LexSH. JAGANNATH AND ORS. versus STATE OF UTTAR PRADESH
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A SH. JAGANNATH AND ORS. v. STATE OF UTTAR PRADESH JANUARY 12, 1995 B [DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.) Indian Penal Code, 186(}-Section 302/34 and 324/34--Common inten- tion--Ocular evidence that appellants chased and surrounded deceased when he was attacked by other accused-No role attributed to them in C FIR-Evidence of PWI of their having assaulted deceased with lathis--Whether their common intention was to commit murder-Held, N~Their common intention was to cause injuries to deceased with a deadly weapon-Conviction u/s 302/34--Not sustainable-Accused convicted u/s 324/34. D The three appellants had been convicted u/s 302/34 IPC, for assault- ing the deceased with lathis. A heated altercation took place between the deceased and the accused over dismantling of the mend which divided their respective agricultural lands. While the altercation was going on, the three appellants reached there armed with lathis. Trial Court convicted them E primarily upon the ocular evidence that the appellants assaulted _the deceased with lathis while other accused assaulted him with spear result· ing in his death and thereby concluding that they shared the common intention of committing the murder of deceased. In appeal, the High Court concurred with all the findings recorded by the trial judge and dismissed F the appeal. This appeal had been filed against the judgment of the High Court. Both the courts took into consideration the fact that testimony of PW 1 stood corroborated by the FIR, which he lodged with utmost dis- patch. It was not stated in the FIR that the appellants had also assaulted the deceased much less with lathis. G The respondents urged that even if the testimony of PWl that the three appella':lts assaulted the deceased could be relied upon as he did not attribute any such role to them in the FIR still then their conviction under Section 302 r/w 34 IPC for committing the murder of the deceased should be upheld having regard to the fact that the evidence of PWl that the H appellants had chased and surrounded the deceased when he was attacked 198 .. JAGANNATHv. STATEOFU.P. 199 --~ by the other accused stood corroborated by the FIR and that their such A criminal acts, clearly established their common intention to commit the murder. Allowing the appeal, this Court - HELD : 1.1. In view of the concurrent findings of fact, it would not B have, ordinarily, been justified to disturb the same but on perusal of the - l impugned judgments, it was found that both the courts below failed to consider that PWl did not state in the FIR that the three appellant had assaulted the deceased with lathis. This aspect of the matter assumed importance for, in concluding that the three appellants shared the com- c moo intention of committing the murder of the deceased, with accused and, for that matter, convicting them under Section 302 with the aid of Section 34 Indian Penal Code - while convicting the other accused u/s 302 IPC simplicter, the trial court was much influenced by the fact that the appel- lants assaulted him with spear resulting in this his death. [201-E-G] D 1.2. In the FIR, the only role that was ascribed by PWl to the appellants relating to the attack on the deceased was that when he had run towards the village they had also chased him along with the other two accused and surrounded him. In the FIR he did not state that the appel- lants had also assaulted the deceased. [202-C] E 1.3. Relying upon the sole-testimony of PWl both the courts below took into consideration the fact that his testimony stood corroborated by the FIR which he lodged with utmost dispatch. In view of this material omission it would be hazardous to place implicit reliance upon the state- ment of PWl without any corroborating evidence that the appellants had F along with the other accused assaulted the deceased resulting in his death and that they shared the common intention with the other accused to commit the murder of the dec~ased. [202-D-F] Beside the evidence of PWl of their having assaulted the deceased G with lathies, there was no other evidence to indicate that they wanted the ;.. deceased to be done away with. Though their acts facilitated the stabbing -- of the deceased by the other accused, th~re was nothing to indicate that the appellants knew that he intended to kill him though they must have anticipated that he would assault the deceased with the spear he was
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