LexBHABA NANDA SARMA & ORS. versus THE STATE OF ASSAM
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
I
A
B
c
D
714
BHAllA NANDA SARMA & ORS.
v.
THE STATE OF ASSAM
October 12, 1977
[P. K. GOSWAMI, N. L. UNTWALIA AND D. A. DESAI, JJ.J
Indian Penal Code, S. 34 vis-a-vis s. 38-As.sault by conunon intention
to
cause injury likt{V to result in death-Devclopn1c11t of furthtT t-'0111n1011 intcn-
tioo amo11R some a.,saila11ts to commit murdcr~Liability for 11111nlcr whether
1
shared by all pa1ticipa!lfs under s. 34.
The three app{·llants assaulted deceased Shdshi Mohan with the con1rnon in-
tention to cause injury likely to result in his death, but during the assault, t\VO
of them developed a
further
con1mon
intention of
n1urdering
him.
The
sessions Court tried the appellants for charges u/ss. 302/34 and :"IS.
323/34
J.P.C·. but giving them the benefit of doubt, acquitted them.
ln a State a·ppcal,
the High Court set aside the acquittal order, rind convicted a11 the assailants
sentencing 1he1n for life.
This Court considered the question whether the conviction of all the three
appellants u/s. 302 with aid of s. 34 I.P.C. W<JS justified in law, and partly allow-
ing only the a·ppeal of Bhaba Nanda Sarma.
HELD :-Applying the principle Of law under s. 38 of the Penal Code, the
case of Bhaba Nanda can be separated from that of his tVl'O brothers. 1-fe shared
their common intention to assault, with the knowledge that it \Vas likely to re-
sult in death but while committing the act in furtherance of that comtnon in-
tention, the other two developed and shared the common intention of causing the
murder.
Bhaba Nanda can, therefore, be held guilty only u/s. 304 Part II while
the other two apP,ellants arc liable for the murder with the aid of s.
34 of the
Peml Code. [717 G-H, 718 A-BJ
E
Afrahiin Sheikh and Ors. v. State of West
Bcn[:;af [1964] 6
S.C.R. 172
F
G
H
referred to.
CRIMINAL APPELLATE JURISDICTION
of 1972.
Criminal Appeal No. 155
Appeal by Special Leave from the Judgment and Order dated the
24-11-1971 of the Assam and Nagaland High Court at Gauhati in Cri-
minal Appeal No. 20 of 1968.
S. K. Nandy for the Appellants.
S. N. Choudhary for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is an appeal under section 2(}a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act. 1970 by
three persons who are brothers.
On the 10th of November. 1967 at
alxrnt 7.00 A. M. an occurrence took place in a village near Barpeta in
Assam.
The prosecution case was that Shashi Mohan Sarma. a person
who lost his life as a result of the assault on him, in the company of his
cider brother Gopi Nath Sarma. P.W. 2, was proceeding to his field with
some mustard seeds in a basket. Gopi Nath was going with some cattle
to tether them in the field.
When they proceeded to some
distance
Shashi Mohan was chased by the three appellants, appellant Bhaba
Nanda Sarma who was aged about 20 years at the time of the occur-
..
-
-
-
B. N. SARMA v. ASSAM (Untwalia, I.)
715
rence was armed with a lathi, appellant Phanidhar Sarma had a dolibari
A
(a wooden hammer with along handle) and appellant Harendra Nath
~arma carried an iron rod in his hand. They all chased Shashi Mohan.
Shashi Mohan ran towards his brother Gopi Nath raising alarm. Bhaba
Nanda caught hold of both the hands of Shashi Mohan from behind.
Thereupon, Phanidhar gave him a blow on his head with the dolibari.
Shashi Mohan fell down. Thereafter Harendra struck Shashi Mohan on
his head and other parts of his body with the iron rod. Gopi Nath tried
B
to intervene. Bhaba Nanda caught hold of Gopi Nath also Harendra
assulted him with the iron rod causing injuries.
Shashi Mohan was
taken to the hospital where he died at about 3.00 A.M. on the 1 lth o[
November, 1967 as a result of severe injuries caused to him by Phanidhar
and Harendra.
The injuries inflicted on Gopi Nath were all simple in
nature.
After charge-sheet by the police and committal by the Magis-
trate, the appellants were tried in the Sessions Court for charges under
C
section 302 read with section 34 and section 323 read with section 34
of the Indian Penal Code.
The Trial Judge gave them the benefit of
doubt and acquitted them.
The State of Assam filed an appeal in the
High Court of Gauhati.
The High Court set aside the order of acquit-
tal, convicted all the three appellants for the offence of murder of Shashi
Mohan with the aid of section 34 and sentenced each of them to impri-
rnnment for life.
TheirExcerpt shown. Read the full judgment & AI analysis in Lexace.