Nandu Rastogi @ Nandji Rastogi and Another vs State of Bihar

B.P. Singh, J.—The appellants in these appeals, namely, Nadu Rastogi @Nandji Rastogi and Bal Mukund Rastogi are brothers. Theyalongwith one Jagdish Chamar and Mohan Singh were put up fortrial before the 2nd Additional Sessions Judge, Rohtas at Sasaram,who found the appellants and Jagdish Chamar guilty of the offenceunder Section 302/34 IPC and u/s 27 of the Arms Actbut acquitted Mohan Singh. They were sentenced to undergoimprisonment for life u/s 302/34 IPC and to undergorigorous imprisonment for one year u/s 27 of the ArmsAct. They preferred the appeals before the High Court but by acommon judgment and order, the High Court dismissed the appealsand affirmed their conviction and sentence. Three special leavepetitions were preferred before this Court but since JagdishChamar did not surrender to his sentence, his special leave petitionwas dismissed by order dated 3rd December, 2001 while specialleave to appeal was granted to the appellants herein.

The informant Shyam Mohan Rastogi, PW.4 is the uncle ofthe appellants being the cousin of this father. The deceasedShankar Rastogi was the son of the informant PW.4. It is allegedthat in an occurrence which took place at about 7.00 p.m. on12.11.1985 he was shot dead by appellant Nadu Rastogi. It is thecase of the prosecution that the three accused, alongwith twounknown persons, came armed with country made pistols andperpetrated the crime. According to the prosecution thebackground in which this occurrence took place and which alsodiscloses the motive for the offence is that the informant PW.4owned a house which he sold to one Braj Kishore Rastogi who inturn sold the said house to appellant Nandji Rastogi. ManjoorAnsari. PW.1 was the tenant of a shop in that building, but NandjiRastogi was pressurising him to vacate the premises. Shankar,(deceased) son of the informant took the side of Manjoor Ansariand declared that he will not permit Nandji Rastogi to forciblyevict him. He even threatened that he may challenge the sale ofthe house by his father since his father had no legal authority tosell his share in the house. It appears from the evidence on recordthat Manjoor Ansari is on good terms with the informant and hisfamily members and continued to occupy the shop premises evenon the date of occurrence.

The case of the prosecution as disclosed in the FirstInformation Report lodged by PW.4 at 8.00 p.m. on 12thNovember, 1985, soon after the occurrence, is that at about 5.00p.m. the informant was sitting in his shop, namely, Shankar Stores,alongwith his tenant Ayodhya Tiwari, PW.5 when Nandji Rastogicame there and warned the informant to caution his son that heshould not interfere in his mattes. He threatened that if he did notdo so his son may be killed. So saying, he went away threateningthe informant with dire consequences. At about 6.45 p.m.electricity supply was cut off when he was sitting in his shopalongwith one Shambhu Lal, his son Mukund, Manjoor Ansari,PW.1 and Shankar Rastogi (deceased) his son. Since it was thediwali day, candles and earthen lamps were lit in his shop andelsewhere. 15 minutes later appellant Nandji alongwith his brotherappellant Bal Mukund Rastogi, accused Jagdish Chamar and twoother unknown persons entered his shop armed with country madepistols. Nandji and Jagdish caught hold of his son and took himinside to the residential apartment which is just behind the shop, atgun point. When the informant and others wanted to intervene,they were prevented by appellant Bal Mukund Rastogi and hiscompanion who stood guard with country made pistols in theirhands. They threatened them to keep quite. After Shankar Rastogiwas taken inside the house by Nandji Rastogi, Jagdish Chamar andone other unknown person, he heard the report of gun fire followedby crying of women inside the house. An alarm was raised and theaccused fled away threatening them. When he went inside hefound his son bleeding and unconscious. People who had gatheredthere took the deceased to Kudra Hospital where he was declareddead.

After investigation four persons were put up for trialincluding the appellants, Jagdish Chamar and one Mohan Singh,who was acquitted by the trial court. The defence of the appellantswas that no such incident as alleged took place and that they hadbeen falsely implicated on account of some dispute over a commonwall. Suggestions were put to some of the witnesses that a dacoitytook place in the house of the deceased and in the course of thatdacoity the deceased was shot dead.

PWs. 1 to 5 are the witnesses examined by the prosecutionto prove its case. PW.6 Dr. Shyam Sunder Singh is the doctor whoperformed the post-mortem examination on the body of thedeceased at 10.00 a.m. on 13th November, 1985. The post mortemreport and his evidence leaves no manner of doubt that ShankarRastogi met a homicidal death. This was not even challenged bythe appellants. PW.7 is the investigating officer.

PW.1 Manjoor Ansari deposed that the was sitting withShambhu Lal, his son Mukund Lal, Shankar (deceased) and theinformant in the shop of the formant when 4-5 persons camearmed with country made pistols. He identified the appellants andJagdish Chamar. Nandji Rastogi, Jagdish Chamar and oneunknown accused took Shankar to the residential portion of thepremises from the shop where he was sitting. The residence of theformant is behind the shop in the same building. The remainingtwo persons namely Bal Mukund Rastogi and one unknownaccused prevented them from intervening in the mater. Soonthereafter he heard the sound of gun fire and thereafter the accusedfled Kamla Rastogi. PW.2, mother of deceased Shankar and wifeof the informant came out and informed them that Nandji had shotdead her son. This witness claims to have gone inside the houseand seen Shankar lying injured. He was removed to the hospitalwhere he was declared dead.

Kamla Rastogi, PW.2 is the mother of the deceased. She hasstated that she was in the kitchen when her grand son aged about10-11 years came and told her that dacoits had entered the shop.She rushed towards the shop but on the way she saw Nandu andJagdish holding her son, while one unknown person was standingbehind them. Nandu fired from his pistol injuring Shankar whofell down on the spot. She thereafter came out, met her husbandand informed him, but prevented him from going inside on accountof fear. She also met. Manjoor Ansari, Shambhu Lal and his sonMukund Lal etc. from whom she learnt that they were preventedfrom going inside by appellant Bal Mukund Rastogi and anotherperson.

Mritynjay Singh, PW.3 deposed that he was having tea at atea stall nearby when the lights went off. Soon thereafter he heardthe report of gun fire and rushed towards the house of theinformant. He saw 5 persons coming out of the house of theinformant armed with country made pistols. Out of them, heidentified the appellants and Jagdish Chamar.

Shyam Mohan Rastogi, informant in his deposition fullysupported the facts mentioned by him in the First InformationReport. He further stated that while he was trying to enter hishouse he was hit by an unknown accused on his head with the buttof the pistol. He further stated that Ayodhya Tiwari, PW.5 andMrityunjay Singh, PW.3 came soon after the incident. he alsoinformed the Court that Shambhu Lal and his son Mukund Lal werenot willing to depose as witnesses in the case.

The last important witness Ayodhya Tiwari, PW.5 deposedabout the incident which took place at 5.00 p.m. i which NandjiRastogi had threatened the informant warning him to caution hisson, the deceased. At the time when the firing took place he was inhis room. He resided in the house of the informant. When heheard the report of gun fire he wanted to come out of the house,but on seeing 5 persons coming out and running away, he did notstir out of his room immediately. Later he came out and was toldby Mrityunjay Singh, PW.3, the wife of Manjoor, and the parentsof the deceased about the occurrence. He had identified theappellants and Jagdish Chamar.

Though the trial court and the High Court have undertaken acritical scrutiny of the evidence on record with the help of counselfor the parties, we have also read the entire evidence. There ishardly anything in the cross-examination of the witnesses whichmay cast a doubt on the truthfulness of the testimony. Theircredibility has not been impeached. They are natural witnessesand have deposed in a forthright manner. There is no reason for usto interfere with the findings recorded by the trial court and theHigh Court.

Mr. P.S. Mishra, Senior Advocate, appearing for heappellants submitted that the grand child of the informant, whofirst came and reported to his grand mother Kamla Rastogi thatdacoits had entered the shop was not examined by the prosecution.In our view the failure of the prosecution to examine the grandchild of the informant does not in any manner adversely affect theprosecution case, particularly when large number of witnesses whoare found to be reliable have supported the case of the prosecution.The fact that the accused had reasons to be unhappy with theconduct of the deceased an his father cannot be disputed and infact, earlier in the evening Nandji Rastogi had administered awarning to the informant in the presence of Ayodhya Tiwari,P.W.5. The First Information Report was lodged promptly at 8.00p.m. on the same day and there was therefore no opportunity forthe prosecution to concoct a false case. The deceased was shotdead in the residential apartment which was just behind the shopwhere male members of the family were sitting. The actual killingwas witnessed by the mother of the deceased PW.2, which is onlynatural because she was inside the house preparing sweets tocelebrate the Diwali festival. The evidence on record, thereforeleaves no room for doubt that relations between appellants on theone hand and the informant and his son on the other were strained.On the date of occurrence the appellants alongwith JagdishChamar and two unknown persons came to the shop of theinformant and while Bal Mukund Rastogi and one unknownaccused prevented the informant and others from intervening bythreatening them with pistols. Nandu Rastogi, Jagdish Chamar andthe other unknown accused took Shankar Rastogi to the residentialapartment just behind the shop, where he was shot dead by NanduRastogi which was witnessed by Kamla Rastogi, PW.2, the motherof the deceased.

Learned counsel for the appellants could not persuade us toaccept the case of the defence that no such occurrence took placeand that Shankar Rastogi was killed in the course of dacoity.There is no evidence whatsoever to support the defence case whichmust be rejected.

He then submitted that in any event so far as Bal MukundRastogi is concerned there is no allegation that he took part in theassault. He submitted that his false implication cannot be ruledout. In any event it is submitted that his conviction with the aid ofSection 34 IPC is not justified in the facts and circumstances of thecase. He relied upon two decisions of this Court in Parshuram Singh Vs. State of Bihar, and Suresh and Another Vs. State of U.P., . These decisions donot help the defence. In Parshuram Singh (supra) this Curt gaveto two of the accused persons the benefit of doubt having regard tothe peculiar facts and circumstances of that case. Against one ofthe accused in that case of allegation was that he exhorted theothers to kill the deceased and though he himself was armed withlathi he did not take any part in the assault. The Court found thatthe surrounding circumstances of the case did not ensure theconfidence that he made such an exhortation. Apart from not usingthe weapon, which was handy with him, there appeared no reasonfor him to take up the leadership of the gang as he had no quarrelwith the deceased. As regards the other accused to whom thebenefit of doubt was extended, the Court fund that it was highlyimprobable that he would have refrained from using the inherentlylethal weapon like the pistol which was in his possession if heshared the common intention. In our view the decision inParshuram Singh's case rests on its own peculiar facts and noprinciple of law can be culled from that decision which may be ofany assistance to the appellants in this case.

Shri P.S. Mishra then drew our attention to paragraph 23 ofthe judgment in Suresh v. State of U.P. (supra) wherein it hasbeen observed that to attract Section 34 IPC two postulates areindispensable : (1) The criminal act (consisting of a series of acts)should have been done not by one person, but more than oneperson. (2) Doing of every such individual act cumulativelyresulting in the commission of criminal offence should have beenin furtherance of the common intention of all such persons. Healso drew our attention to the discussion in the judgment about thedifference between a "common intention" and "similar intention".It has been observed by this Court that to attract the applicability ofSection 34 of the Code the prosecution is under an obligation toestablish that there existed a common intention which requires apre-arranged plan, because before a man can be vicariouslyconvicted for the criminal act of another, the act must have beendone in furtherance of the common intention. The Court observed:

"Section 34 of the Indian Penal Code recognizesthe principle of vicarious liability in criminaljurisprudence. It makes a person liable for action ofan offence not committed by him but by anotherperson with whom he shared the common intention.It is a rule of evidence and does not create asubstantive offence. The section gives statutoryrecognition to the commonsense principle that ifmore than two persons intentionally do a thingjointly. It is just the same as if each of them haddone it individually. There is no gainsaying that acommon intention presupposes prior concert, whichrequires a prearranged plan of the accusedparticipating in an offence. Such reconvert orpreplanning may develop on the spot or during thecourse of commission of the offence but the crucialtest is that such plan must precede the actconstituting an offence. Common intention can beformed previously or in the course of occurrence andon the spur of the moment. The existence of acommon intention is a question of fact in each caseto be proved mainly as a matter of inference fromthe circumstances of the case."

In the facts of the case the Court found that Pavitri Deviaccused No. 3 could not be held guilty of the offence of murderwith the aid of Section 34 since she was merely standing on theroad when the incident happened. Her mere presence withoutdoing anything more, without even carrying a weapon and withouteven matching along with other assailants did not attractSection 34 IPC.

The facts of this case are quite different. Appellantsalongwith three others came armed with country made pistols.They came together, and while two of them stood guard andprevented the prosecution witnesses from intervening three ofthem took the deceased inside and one of them shot him dead.Thereafter they fled together. To attract Section 34 IPC it is notnecessary that each one of the accused must assault the deceased.It is enough if it is shown that they shared a common intention tocommit the offence and in furtherance thereof each one played hisassigned role by doing separate acts, similar or diverse. The factsof this case are eloquent and the role played by Bal MukundRastogi of preventing the prosecution witnesses from going to therescue of the deceased was the role played by him with a view toachieve the ultimate objective of killing Shankar Rastogi. We,therefore entertain no doubt that all the five persons who came tothe shop of the informant had a common intention to commit themurder of Shankar Rastogi and they acted pursuant to a prearranged plan. The facts clearly are consistent only with thehypothesis of their acting in furtherance of a common intention.They have, therefore rightly been convicted with the aid ofSection 34 IPC.

We, therefore find no merit in the appeals which aredismissed.