BHAllA NANDA SARMA & Ors. v. THE STATE OF ASSAM

The eye witnesses of the occurrence were P.W. 2 Gopi Nath Sarma; P.\V. 3 Danesh Ali; P.W. 4 Nnr Mohammad and P.W. 6 Kurpan Ali. The High Court in its judgment has catalogued the main five reasons which led the Sessions Judge to make an order of acquittal in favour of E In our opinion the High Court was right in reversing the the appellants. judgment of the Trial Judge and interfering with the order of acquittal. It did so we1! within the limits of its power and the law as enunciated by The four reasons given by the learned this Court in several decisions. It did not justify the entertain- Sessions Judge were of a flimsy nature. ing of any doubt in regard to the prosecution story on the basis of these reasons. One of the five reasons was that the P .Ws did not state about the injuries of Bhaba Nanda and they were not explained by the prosecu- tion. Tn Ol)I' opinion the High Court has rightly not attached much signi :lcancc to the alleged failure of the prosecution to explain the injuries on Bhaba Nanda. The Injuries on his person were of a very minor nature, three of them being ecchymosis and one swelling of the root of right index The evidence of the Doctor D.W. l was not sufficient to prove finger. that the injury on the right index finger was grievious in nature. The G ecchymosis inquiries however, were all very simple. Bhaba Nanda did not claim in his statement under section 342 of the Code of Criminal Procedure. 1898 as to with what weapon the injuries were caused on his person. He merely said that Gopinath and Shashi gave blows on his back. He did not attribute the right index finger injury as having been caused by either of the two. No defence witness was examined to give any counter version of the occurrence. Bhaba Nanda did not show his H injuries to the Investigating Officer, as is apparent from his evi._dence, when he arrested him soon after the occurrence. Ne counter informatilm 9-95\SCT/77 F A B · c D. E F f; H 716 SUPREME COURT REPORTS [1978] 1 S.C.R. The prosecution is not obliged to explain the injuries In a case of this was lodged with the police nor any counter case filed. nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that, in all probability. the in juries \Vere caused to him in the same occurrence or as a part of the same ·transaction in which the victims on the side of the prosecution were injured. the person of an accused in all cases and in all circumstances. This It all depends upon the facts and circumstances of is not the law. each case whe1her the prosecution case becomes reasonably doubtful In the instant for its failure to explain the injuries on the accused. case the Sessions Judge was not justified in doubting the truth of version given by the eye witnesses-three of whom were wholly i.nde- pendent witnesses. Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Cort has rightly believed the testimony of the eye witnesses. The question for consideration, however, is whether the conviction of all the three appellants under section 302 with the aid of section 34 of the Penal Code is justified in law. To attract the application of section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. prosecution must prove facts to justify an inference that all the partici pants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Section 38 of the Penal Code says : - In other words, "Where several persons are engaged or concerned in the com mission of a criminal act, they may be guilty of different offences by means of that Act." In Afrahim Sheikh and others v. State of West Beni?al(') Hidayatullah J, as he then was, has pointed out that it was possible to apply the in gredients of section 34 in relation to the commission of an offence under section 304 Part TL even though death is caused with the knowledge of the persons participating in the occurrence that by their act death was likely to be caused. The sharing of the common intention, as pointed out in that case, is the commission of the act or acts by which learned death was occasioned. With reference to Judge observed at page 178 : section 38, the "That is to say. even thouf!h several persons may do a single criminal act, the responsibilitv mav vary according to the degree of their participation. The illustration which is given clearly brings out that point. ' Lastlv section 18 provides that the responsibility for the com pleted criminal act may be of different grades according to the share taken bv the different accused in the completion of the criminal act, and this section does not mention anv thing about intention common or otherwise or knowledge .. " ,. 11) [1964] 6 S.C.R. 172. - - - - B. N. SARMA v. ASSAM ( Untwalia, J.) 71 7 The injuries found on the person of the deceased by P. W. 5 Dr. :S. Kalila, who held the autopsy over the dead body were of a very :severe nature. The fatal injuries in particular were the three head miunes. According to the consistent version of the prosecution-one was caused by Phanidhar with the dolibari and the other two were infli- cted by Harendra with the iron rod. Harendra is also said to have caused the other injuries found on the person of Shashi Mohan. The '!'esult of the three head injuries was fracture of the occipital bone into In the six pieces and fracture of the right parietal bone 2" in length. opinion of the Doctor the death was due to coma as a result of intra cranial haemorrhage caused by the injuries sustained by the victim. The two authors of the injuries, namely, Phanidhar and Harendra, therefore, undoubtedly had shared the common intention of causing such bodily injuries to Shashi Mohan which were sufficient in the ordi In other words, his death nary course of nature to cause his death. was as a result of the criminal acts committed by the said two appell ants in furtherance of their common intention. There cannot be any doubt about it. Their liability for the murder of Shashi Mohan with the aid of section 34 of the Penal Code is fully established. The case of Bhaba Nanda, however, stands on a different footing and can justi- 'flably be separated from that of the other two appellants. A B c D E On the evidence of Gopi Nath himself the result aforesaid follows. Shashi Mohan had reached near him and when he tried to obstruct the accused and prevent them from committing the assault on Shashi Mohan Harendra said "we have met enemy today, need not be freed". There upon Bhaba Nanda caught hold of the hands of Shashi Mohan from be· hind. Phanidhar then gave him the blow on the head, as already stated, with the dolibari. Harendra gave further blows on his head and other parts of his body after Shashi fell down. On these facts it is difficult to conclude that Bhaba Nanda caught hold of the hands of Shaslii sharing the common intention of Phanidhar and Harendra of causing the death of Shashi. He did not utter a word which would justify such a conclusion. He must be aware that his two elder bro thers Phanidhar and Harendra were going to assault Shashi with their respective weapons in their hands. Bhaba Nanda did not use his lathi for causing any injuries on Shashi. The first blow was given by Phanidhar. Thereupon Shashi fell down. Bhaba Nanda's intention, therefore, was to join in the commission of the acts by the other two with the intention of getting Shashi assaulted severely with the know ledge that such an assault in all probability and likelihood might result in the death of Shashi. His participation in the crime, therefore, did not take him to the extent of the sharing of the common intention to G cause his murder. As we have said above, Phanidhar and Harendra undoubtedly shared such an intention as is apparent from the manner of assault by them on Shashi and the severity and force with which the blows were given on his head by both of them with the respective wea pons in their hands. Applying the principle of law under section 38 of the Penal Code, therefore, the case of Bhaba Nanda can be separat- ed from that of the other two. He can be held guilty only under sec- tion 304 Part IT as he had intentionally joined in the commission of an act with the knowledge that the assault on Shashi was likely to re- sult in his death. The facts of this case indicate that Bhaba Nanda F H 718 SUPREME COURT REPORTS [1978] 1 s.c.R. A B shared the common intention of his other two brothers for the com- mission of a lesser offence than mnrder. But while committing the act in furtherance of that common intention, Phanidhar and Harendra deve- loped and shared the common intention of causing bis murder. For the reasons stated above, the appeal of appellants Phanidhar and Harendra is dismissed. The appeal of Bbaba Nanda is partly allow- ed. His conviction is altered from sections 302134 to section 304 Part II read with section 34. The sentence of life imprisonment im posed on him is altered to rigorous imprisonment for 7 years only. The conviction of all the appellants under sections 323/34 is also main· tained. M.R. Appeal allowed in part. "' 1 - 1 -