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Issues for consideration: (i) Whether based on the evidence led, the appellants could be convicted for the off ence of murder of the two deceased with the aid of s.34 IPC or only for the off ence punishable u/s. 307 IPC r/w. s. 34 IPC;(ii) Whether, on account of not putting the incriminating circumstance of exhortation to the appellants while recording their statements u/s. 313 Cr.PC, appellants’ conviction with the aid of s.34 of the IPC stood vitiated.Penal Code, 1860 – Prosecution case that there was an altercation between two families – The main accused went to his house on Street No.400, fetched his gun and fi red shots at the public present on Street No.300 from roof of one of the row houses – Gunshots resulted in death of two persons and injuries to twenty-six others – Main accused (non-appellant) was convicted u/s. 302 IPC – Appellants were convicted u/s. 302 r/w. s.34 IPC and s. 307 r/w. s.34 IPC – Propriety:Held: A close examination of the statement of the prosecution witnesses (regarding role of appellants) would reveal that, though they disclose the presence of the accused-appellants with main accused at the roof-top as also that they were instigating main accused not to spare the supporters of rival faction, they are not specifi c and consistent to target the said two deceased persons – There is absence of cogent evidence that main accused was instigated/exhorted to fi re shots at the two deceased – The evidence, which is consistent, is about exhorting main accused not to spare rival faction’s supporters – But there is no evidence that the two deceased were rival faction’s supporters – General exhortation is not suffi cient to fasten them with vicarious liability for shots fi red by the main accused at the two deceased – The main accused had taken a vow to teach supporters of the other side a lesson – In that kind of a scenario, even if main accused had not been instigated by any of the other accused, he might have fi red from his weapon to stamp his authority – Therefore, killing of the two deceased could be his own individual act for which he alone would be liable – The prosecution was required to lead clear and cogent evidence that the shots fi red by main accused at the two deceased were in furtherance of common intention of all – In absence whereof, it would be extremely unsafe to convict the appellants with the aid of s.34 of the IPC for the off ence of murder. [Paras 26 and 31]Penal Code, 1860 – s. 307 r/w. s.34 IPC – Conviction under:Held: Evidence is that the appellants were with the main accused, exhorting him not to spare rival faction’s supporters, and pointing at targets – Though, evidence might not be specifi c as to who in particular was targeted at the behest of the appellants but the very fact that indiscriminate fi ring continued for long, say 20-25 minutes and the appellants were found present and exhorting main accused to fi re, it could be said with certainty that the appellants had knowledge that the act which the main accused was exhorted to commit was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death of a person (Section 300 (Fourthly) of the I.P.C along with illustration (d) thereto) – Therefore, the gunshots fi red by the main accused at several by-standers/supporters of rival faction, if not all, could be said to be a criminal act done by several persons in furtherance of the common intention of all – The appellants are liable to be convicted for the off ence punishable u/s. 307 with the aid of s.34 of the IPC [Paras 32 and 33]Penal Code, 1860 – s. 34 – Common intention – Necessity:Held: To fasten liability with the aid of s.34 of the IPC what must necessarily be proved is a common intention to commit the crime actually committed and each accused person can be convicted of that crime, only if it is in furtherance of common intention of all – Common intention pre-supposes a prior concert, though pre-concert in the sense of a distinct previous plan is not necessary as common intention to bring about a particular result may develop on the spot – The question whether there was any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case – The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an off ence with which they could be convicted. [Para 29]Criminal Procedure Code, 1973 – Effect of not putting the incriminating circumstance of exhortation to the appellants while recording their statements u/s. 313 of the Cr.PC, 1973:Held: The legal position that emerges, inter-alia, is that to enable an accused to explain the circumstances appearing in the evidence against him, all the incriminating circumstances appearing against him in the evidence must be put to him – But where there has been a failure in putting those circumstances to the accused, the same would not ipso facto vitiate the trial unless it is shown that its non-compliance has prejudiced the accused – Where there is a delay in raising the plea, or the plea is raised for the fi rst time in this Court, it could be assumed that no prejudice had been felt by the accused – In the instant case, appellants were aware of the prosecution case against them as they were apprised of the FIR lodged by PW-2 which delineated their role as the ones who exhorted the main accused to fi re gunshots – Taking the above into account as also that the appellants were throughout represented by their counsel and had cross-examined the prosecution witnesses, yet they raised no such plea, either before the trial court or the High Court, it can safely be assumed that the appellants had suff ered no prejudice on that count. [Para 45] |
