LexNANDU RASTOGI @ NANDJI RASTOGI AND ANR. versus STATE OF BIHAR
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A B ., NANDU RASTOGI @ NANDJI RASTOGI AND ANR. v. ST ATE OF BIHAR OCTOBER I, 2002 [N. SANTOSH HEGDE AND B.P. SINGH, JJ.] Penal Code, 1860: Seel-ion 302 read with Section 34-Convictio12 under-Prosecution case C suppo_rted by witnesses-No a/legation of assault against one of the accused and yet he too was convicted-Conviction of the accused-Justification of- Held, justified as common intention of the accused to commit murder was proved-Arms Act, 1959-Section 27. D Section 34-Applicabi/ity of-Held, to attract the Section it is not necessC!ry that each one of the accused mus.r assault-it is enough that they shared common intention to commit the offence and in furtherance thereof each one played assigned role by doing separate acts, similar or diverse. Appellants and another accused • J' were tried for having committed E murder of a person. Prosecutiol) case was that the three accused alongwith 2 unknown persons came armed with cov1ntry made pistol. While PWl- informant was sitting in his shop with his son (deceased) alongwith other persons, two of the accused and another vinknown person caught hold of the deceased and took him inside the residential apartment of his house and shot him dead. Others were threatened by another accused and an F unknown person with country made pistols. Prior to the incident one of the accused had administered threat to PWl-informant. The motive of the murder was that appellant-accused who had subsequently purchased the house sold by PWt, wanted one of the tenants in the shop in the premises to be evicted, to which the deceased objected. FIR was lodged immediately G after the incident. PW-2, mother of the de1:eased who was inside the house, is said to have seen accused 'N' shooting the deceased, when she was H coming out of the house on being informed by her grandson that dacoits had entered their shop. PWs I, 3, 5 supported the prosecution case. All the witnesses identified the appellants-ac,cused and accused 'J'. Trial Court convicted appellants and accused 'J' u/s 302/34 IPC and 30 NAN DU RASTOGI @NANDJI RASTOGI v. STATE OF BIHAR 31 u/s 27 of Arms Act, 1959. Conviction was upheld by High Court. Appeal of accused 'J' to this court was dismissed as he did not surrender. Appellants contended that prosecution case is not reliable in view of non-examination of grandson of PW!; and that conviction of accused 'B' was not justified as there was no allegation that he took part A in the assault. B Dismissing the appeals, the Court HELD: 1.1. There is hardly anything in the cross-examination of the .witnesses which may cast a doubt on the truthfulness of testimony of PWs 1,2,3 and 5. Their credibility has not been impeached. They are natural C witnesses and have deposed in a forthright manner. There is no reason to interfere with the findings recorded by the trial court and the High Court. 135-E, FJ 1.2. The failure of the prosecution to examine the grand child of the D informant does not in any manner adversely affect the prosecution case, particularly when large number of witnesses who are found to be reliable have supported the case of the prosecution. The fact that the accused had reasons to be unhappy with the conduct of the deceased and his father, cannot be disputed, and in fact, earlier in the evening appellant 'N' had administered a warning to the informant in the presence of PW5. The First E Information Report was lodged promptly and there was, therefore, no opportunity for the prosecution to concoct a false case. The actual killing was witnessed by the mother of the deceased, PW2, which is only natural because she was inside the house. The evidence on record, therefore, leaves no room for doubt that relations between appellants on the one hand and the informant and his son on the other hand were strained. 135-G, H; 36-A, BJ 2. To attract Section 34 I PC it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they F shared a common intention to commit the offence and in furtherance G thereof each one played his assigned role by doing separate acts, similar or diverse. The facts of this case are eloquent and the role of accused '8' in. preventing the prosecution witnesses from going to the rescue of the deceased was the role played by him witlr a view to achieve the ultimate objective of killing the deceased. There is no doubt that all the five persons who came to
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