LexBIRENDRA DAS & ANR. versus STATE OF ASSAM
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[2013] 7 S.C.R. 179 BIRENDRA DAS & ANR. v. STATE OF ASSAM (Criminal Appeal No. 1130 of 2010) JULY 1, 2013 [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.) PENAL CODE, 1860: A B s.302 read with s.34 - Murder - Common intention - c Conviction by courts below - Held: Appellants were not on lookers -- Their intention is clearly reflectib/e from their presence with weapons at the place of occurrence till the commission of the crime and thereafter dragging the dead body to the courtyard of one of the accused-appellant -- Thus, 0 it cannot be said that s.34 of /PC .is not attracted - In the circumstances establishing of any motive is inconsequential - Criminal law - Motive. Out of the nine accused named in the FIR, three were declared absconders, three being juveniles, were referred E to juvenile court and the remaining three were prosecuted for committing the murder of the father of PW- 1. The case of the prosecution was that all the nine accused hacked the deceased with deadly weapons causing his death. Thereafter they dragged his body to F the courtyard of accused-appellant no. 1 and severed his limbs. When PW-2 tried to intervene, he was also attacked which resulted into injury on the finger of his left hand. The trial court convicted the two appellants u/s 302/34 IPC and sentenced them to rigorous imprisonment for life. The G High Court affirmed their conviction and sentence. In the instant appeal it was contended for the appellants that s.34 IPC was not attracted as no overt act 179 H 180 SUPREME COURT REPORTS [2013) 7 S.C.R. A was attributed to' the appellants nor was there anything on record to show that they shared any common intention; and that the record did not show any motive for the alleged crime. B Dismissing the appeal, the Court HELD: 1.1 Undisputedly, the death of the deceased was homicidal in nature as proved by the medical evidence. PW-1, the son of the deceased, has categorically stated about his father getting the blows C and falling down. He has mentioned the names of the appellants to be present there. It has come out in his testimony that when he tried to go near his father, they tried to attack him and out of fear he ran away and informed his paternal uncle (PW-2). In the cross- D examination, he has stood embedded in his version and the suggestion that he h_ad not seen the occurrence has been strongly denied. His testimony is corroborated by PW 5 and the injured eye-witness PW-2. The injury of PW- 2 was proved by PW-4, the doctor who had medically E examined him. Similar is the evidence of other prosecution witnesses. Considering these aspects along with the factum that the dead body was seized from the courtyard of accused-appellant no. 1, it cannot be said that the eye-witnesses who have been cited as such are F really not eye-witnesses and they have been planted. [para 8-13] (186-A, B, F-H; 187-A-B, C, E-F] 1.2 Though PW-1, son of the deceased, has stated that the appellants were present at the scene of occurrence, but that is not the only evidence against G them. It is also seen in the evidence of others that the appellants were armed with weapons and dragged the dead body of the deceased to the courtyard of accused- a p pe Ila n t no. 1. Both the accused-appellants were charged for the substantive offence u/s 302 IPC in aid of H s.34. The conditions precedent which are requisite to be BIRENDRA DAS & ANR. v. STATE OF ASSAM 181 satisfied to attract s.34 IPC are that the act must have A been done by more than one person· and the said persons must have shared a common intention either by omission or commission in effectuating the crime. A separate act by each of the accused is not necessary. In the case at hand, the appellants were not onlookers. B Their intention is clearly reflectible from their presence with weapons at the place of occurrence till the commission of the crime and thereafter dragging the dead body to the courtyard of accused-appellant no. 1. Thus, it cannot be said s.34 of IPC is not attracted. [para c 17] [187-G-H; 188-A, B-D; 189-G; 190-A] Mohan Singh v. State of Punja 1962 Suppl. SCR 848 = AIR 1963 SC 174; Lal/an Rai and Others v. State of Bihar 2002 (4) Suppl. SCR 188 = 2003 (1) SCC 268; Goudappa and Others v. State of Karnataka (2013) 3 sec 675 - relied D on. Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1- relied on. 2. On acceptation of the direct evidence on record on proper scr
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