LexDUKHMOCHAN PANDEY AND ORS. versus STATE OF BIHAR
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A B c DUKHMOCHAN PANDEY AND ORS. v. STATE OF BIHAR SEPTEMBER 25, 1997 [G.N. RAY AND G.B. PATTANAIK, JJ.] Criminal law : Indian Penal Code, 1860 : Sections 302134 and 325134-Applicability of-Common intention- Stages at which, can be formed-Held, can be formed previously or on the spot during the progress of the crime-Common intention may develop at the spur of the moment in the course of commission of the offence-However, D common intention developed at the spur of the moment formed at the latter stage is distinct from similar intention actuating several persons simultaneously-Existence of common intention in all the persons who made some overt act resulting in the death of some persons, is a question of fact which can be inferred from the circumstances. E Criminal Trial : Wounds and weapons-nature of-Relevant in determining the existence of common intention of persons doing a criminal act-Question of fact. Injured witnesses-Uniformity in statements of-Held, not sufficient F ground to hold them to be tutored witnesses and discard their evidence, particularly when the Trial Court as well as the High Court had found the same to be reliable corroborating the evidence of the star witness-Penal Code-Sections 302134 and 147-Trial under. FIR~Written by eyewitness-Some embellishment in-On facts, held, G not sufficient to reject the entire prosecution case-Penal Code-Sections 302134 and 147-Trial under. Witnesses-Eye witnesses-FIR written by-8ome embellishment in such FIR-In the particu/arfacts, held, not sufficient to hold him to be an unreliable H witness-Penal Code-Sections 302134-Trial under. 276 D. PANDEY v. STATE OF BIHAR 277 Criminal Procedure Code, 1973 : Section I 61-Delay in recording statements of witnesses under-On facts, held, not fatal. Constitution of India : Article I 36-Criminal appea/-Reappreciation of evidence-Held, ordinarily Supreme Court does not reappreciate the evidence but is not barred from doing so if interest of justice so demands. A B The prosecution case was that one day when the labourers of informant PW-18 were transplanting paddy on his field, a mob of about 200 people armed C with various deadly weapons came to the field and asked the labourers to stop working. On being objected by tne informant, PW-18, to such high-handed action of the mob, two persons U-1 and U-2 from the mob directed the mob to kill the labourers. Thereafter two persons from the mob, including the appellant, fired from their respective guns, as a result of which two persons D Rand A fell down and died. PW-18 hid himself in a nearby field. In the meantime the Police along with the Magistrate camping in the village because of the tension, arrived at the scene of the occurrence when the accused ran away. The Trial Court convicted all the accused persons under Sections 302/ 149 and 302/34 IPC and sentenced them to imprisonment for life. In addition, some of the accused persons were convicted under Section 147 and rest under E Section 148 IPC but no separate sentence was awarded under these Sections by the Trial Judge. On appeal, The High Court on scrutiny of the evidence afresh, set aside the conviction and sentence under Section 302/149 but upheld the conviction on other counts including the conviction and sentence under Section 302/34. Hence this Appeal. The accused appellants contended that the charge under Section 149 having failed before the High Court and the object of the assembly being to desist the labourers of PW-18 from transplanting the paddy, unless and until it could be established that the assailants developed a common intention at F the spur of the moment on the spot of the occurrence to kill the deceased G persons, the conviction under Sections 302/34 could not be sustained. They further contended that as the gunshot injuries were not on the vital part of the body, the person alleged to have given the gunshot injuries could not be held liable for the offence of murder. Partly allowing the appeals, this Court H 278 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R. A HELD : 1.1. The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 IPC and such intention could be formed previously or on the spot during the progress of the crime. Usually, it implies a prearranged plan which in turn presupposes a prior meeting of mind. But in a given case, such common intention may B devel
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