JUDGMENT
Mukul Mudgal, J.
1. These four appeals are filed by the accused against the order of conviction recorded against them. Crl. A. 342/1998 is filed by Din Mohd @ Ram Kumar @ Ashok Kumar, Crl. A. 246/1998 is filed by Akbar Ali @ Javed, Crl. A. 327/1998 is filed by Mohd. Shokin @ Babbay and Crl. A. 345/1998 is filed by Dilshad @ Billi. The incident which led to the present appeals took place on the night between 4th and 5th March, 1993 leading to robbery and death of Bankey Bihari Vij in the incident at about 3.15 a.m. The Rukka recorded by the police at about 3.35 a.m. on the statement of Smt. Rekha Vij (PW-2) widow of Shri Bankey Bihari Vij, the deceased stated that there was an intrusion in the house by three persons, one of which held a pistol and he was of the most darkish complexion amongst the accused. In the course of the robbery, a bullet was fired by such person who was holding the pistol leading to the death of her husband. The FIR was recorded at 5.50 a.m. where Smt. Rekha Vij PW-2, widow of the deceased Bankey Bihari Vig deposed as under:
I reside at the aforesaid address. Today, I was sleeping along with my husband namely Bankey Bihari Vig and my son namely Karan, aged 8 years, in a room of my house. The door of our room was open. Time at about 3.15 hours in the night three persons, of whom one was of fair complexion and other two were of sallow complexion, trespassed the house. They all were wearing pants and shirts. They woke up all of us by way of shaking. At that time the light of the room was on. One of them was holding a pistol in his hand and he was of the most darkish complexion amongst them. He might be 24 years old. The age of remaining others was around 20 or 21 years. All of them were of medium build. The said person (having darkest complexion) pointed his pistol towards us and demanded the key. Whereupon my husband uttered that he would just then give the same. Over this, the man holding the pistol told my husband to observe silence and not to make any sound. In the meanwhile, a forth (sic-fourth) person came over there, inside our room, carrying my father-in-law namely Shri Piarey Lal Vig with him from the other room and made him to sit in the said room where I was sleeping with my husband. On this, my father-in-law, uttered to the effect that whether they have killed anyone. Actual words being, “Mar Suttya Kya” Just after listening that, the man who was holding the pistol in his hand pointed the same towards my father-in-law. Just seeing all this, my husband pounced upon that person who was holding pistol in his hand. They both started scrambling with each other and during the course of grappling they moved down into the gallery. My husband fell down into the gallery. Then I laid myself over my husband. Whereupon those persons thrashed me on my hand and shoulder with the cricket wicket of my son, which was lying over there in our house and forcibly separated me from over my husband. Then the person who was holding the pistol fired a bullet in the chest of my husband. Thereafter they carried out the search of the entire house. they broke the lock of the almirah kept in my room and took out there from a sum of rupees 50,000/- (fifty thousand), all in the denomination of Rs. 100/- (hundred) rupee notes. They also took off two gold bangles from the persons of my mother-in-law, besides my gold bangle and gold necklace (chain). In addition to the above, they also took out other ornaments worth rupees 50,000/- (fifty thousand) kept in the house and put all the said articles including money into a soily (dust) coloured old bag. Out of them, one who was looking alike Nepali told them that he had again brought a new vehicle even that day. Subsequently, they locked all of us in a room. They remained in the house till around 3.45 hours and afterwards they all fled away from there while passing through the staircase and the roof. Thereafter, I Along with my neighbour took my husband to U.K. Nursing Home at Vikas Puri, where the Doctor declared him as dead. I can identify all those persons. I will prepare the list of the ornaments stolen from the house only after checking the same.
2. Based on the FIR the prosecution set up the case as follows:
2. On 5.3.93 and prior to that Smt. Rekha Vij was residing at H. No. J-118, Vikas Puri along with her husband Bankey Bihari Vij (since deceased), her son Karan, her daughter Baby Neha, father in law Pyare Lal and mother in law. Mother of Rekha Vij’s mother in law was also residing at the said house at that time. Bankey Bihari (since deceased) used to run the business of sale/purcahse of Maruti cars. One Shanti Swaroop was also residing at that time in the rear portion of the house bearing No. J-118, Vikas Puri as a tenant. Case of the prosecution is that on the intervening night of 4.3.93 and 5.3.93 at about 315 A.M. (night) Bankey Bihari (now deceased) was sleeping along with his wife Rekha and son aged about 7/8 years in one of the rooms of the house in question. Pyare Lal, father-in-law of Rekha was sleeping at that time in another room. In the drawing room of the said house, mother-in-law and daughter of Rekha were sleeping. At that time accused A-1 to A-4 entered the said house by cutting the wooden door of the room. A-1 to A-4 entered into the room in which Bankey Bihari was sleeping. Accused A-1 was having a pistol. Accused A-2 was having a iron rod. A-1 and A-2 stood near Bankey Bihari and Smt. Rekha respectively. A-3 stood at the entrance of the door of the said room. A-4 took the cricket wicket of Karan and went to the room in which Pyare Lal was sleeping. A-1 to A-3 awoke Rekha, her husband and her son. A-1 shouted that nobody would raise alarm, “NAHI TO MAAR DIYE JAOGE”. Then A-1 asked Bankey Bihari to hand over the valuable goods and money available in the house. Meanwhile, A-4 brought Pyare Lal in the said room. On reaching at the entrance, Praye Lal enquired from Bankey Bihari as to what had happened. On this A-1 became furious and pointed his pistol at Pyare Lal to kill. Bankey Bihari caught hold A-1 from behind. A-1 pushed Bankey Bihari on the floor in the gallery. Rekha Vij jumped over Bankey Bihari and laid on him to protect him. A-4 lifted Rekha after giving blows with cricket wicket on her right hand. A-1 to A-4 forcibly lifted her and pushed her away from Bankey Bihari. Thereafter, A-1 fired shot on Bankey Bihari from his pistol. It hit on the chest of Bankey Bihari and he started bleeding. A-1 to A-4 also brought the other inmates of the house in the said room. Thereafter, A-2 removed forcibly all the jewellery from the person of Rekha Vij which she was wearing at that time. They also removed gold jewellery from the person of mother-in-law of Rekha. The accused persons further broke open the locker of the almirah and looted the ornaments and cash. They also searched other rooms and looted the ornaments and cash amounting to Rs. 50,000/- approx. On hearing the commotion, Bankey Bihari’s neighbourers enquired about the happenning going inside the room. A-1 replied “KOI GAL NAHI GHAR DI GAL HAI”. The accused persons had cut the telephone wires. Shanti Swaroop when tried to inform the police on telephone found the same dead. The accused persons after looting the cash and ornaments put the same in an old bag and left the house trying to close the room. They also took away the key while leaving the room.
3. Further the case of the prosecution is that thereafter Rekha Vij touched the body of her husband Bankey Bihari and found his body warm. She raised alarm for help. Some neighbourers reached at her house. Bankey Bihari was removed to U.K. Nursing Home. She was declared brought dead. Someone informed the police. L/Ct. Renu posted in PCR got an information on telephone at 4.35 A.M. about the occurrence. She passed over his information at P.S. Vikas Puri, DD No. 28A was recorded to this effect at P.S. Vikas Puri. On receipt of DD No. 28A, insp. Mohan Chand along with SI Pankaj Singh, ASI Goverdhan and Ct. Raj Pal reached at the spot. Insp. Mohan Chand recorded the statement of the complainant Rekha Vij. He made his endorsement over the same and sent the rukka for the registration of the case under Sections 302/394/397 IPC. Duty officer Harbharaj Singh recorded the FIR. Ct. Hans Raj was deputed to deliver the special report to the concerned area M.m. Insp. Shoban Singh, the then sho of the P.S. Vikas Puri also reached at the spot at about 5.15 A.M. along with his police staff. he inspected the scene of crime and got the same photographed. He lifted blood stained bullet and blood sample from the spot. He seized one wicket and one button of the shirt from the spot. He also lifted butts of cigareette from the roof of the house. All these articles were seized vide necessary seizure memos. I.O. also recorded the statements of Neha, Karan, Pyare Lal and Shanti Swaroop under Section 161 Cr. P.C. I.O. also conducted the inquest proceedings on the deadbody of Bankey Bihari at U.K. Nursing Home and prepared the necessary inquest report. Postmortem on the deadbody of Bankey Bihari was also conducted by Dr. L.T. Ramani on 5.3.93. Injuries on the person of Bankey Bihari were opined to be antimortem caused by fire arm projectiles fired from contact range. Fire injuries were opined to be sufficient in the ordinary course of nature to cause death. Death was opined to be due to shock and haumorrhage consequent injuries.
4. During investigation, I.O. prepared the site plan. He also recorded the statements of the concerned witnesses. I.O. deposited the case property in the malkhana of PS Vikas Puri.
5. Further case of the prosecution is that on 18.3.93 accused A-1 to A-3 were arrested by the police of P.S. Vikas Puri in case FIR No. 117/93 under Section 307 IPC. During investigation of the said case, A-1 to A-3 made disclosure statements about the commission of the offence in this case. Their disclosure statements were recorded and handed over to Insp. Shoban Singh. the accused A-1 to A-3 were kept in muffled faces. They pointed out the place of occurrence. They were produced before the court for TIP. However, later on accused A-1 to A-3 refused to participate in the TIP proceedings. the Ld. M.M. Ms. R. Kiran Nath conducted the TIP proceedings and recorded the statements of A-1 to A-3 regarding the refusal to participate. The I.O. interrogated A-1 to A-3 and recorded their disclosure statement. A-1 to A-3 led the police party to the place of incident and I.O. prepared the pointing out memos. On 25.3.93, disclosure statement of A-2 was recorded where A-2 disclosed to get recover the bangles looted in the occurrence. On 26.3.93, accused A-1 to A-3 led the police party at H. No. 1039, street No. 13, Mustafabad. A-2 got recovered three banles from underneath of the floor of the room of the house. The bangles were seized vide necessary seizure memo. The accused A-1 to A-3 further got recovered various articles involved in other cases which were seized by the police under Section 102 Cr. P.C. On 8.4.93, the bangles were got judicially identified from complainant Rekha Vij by the police.
6. Efforts were made to arrest A-4 but he could not be arrested. In January, 1994, A-4 was arrested by the police of crime branch. A-4 was arrested thereafter in this case and was produced in muffled face before the learned M.M. Ms. Renu Bhatnagar for TIP. A-4 also refused to participate in the TIP proceedings. Ms. Renu Bhatnagar, Ld. M.M. recorded the TIP proceedings. Efforts were made to effect recovery during police remand of A-4 but no recovery could be effected. A-4 was sent to JC and the IO filed the supplementary challan against him after recording the statements of the concerned witnesses.
7. During investigation, the IO sent the seized articles to CFSL and collected the CFSL reports. The IO got prepared the sealed site plan. After completing the investigation, the IO filed the challan and supplementary challan against the accused A-1 to A-4 in the court of Ld. M.M.
8. After complying with the provisions of the Section 207 Cr. P.C., the Ld. M.M. committed the case to the court of Sessions.
3. In support of its case, the prosecution recorded the testimony of 25 witnesses. It was contended that the witnesses examined by the prosecution are independent public witnesses having no enmity against the accused persons. The accused persons refused to get themselves identified from the complainant in TIP proceedings. It was also contended that adverse inference is required to be drawn against the accused persons for refusing to participate in the TIP proceedings. The accused persons were duly identified by the prosecution witnesses in the court. It was further contended that the recovery of bangles at the instance of the accused persons further connects the accused with the commission of the offence.
4. Thereafter statements of all the accused were recorded under Section 313 Cr.P.C. The accused had denied their involvement in the commission of the offence claiming false implication. The witnesses examined by the prosecution were PW-1 Vijay Kumar; PW-2 Smt. Rekha Vij; PW-3 Dr. K.K. Arora; PW-4 Dr. L.T. Ramani; PW-5 Insp. Sumer Singh; PW-6 Ct. Krishan Kumar; PW-7 Insp. Om Prakash; PW-8 HC Harbhajan Sg; PW-9 ASI Mahinder Singh; PW-10 Neeraj Talwar; PW-11 Insp. Devinder Sg; PW-12 Insp. Om Prakash (also examined as PW-7), PW-13 Insp. Anil Kumar; PW-14 HC Randhir Singh; PW-15 Shanti Swaroop; PW-16 L/Ct. Renu; PW-17 Ct. Hans Raj; PW-18 Insp. Anil Kumar; PW-14 HC Randhir Singh; PW-15 Shanti Swaroop, PW-16 L/Ct. Renu; PW-17 Ct. Hans Raj; PW-18 Baby Neha; PW-19 SI Satya Parkash; PW-20 Ms. R. Kiran Nath; PW-21 Karan; PW-22 Insp. Shobhan Sg; PW-23 Ms. Renu Bhatnagar; PW-24 Insp. Mohan Chand; PW-25 Ct. Daulat Ram and PW-26 Ct. Jaswinder Singh.
5. The appellants were represented by Smt. Sunila Chaudhary, Advocate who was appointed as amices Curiae. The Trial Court has largely based the conviction on the basis of the testimony of PW-2 Rekha Vij whose evidence has been described by the trial Court as follows:
…She has deposed that on the intervening night of 4/5.3.93 at about 3.15 A.M. she along with her husband and son aged about 7/8 years was sleeping in one of the room of her house. Four accused persons present in court entered into the house by cutting the wooden door of the roof. Out of four accused persons accused A-1, A-2 and A-3 entered into her room. Accused A-1 was having a pistol. He stood near the side of her husband. A-2 was having an iron rod and he stood by her side. A-3 stood at the entrance of door of the room. A-4 took the wicket of her son and went to the room in which her father-in-law was sleeping. Accused A-1 to A-3 awoke them. They could not understand as to what was happening. Therefore, A-1 shouted that no body would raise alarm NAHI TO MAAR DIYE JAOGE. A-1 asked her husband to handover the valuable goods and money available in the house. Her husband replied to give the same to them. Meanwhile, accused A-4 brought her father-in-law forcibly in the said room. When her father came at the entrance of her room and on seeing the presence of remaining accused persons there, he (father in law) told her husband that theives had entered in the house and they would kill them. On this A-1 became furious and he shouted at her father-in-law that if that was the matter, he (A-1) would finish him (father-in-law) first and immediate he (A-1) pointed his pistol at her father-in-law. Her husband caught A-1 from behind. Her husband had become nervous as he (deceased) had just got out from his bed. A-1 pushed her husband on the floor in the gallery. She immediately jumped and laid on her husband. Accused persons were lifting her up. In that process A-4 gave blows with wicket on her right hand. Accused persons forcibly lifted her and pushed her away from her husband. Immediately A-1 fired shot at her husband from his pistol. Her husband became injured and started bleeding. Accused persons removed her husband to one corner of the gallery. The witness has further deposed that on hearing their cries, her mother in law and mother in law’s mother d her daughter opened the sliding of their room to see the happening. The accused persons pushed all of them and brought in the said room. Accused A-2 forcibly removed all the jewellery which she was waring at that time. The jewellery consisted of four bangles of gold, one gold chain and 1 or 2 gold rings. Accused A-1 came to her and at the point of pistol threatened not to raise alarm or he would kill of her family members. Accused A-1 asked her to hand over the keys of locker of the almirah. She handed over the key of the front door of the almriah and asked him to break open the inside locker as she want not having the key of the inside locker. A-4 broke open the locker in the room. the remaining accused went o the another room to loot the valuables. They also cut the almirah of another room and removed the valuables including jewellery and cash. During this process A-2 used to come to her son and used to put pistol on his chest. The accused persons used to pull the chail of flush and repeatedly and frequently. the accused persons put all the valuable items in a bag and left the house threatening not to raise alarm or they will kill them (inmates).
6. This witness PW 2 Rekha Vij was cross-examined at length and deposed that she had gone for identification of the accused at Tihar Jail where the accused had refused to participate in the identification parade. She denied that she had identified the accused at the instance of the police. The trial court recorded the following findings:
(a) That this witness has categorically deposed about the involvement of the accused persons for the commission of the offence and no material contradiction was elicited in her cross-examination. The presence of the witness at the spot could not be disputed and therefore her evidence is entitled to considerable weight.
(b) The occurrence was at the dead hours of the night and no one else is expected to be present at the spot at that time. In her statement before the Police, she had given description of the assailants and asserted to identify them if produced before her.
(c) Adverse inference is to be drawn against the accused for not participating in the TIP proceedings.
(d) A-1 to A-4 were identified in Court by the witness and overt acts were attributed by her to each of the accused persons in her statement as well as in her deposition before the Court.
(e) The identification of the accused cannot be doubted as the light was on and the accused persons had stayed at the time of occurrence for considerable time.
(f) PW-18 Baby Neha daughter of the deceased who was sleeping with her grand mother had also supported the version of PW-2.
(g) PW-21 Karan, son of the deceased who was sleeping with his parents also supported the testimony of his mother PW-2 and identified accused No. 1 but was unable to identify the other three accused.
(h) Since all the witnesses corroborated each other on all the material facts, the participation of the accused has been proved and the culpability established and the contents of the FIR stand proved.
(i) After the arrest of A-1 to A-3, their disclosure statement was recorded on 25.3.93. On 26.3.93 bangles were recovered from the underneath the floor of the room of the house. These bangles were identified by PW-2 Rekha in the presence of the learned Metropolitan Magistrate and on this aspect there was no cross-examination. The identification of the bangles has not been disputed as no suggestion was put in the cross-examination. The recovery of the looted articles connects the accused persons with the commission of the offence.
7. The Trial Court however, found certain deficiencies in the investigation of the case by the police which read as follows:
(a) No efforts were made by the I.O. to get the report from the finger prints expert on the articles lifted from the spot.
(b) No medical examination of the complainant Rekha was got done even though she was said to be beaten by cricket wicket by the accused persons.
(c) No serious efforts were made to recover the weapon of offence.
(d) The photographer was not cited as a witness.
(e) The I.O. failed to establish to whom the blood on the cricket wicket belonged and there was a failure to link the shirt button alleged to have recovered from the spot, to any of the accused persons.
8. However, inspite of recording the above discrepancies, in the investigation, the Trial Court deemed them to be insufficient to dislodge the prosecution case and accordingly came to a conclusion that A-1 to A-4 had shared the common intention to murder Bankey Bihari at the time of the commission of the said offence and that Accused No. 1 was armed with pistol and Accused No. 2 was armed with an iron rod. Accused Nos. 1 to 4 had trespassed in the residential house at the dead hours of the night for committing the robbery. A-4 caused injury on the person of Smt. Rekha/complainant with the cricket wicket and Accused Nos. 1 to 4 lifted and pushed her away and Accused No. 1 fired on Bankey Bihari resulting in his death and there was looting of the house thereafter.
9. The Trial Court therefore found that in the present case the accused Nos. 1 to 4 had committed criminal house tresspass with the motive of committing robbery and they were armed with deadly weapon and that they had sufficient knowledge that in case of resistance, the fire arm is bound to be used and death could be caused. Common intention to cause death therefore in view of the above circumstances ought to be presumed against the accused. The primary object was to commit robbery and the common intention was to kill so that the primary object could be achieved. Consequently, Section 34 IPC was attracted. Accordingly, in view of the above findings, all the four accused (the appellants herein) were held guilty under Section 392 r/w 397/34 IPC and also under Section 302/34 IPC and the following sentence was imposed on the accused:
Accordingly, accused Din Mohd. @ Ram Kumar, Dilshad @ Billi, Mohd. Shokin @ Bobbay and Akbar Ali are sentenced to undergo R.I. for 7 years each for the commission of the offences punishable under Section 392 read with Section 397 IPC. Accused Din Mohd. @ Ram Kumar, Dilshad @ Billi, Mohd. Shokin @ Bobbay and Akbar Ali are further ordered to pay fine of Rs. 1,000/- (Rupee one thousand only) each and failing to pay the fine to undergo S.I. for 3 months each. Accused Din Mohd. @ Ram Kumar, Dilshad @ Billi, Mohd. Shokin and Akbar Ali are further sentenced to undergo imprisonment for life for the commission of the offence punishable under Section 302 IPC. Accused Din Mohd @ Ram Kumar, Dilshad @ Billi, Mohd. Shokin @ Bobbay and Akbar Ali @ Javed are further ordered to pay fine of Rs. 2,000/- (Rupees two thousand only) each and failing to pay fine to further undergo S.I. for six months each. The substantive sentences shall run concurrently.
10. Ms. Charu Verma, the learned amices Curiae appearing on behalf of all the four accused defended the accused and submitted that the prosecution case apart from the PW-1’s testimony was based on the disclosure statement which could not be believed as all the disclosure statements of the accused were parrot-like and identical and consequently could not be relied upon. She further submitted that disclosure statements were supported only by PW 19 SI Satya Prakash and there was no independent public witness and therefore the disclosure statements ought not to have been relied upon by the trial court. She further pointed out certain discrepancies and improvements in the testimony of PW-2 so as to render her testimony unworthy. She had also relied upon the fact that while the Rukka stated that there was only three intruders, the FIR stated that there were four intruders. She has further submitted that having made these improvements at every stage, so as to fit in with the prosecution version, the testimony of PW 2 Rekha Vig ought not to have been relied upon, particularly in view of the law laid down by the Hon’ble Supreme Court in State of Rajasthan v. Bhola Singh AIR 1994 SC 542. The relevant portion of the said judgment reads as follows:
It is well settled that if the case is rested entirely on the sole evidence of eye-witness, such testimony should be wholly reliable.
11. In our view the above judgment is not applicable to the facts of the present case because in that case the occurrence had taken place in dark. There was no evidence led in that case to show that electric bulb was on and also there was no other source of light for identifying the accused. But on the contrary, in the present case, the prosecution case is that room was lit at the time of occurrence. Since during the course of robbery various articles were looted from the almirah it was natural for the room to have some source of light and this was deposed to. In this view of the matter, the above judgment is not applicable in the facts and circumstances of the present case.
12. The learned Counsel for the appellant pointed out that the following discrepancies which occurred during the course of the investigation:
(a) The blood on cricket wicket could not be proved as no injury was detected on Rekha Vig.
(b) Blood stains found on cricket wicket were not identified.
(c) Finger prints were lifted and sent for CFSL but the report of the CFSL was not produced.
13. The learned Counsel for the appellant further submitted that it was not safe to rely upon the testimony of PW 21 Karan, son of the deceased and PW 18 Neha, daughter of the deceased as they were too young to effectively identify the accused persons and therefore their testimony could not be relied upon.
14. In addition without prejudice to her pleas, the learned Counsel for the accused submitted that assuming without admitting that robbery was proved by the prosecution, in so far as the murder of Bankey Bihari was concerned there was no common intention. It was further submitted that the prosecution has also not been able to prove similar intention of the accused other than the accused No. 1 towards the commission of robbery as opposed to a common intention of killing the occupants of the robbed house, as no overt act was attributed and Section 34 IPC could not be brought home against the accused persons in view of the testimony on record. In support of this, the learned Counsel for the appellants relied upon the following position of law laid down by the Hon’ble Supreme Court and by the Division Bench of this Court:
(i) Badruddin v. State of Uttar Pradesh 1998 VII AD(SC) 240:
4. The High Court noted that the relation between the deceased and other were strained on account of dispute with regard to “Sahan’ (open yard) of the Mosque of Shah Bhukari and that after Friday’s prayer, there was some alteration between the two groups; the one consisting of the said four persons and other consisting of the deceased and PW-1. Thereafter, the appellant and the said three persons came armed with knife and lathis, as noted above, surrounded the deceased near his door while Nizamuddin dealt blow to him with knife, Siddiquie beat him with lathi. PWs 3 and 5 stated that the appellant, Hafiz and Siddiqui inflicted blow to the said three eye witnesses with lathis. From the above facts, it is difficult to sustain the conclusion that there was common intention between the appellant and other persons to kill the deceased. Though establishing common intention is a difficult task for the prosecution, yet, however, difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the assailants to commit the offence, be it pre-arranged or on the spur of the moment but it must necessarily be before the commission of the crime. Where direct evidence is not available, it has to be inferred from the circumstantial evidence. In the instant case, it is stated that the deceased alone was assaulted by Nizamuddin with knife and Siddiqui with lathi. The appellant, dealt blows with lathi not to the deceased but to other witness. There is no direct evidence of common intention. There is no case nor evidence of exhortation by him or of the fact that with a view to keep the said witnesses away from interfering and to facilitate Nizamuddin to kill the deceased the appellant assaulted the said witnesses. Having regard to the facts and circumstances of the case, it is not possible to arrive at the conclusion that the appellant and others shared common intention to kill the deceased Shaukat Ali. Consequently, we are unable to sustain the conviction of the appellant for the offence under Section 302/34 IPC. However, on the facts, we confirm the conviction and sentence under Section 323/34 IPC awarded by the courts below. As the appellant has already served out the sentence for the offence convicted, therefore, he is directed to be released forthwith unless he is required to be detained in any other case. The appeal is accordingly allowed.
(ii) Mithu Singh v. State of Punjab 2001 SCC (Cri) 668
6. To substantiate a charge under Section 302 with the aid of Section 34 it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of both. Common intention has to be distinguished from same or similar intention. It is true that it is difficult, if not impossible, to collect and produce direct evidence in proof of the intention of the accused and mostly an inference as to intention shall have to be drawn from the acts or conduct of the accused or other relevant circumstances, as available. An inference as to common intention shall not be readily drawn; the culpable liability can arise only if such inference can be drawn with a certain degree of assurance. At the worst Muthu Singh, accused appellant, knew that his co-accused Bharpur Singh was armed with a pistol. The knowledge of previous enmity existing between the Bharpur Singh and the deceased can also be attributed to Mithu Singh. But there is nothing available on record to draw an inference that the co-accused Bharpur Singh with the intention of causing the death of Gurdial Kaur. In our opinion, an inference as to Mithu Singh, accused appellant having shared with Bharpur Singh a common intention of causing the murder of the deceased Gurdial Kaur cannot be drawn. His conviction under Sections 302/34 IPC cannot be sustained and must be set aside.
(iii) Dukhmoehan Pandey and Ors. v. State of Bihar AIR 1998 SC 40:
6—the existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually, it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in course of the commission of offence. But such common intention which developed at the spur of the actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some overt attack on the spur of the moment. In other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person.
(iv) Limbaji and Ors. v. State of Maharashtra 2002 (1) JCC 294:
31. Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan’s case, the three Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take the ornaments from his person, there was no need to forcibly snatching the ear ring before putting an end to the victim. It seems to us that there was no pre-medicated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot to ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus, two possibilities confirm us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence. It is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.
(v) Rajendra Singh and Ors. v. State of Bihar AIR 2000 SC 1779:
6. The only contention that survives for our consideration is whether Triloki could be held liable by application of Section 34. From the injuries on the deceased as found by the doctor PW-3, it is crystal clear that the injury No. 1 was found to be sufficient to cause death in the ordinary course of nature and said injury is attributable to the assault given by accused Rajender on the chest of the deceased. So far as Triloki is concerned, as per the evidence of PW 2 he has given a blow on Satyanarain PW 8 and Banwari, the other injured who has not been examined and he had not inflicted any injury on the deceased. According to PW 4 Triloki had given a blow on the leg of Kameshwar. According to PW 7 Kameshwar was assaulted by Rajender. Triloki and Prabhunath but he has not ascribed as to which accused assaulted which part of the body of the deceased and narration is one of general nature. So far as the evidence of injured PW 8 is concerned Triloki Singh hit Kameshwar of his leg. Leaving aside the contradiction amongst each other with regard to the assault by Triloki and taking into account the entire scenario it is difficult for us to hold that Triloki also shared the common intention with Rajender when Rajender gave a fatal blow on the deceased. It may be noticed at this stage that though the prosecution had made out the case that nine accused in all formed an unlawful assembly the common object of which assembly was to murder deceased Kameshwar but the learned session Judge on appreciation of the evidence came to the conclusion that there had been no unlawful assembly nor there was any common object to cause assault or murder of deceased Kameshwar. This Court had held that the distinction between a common intention and the similar intention may be fine, but it nonetheless a real one and if overlooked, may lead to miscarriage of justice. Following the ratio in the aforesaid case and applying to the facts and circumstances of the present case, as unfolded through the eye witnesses it is not possible for us to hold that Triloki also shared the common intention with accused Rajender and his conviction under Section 302/34 cannot be sustained. We accordingly set aside the same and instead convict him under Section 324 Indian Penal Code and sentence him to imprisonment for a period of two years.
(vi) Abdul Murasalin v. State 2005 [3] JCC 1776:
38. It was argued that accused Murasalin was not guilty of the offence under Section 302 read with Section 34 IPC and if any one was guilty, it was accused Akil. The argument was based on the premise that Salvinder was shot dead by accused Akil not because he caused any hindrance or obstruction in the commission of robbery by the accused persons but for the reason that after the robbery Akil tried to outrage the modesty of Shama Salvinder was shot dead by Akil with a revolver. The factum of death of Salvinder with a revolver was also stated by other eye-witnesses except that they did not identify Akil as the person who was having the revolver and had shot at Salvinder. We find no reason to disbelieve Mohd. Jamil for what has been discussed by us hereinabove. It does not, in our view matter, if the weapon of offence was not recovered when we have the primary and direct evidence of an eye-witness to the incident. As regards the submission that the appellants were acquitted in the cases registered against them under the Arms Act, the same is neither here nor there for it is not the case of the prosecution that Salvinder was shot dead by any of the weapons recovered from them which formed the basis of the prosecution under the Arms Act.
15. The learned Counsel for the appellants submitted that accused Nos. 2, 3 and 4 could not be held guilty under Section 302 IPC but only under Section 392 IPC. She has further submitted the following pleas individually qua the three accused persons named above:
(a) In so far Akbar @ Javed the accused No. 4 is concerned, who is the appellant in Crl Appeal No. 462/1998, she submitted that no recovery was effected from him. He had rightly refused to participate in TIP.
(b) No injury was found on the person of PW 2 Rekha Vig.
(c) In any event blood stains were not proved.
(d) Finger prints were lifted and sent for CFSL, but the CFSL report was not produced.
(e) No recovery was effected from him and no overt act was attributed to him.
(f) There was a parrotlike statement of disclosure and the disclosure was attested only by the police personnel.
16. In so far as Dilshad, the accused No. 2 is concerned, who is the appellant in Crl. Appeal No. 345/1998, the learned Counsel submitted that:
(a) There was parrotlike disclosure witnessed only by SI Satya Prakash,
(b) Three bangles were said to be recovered from vacant house in spite of neighbours being present.
(c) The role assigned to him was that he was carrying an iron rod whereas the rukka did not disclose the existence of iron rod nor was any iron rod recovered and any fingers prints were identified.
(d) No overt act was attributed to him.
17. In so far as accused No. 3 Mohd. Shokin, the appellant in Crl. Appeal No. 327/1998 is concerned, the following pleas were urged by the learned Counsel for the appellant:
(a) Even the FIR averred him to be not a participant on the physical assault on the deceased.
(b) No overt act was attributed to him qua the killing of the deceased.
(c) There was no recovery and in any event the fact that the accused Nos. 2, 3 and 4 had common intention was not proved by the prosecution.
18. Mr. Sharma, the learned Counsel appearing for the State, urged in reply that the prosecution had clearly brought home the common intention of the accused who participated in the planned armed robbery and active participation of the accused clearly established intention of all the accused for robbery and consequently murder. He further submitted that PW 2 Rekha Vig’s testimony clearly nailed all the accused who played active roles in the occurrence. He has also submitted that three bangles were recovered from the house of Akbar at the instance of another accused, i.e., Dilshad. This disclosure was identified by PW 2 Rekha Vig. He has also submitted that accused No. 3 Dilshad was carrying an iron rod and therefore had a clear common intention shared with the other co-accused.
19. In so far as the appeal of the accused No. 1 to 3 are concerned, the statement of PW2 Rekha Vij is clear. Since complainant Rekha herself was present at the spot at the time of occurrence, she is the best person to identify the assailants. The occurrence had taken place at the dead hour of the night and no one else is expected to be present at the spot at that time. No independent witness from the locality was expected to witness the occurrence at that time. Even at the time of conducting the TIP proceedings, which accused persons refused to participate afterwards, PW 2 had asserted to identify the assailants. She identified all the accused persons A-1 to A-4 without any hesitation categorically before the court. She specifically attributed overt acts to each of the accused persons in her statement as well as in her deposition before the trial court. She asserted in her testimony that the light in the room was on and she had seen the accused in her room at about 3.15 A.M. This assertion of the PW2 was not controverter by the learned defense counsel in the trial court. Further, we agree with the view of the trial court that PW 2 cannot be termed to be an interested or a partisan witness. In our view, there is no reason to disbelieve her as her testimony finds affirmation from not only the Rukka but also the FIR. The discrepancies in the FIR and the Rukka are minor and cannot be termed as material improvements as urged by the learned Counsel for the appellant.
20. Similarly, the testimony of PW 21 Karan if not that of PW 18 Neha, son and daughter of the deceased respectively, also corroborate the testimony of the PW 2 Rekha Vij, their mother. PW 21 at the time of incident was 17 years old and was fully capable of deposing to the incident in all material particulars. He has affirmed the testimony of his mother, i.e., PW 2 Rekha Vij. He has also identified A1, Din Mohd. though was unable to identify the other accused persons. PW21 had given a specific reason to identify A1 as A1 had played major role in the commission of the offense and was in possession of the pistol and PW21 had seen him particularly as he had been standing by the side of the deceased. There have been minor discrepancies in the evidence which do not detract from the truthfulness of his version which indeed verified the testimony of PW2. The testimony of PW 2 also clearly implicates the accused No. 1, 2 and 4 who also played specific positive roles in causing the death of Bankey Bihari. In our view, taking into account the nature of the incident as narrated and the firing of a shot by Din Mohd., it is evident that apart from Din Mohd. who actually fired, accused No. 2 and 4 also cannot escape conviction under Section 302 read with Section 34 IPC. Their participation and the assault by them on the deceased and the members of his family clearly make them party to the common intention, which in any case, if not inherent before the actual incident was certainly developed on the spot.
21. Furthermore, the identification is supported by the fact that the during the course of the robbery the accused had ransacked the room including Almirah and the deposition of the existence of the light in such circumstances is entirely believable and lends credence to the testimony of PW 2 Rekha Vij and her son Karan and daughter Neha.
22. The learned Counsel for the appellant has submitted by relying on the aforesaid judgments of the Hon’ble Supreme Court that this was a case where the accused No. 3 could be convicted at best of the offence of robbery and not of the offence of murder, because while he may have shared a similar intention with the other accused persons qua robbery, he did not share a common intention to kill Bankey Bihari (since deceased). In so far as the case of Mohd. Shokin, the accused No. 3 is concerned, the testimony of PW 2 Rekha Vij discloses that overt act assigned to this accused are as follows:
Dilshad and Shaukin entered into my room in which I was sleeping with my husband and my son.
—Accused Shaukin then asked Din Mohd. in my room “CHALO PICHHE VAN AA GAI HE.” Accused persons were calling Milkha Singh to accused Din Mohd. It was being repeated.
23. Even the FIR does not aver him to be a party to any assault on the deceased nor is it the case of the prosecution that Shokin was armed. No overt act was asserted against Mohd. Shokin qua the actual killing of the deceased Bankey Bihari. Furthermore, no recovery was effected from him.
24. In view of the above testimony by PW2 Rekha Vij and the other factors enumerated above, we are of the view that the accused No. 3 cannot be held to have shared a common intention with the accused Nos. 1, 2 and 4 to kill the deceased Bankey Bihari though he certainly shared a similar intention i.e. to take part in the armed robbery.
25. In this view of the matter, the appeal Crl. A. 342/1998 filed by Din Mohd @ Ram Kumar @ Ashok Kumar, Crl. A. 246/1998 filed by Akbar Ali @ Javed, and Crl. A. 345/1998 filed by Dilshad @ Billi are dismissed. In so far as appeal Crl. A. 327/1998 filed by Mohd. Shokin @ Babbay is concerned, the appeal is partly allowed and while setting aside his conviction under Section 302 IPC, we maintain his conviction as the sentence awarded to him under Section 392 IPC. We record our appreciation of the work put in by the learned amices Curiae, Ms. Charu Verma.