Appellants Natthu and Bhagwati in furtherance of their common intention, in terms of Section 34, I.P.C. Hence, this submission also fails.

In the result:

(A) Criminal Appeal No. 244 of 1981 is dismissed. The conviction of the Appellant Natthu Ram alias Natthu for the offence punishable u/s 302/34, I.P.C. and the sentence of imprisonment for life awarded to him, thereunder, is confirmed.

Appellant Natthu Ram alias Natthu is on bail. He shall be taken into custody forthwith to serve out his sentence.

(B) Criminal Appeal No. 223 of 1982 is dismissed. The convictions of Appellant Bhagwati Prasad alias Bhagwati on both the counts, namely under Sections 302/34 and 323, I.P.C. and the sentence of imprisonment for life and three months R.I. respectively awarded to him, thereunder, are confirmed.

Appellant Bhagwati Prasad alias Bhagwati is on bail and shall be taken into custody forthwith to serve out his sentence.