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CASE NO.:

Appeal (crl.) 284-286 of 2003

PETITIONER:

Dani Singh and Ors.

RESPONDENT:

State of Bihar

DATE OF JUDGMENT: 12/03/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J.

A Division Bench of the Patna High Court found the

appellants guilty of offences punishable under Section 302

read with Section 34 of the Indian Penal Code, 1860 (in

short the 'IPC'). In addition, appellants Lakhan Singh,

Janardan Singh, Ram Janam Singh, Dani Singh, Raghu Singh,

Ram Charitar Singh and Chandar Singh were found guilty of

offence punishable under Section 201 IPC and sentenced each

to undergo five rigorous imprisonment with a fine of

Rs.3,000/- with default stipulation. It directed that the

fine on realisation was to be paid to the informant by way

of compensation. Appellant Lakhan Singh was additionally

convicted for offence punishable under Section 436 IPC to

undergo life imprisonment.

The present appeals have been filed by 21 persons.

Twenty seven persons were named in the FIR and charge sheet

was filed initially against 24 persons. In terms of Section

319 of the Code of Criminal Procedure, 1973 (in short the

'Code'), three more persons were added. Twenty seven persons

were convicted by the trial Court and all of them filed

appeals before the High Court. It has to be noted, as stated

by learned counsel for the appellants, that one of them

Lakhan Singh has served out the sentence, and two others

namely Balinder Singh and Gaya Singh were absconding. Three

of the accused persons died during pendency of the appeal

before the High Court.

Prosecution version which led to the trial in a

nutshell is as follows:

On 6.7.1983, informant Ramu Yadav (PW-11), after easing

was returning to his house at about 8 a.m. and his uncle

Kishun Yadav (hereinafter described as 'deceased D-1') at

that time was also returning to his house from the northern

direction and he was ten yards ahead of the informant. When

the informant and the deceased Kishun reached a lane near

the house of Sadhu Kahar, the informant saw a number of

persons variously armed with Saif, Garasa, Bhala, guns etc.

coming out from the Dalan of Bhuneshwar Singh who all

challenged deceased Kishun and attacked him. Appellant

Lakhan Singh, who was carrying a bag, took out a bomb from

his bag and hurled it on deceased Kishun, who after

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receiving injury, managed to enter the house of his cousin

Phekju Yadav (PW-6). Following him, all the appellants

alongwith Biro Singh, Pragash Singh and Ram Singh (all the

three since dead) along with 15 to 20 others, variously

armed entered the house of Pheku Yadav. The informant also,

following the appellants and their companions, entered the

house of his uncle Pheku Yadav (PW-6). In the meantime,

Gopi Yadav, father of informant (hereinafter referred to as

'deceased D-2') also reached there and, thereafter both

deceased, Gopi and Kishun climbed on the Matkmotha (box

room) in order to save their lives. Appellants Lakhan

Singh, Ram Charitar Singh, Ram Janam Singh, Chhotan Singh,

Raghu Singh, Balindra Singh, Manoj Singh, Bhola Singh, Baban

Singh, Nandu Singh, Yado Singh and ten to fifteen unknown

persons also, along with weapons, climbed from outside to

the roof of house and other appellants remained in the

courtyard and verandah of the house. The appellants, who had

climbed went to Matkotha, started assaulting both the

deceased with guns, Bhala, Saif etc. The appellants, who had

gone on the roof of the house, uprooted the tiles and bamboo

sticks of Matkotha and appellant Lakhan Singh, after

sprinkling kerosene oil on the roof, set fire and,

thereafter the appellants, who had climbed on Matkotha,

dragged deceased Kishun and Gopi to the verandah where they,

after piercing Garasa, Bhala, Saif, killed them. Thereafter,

appellant Raghu Singh, Janardhan Singh, Ram Charitar Singh,

Ram Janam Singh, Dani Singh, Chander Singh, Lakhan Singh

along with co-accused Biro Singh carried the dead bodies on

a cot towards eastern side of village and other appellants,

after scrapping the blood which had fallen on the ground

with straw, put it in a nearby well and they also washed the

blood drops from the walls of the house by water and mud

and, thereafter, they also went following the dead bodies.

After some time, the informant saw smoke and flames of fire

rising from the side of eastern boundary of his village

where the appellants had burnt the dead bodies. They

remained at the place of burning for about two hours, and

thereafter they again came back to the houses of informant

(PW-11) and Pheku Yadav (PW-6) and took away rice, wheat,

gram, clothes, ornaments, pots etc. The occurrence was

witnessed by female members of the family of informant

including his mother, aunt, sister, wife of brother of Pheku

Yadav (PW-6) and number of other villagers. Old enmity,

giving rise to number of cases between the prosecution party

and appellants, was stated to be the motive of the

occurrence. The fardbayan of informant was recorded on the

day of occurrence at 8.30 p.m. by Sub Inspectort Uzair Alam

(PW-13). The informant, in his fardbayan stated that because

appellants did not allow him to leave the house, he could

not go to the Police Station earlier. On the basis of

fardbayan of informant, a case under Sections 147, 148, 149,

302, 201, 436, 380, Indian Penal Code, Section 27 of Arms

Act, 1959 (in short 'Arms Act') and Sections 3, 4, 5 of

Explosives Substances Act, 1908 (in short 'Explosives Act')

against all the twenty four appellants alongwith Biro @

Birendra Singh, Pragash Singh and Ram Singh and fifteen to

twenty unknown was registered and police, after

investigation, submitted charge sheet against the appellants

and Biro @ Birendra, Pragash Singh and Ram Singh. Charges

under Sections 302/149, 201 and 380, Indian Penal Code were

framed against the appellants and Biro @ Birendra, Pragash

Singh and Ram Singh and after trial, the appellants were

found guilty and were convicted and sentenced, as indicated

above. Biro @ Birendra, Pragash Singh and Ram Singh were

also convicted and sentenced to undergo rigorous

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imprisonment for life under Section 302 read with Section

34, Indian Penal Code. Biro Singh @ Birendra was further

convicted and sentenced to undergo rigorous imprisonment for

five years and to pay a fine of Rs.3000/-. All the aforesaid

three persons died during the pendency of the appeal before

the High Court. The accused persons pleaded that on the date

of occurrence appellants Nawal Singh and Indu Singh were not

present in the village. Prior to the alleged occurrence two

persons namely Saudhi Singh and Arjun were murdered and

after their murder, both the deceased had left their village

with the family members and were living somewhere else.

Therefore, they were not living in the village where they

claimed to have been murdered. The accused persons have been

implicated on the account of previous enmity. Four witnesses

were examined to further this version. In order to prove

its accusations, prosecution examined 15 witnesses out of

whom Ramu Yadav (PW-11) is the informant and deceased Kishun

Yadav and Gopi Yadav (hereinafter referred to as D-1 and D-

2) were his uncle and father respectively. It was claimed

that apart from PW-11, Kishun Rajwar (PW-1), Lalo Mahto (PW-

2), China Devi (PW-3) and Kamli Devi (PW-10) were

eyewitnesses. During investigation, blood stained soil,

burnt tiles and remnants of exploded bombs were seized from

a lane near to the house of Shiv Nandan Kumar and a house of

Pheku Mahto (PW-6). Police also recovered straws from the

well of PW-6 and seized burnt wood, tender bamboo and pieces

of woods and bones from the place known as Hadsai pyne, and

scattered grains from the house of Pheku Mahto (PW-6). The

trial Court found the evidence of the witnesses to be

credible and cogent. It noticed that though China Devi (PW-

3) and Kamli Devi (PW-10) were related to the deceased,

Kishun Rajwar (PW-1) and Lalo Mahto (PW-2) were independent

witnesses who were in no way related to the deceased

persons. They had proved their presence. Placing reliance

on their evidence the accused persons as noted above were

found guilty.

In appeal, the conclusions of the trial Court were

affirmed. It is to be noted that though a plea of alibi was

raised by two of the accused persons, the evidence tendered

to prove the alibi was discarded finding it to be unreliable

and irrelevant.

Learned counsel for the appellants submitted that the

evidence on record does not justify any conviction. The

prosecution version was full of contradictions and

exaggerations. Though PWs 1 and 2 were held to be not

related to the deceased persons, the accepted position was

that they were friendly with the deceased and other eye-

witnesses. The genesis of the dispute has been suppressed as

the first information report regarding the occurrence given

by Rajendra Mahto (PW-25), as admitted by the Investigating

Officer has not been taken note of. The same has been

suppressed and an anti dated manipulated FIR has been

brought on record. It has not been explained as to why both

the deceased would run to the house of PW-6. If the

prosecution version is accepted that a bomb was thrown on

deceased Kishun, and he ran towards to his house, there is

no reason indicated as to why the deceased Gopi would also

run to the house of PW-6. It is strange that the

eyewitnesses also went to the house of PW-6. Twenty seven

accused persons were stated to be separately armed in a mob

out of 40-50. It is a very exaggerated scenario presented by

the prosecution that the accused persons killed the deceased

after dragging them out from a place where they were hiding,

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several persons carried them on a cot and burnt the bodies

and wiped off the blood with hay and threw them to the well

of PW-6. When the accusation of looting, punishable under

Section 380 IPC has not been established, the exaggeration

is clearly patent. Actual killing has not been attributed to

anybody in particular. There was considerable delay in

lodging the FIR. When the accused persons have stated to

have declared that no other person would be touched, there

was no reason for the apprehension as stated by the eye-

witnesses for lodging information late. A totally improbable

case has been foisted. Some of the witnesses have said about

explosion of three or four bombs; but others have said about

only one and latter is the prosecution version. The story of

common intention or common object as introduced by the

prosecution has not been established. Nothing has been shown

as to how and when the alleged unlawful assembly was formed.

Actual participation has not been attributed. The so-called

eye-witnesses have not identified all accused persons, and

each has only identified some. The plea of PW-1 that he

followed the accused persons when they were carrying the

dead bodies does not inspire confidence. No explanation has

been offered as to why the witnesses did not go to the

police station though the burning of the bodies allegedly

took more than one hour. It has come on evidence that a live

bomb was found in the house of PW-6. There is no evidence as

to who put it there. The evidence of PW-6 and PW-11 do not

reconcile with each other. There was no call or exhortation,

which is associated with a case of unlawful assembly or

common intention or common object. Some of the eyewitnesses

said that they came out on hearing the explosion. If that be

so, the accused persons who did not do any particular overt

act may have also come out on hearing the explosion. It is

the prosecution version that the police came on hearing a

rumor about some incident. It has not been established as to

what was the source and why the police came.

In response, learned counsel for the State submitted

that it is not a case where there was any animosity,

individual in character. On the contrary the evidence

clearly established and proved, as noticed by the Courts

below, in a faction ridden village the assaults were on

account of faction fighting. The so-called information given

by Rajendra Mahto has been discarded by the trial Court.

Even approach to this Court did not bring any relief to the

appellants who during trial had tried to press into service

such a plea. If he was such a material witness, no reason

has been indicated by the appellants as to why he could not

be examined as a defence witness. The evidence of IO clearly

says that no such person was there. PW-11's evidence is

clear and cogent that he was behind the deceased Kishun and

when on account of the bomb explosion, the deceased Kishun

ran out of anxiety, the other deceased followed him. The IO

has found the remnants of explosion. There is no

inconsistency in the evidence. The houses of the deceased

persons were in close vicinity. Deceased Gopi's house was at

a distance of 7/8 yards from the place where the first bomb

exploded. It is a natural human conduct that somebody would

go out after hearing the sound of explosion. In this case

the deceased Gopi was behind him and others PWs came late.

There was nothing unusual and unnatural in going to PW-6's

house. All the witnesses have identified and stated about

the presence of the accused persons in PW-6's house. It is

immaterial whether one witness identifies all, or some of

them identify some of the accused persons. The evidence is

consistent so far as the identification of the accused

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persons, and the weapons carried by them are concerned.

There was positive enmity of the accused persons with the

deceased persons. It is the prosecution version that 11

persons climbed to drag out the deceased persons from the

place where they were hiding. There has been even no

suggestion given that others who did not scale the roof

either stopped them from doing it or withdrew. That may have

to some extent for argument sake substantiated the plea of

appellants that some of them were by-standers. It is on

evidence that while some of them scaled the roof, others

were waiting on the verandah. The IO had recovered blood

stained hay from the well. Eight of the accused persons

carried the dead bodies of deceased on a cot for the purpose

of burning. There is nothing on record to throw doubt about

the objective findings recorded by the IO. It is established

that the accused persons who were cleaning the bloodstains

also joined the group who had carried the dead bodies for

the purpose of burning. The evidence is clear in respect of

the three places of occurrence i.e. (i) the place where the

bomb was thrown on deceased Kishun, (ii) the house of PW-6

and (iii) the place of burning. It is relevant to note that

the place where the dead bodies were burnt was not a normal

burial place. The IO had found that a pit was dug and smell

of kerosene oil was there. It is a case where PWs were

threatened by the accused persons, if they tried to rescue

the deceased persons. The evidence of PW-6 that when he

requested the accused persons not to assault the deceased,

he was told that he should not interfere otherwise he would

also be killed. The evidence clearly shows that the targets

were the deceased persons. Evidence of PW-10 shows that when

she tried to save the accused persons, the accused persons

specifically told her that the deceased were the target and

others should not interfere. The police station was 32 K.M.

away. If the defence version is that the deceased and the

eyewitnesses were ill-disposed towards them, there is no

reason to falsely implicate so many persons. The village

being a faction ridden one, there is no scope for any

independent witnesses coming forward.

It is to be noted that definite roles have been

attributed to the accused persons. Eleven of them have

scaled the roof and dragged out the deceased. Eight of them

carried the dead bodies for the purpose of burning. So far

as cleaning the blood and throwing dead bodies to the well

etc. is concerned the accusations are general in nature.

Though the evidence of PWs 1 and 2 were attacked on the

ground that it was partisan, we find nothing has been

brought on record to cast any doubt on the veracity of their

statement. Merely because the witnesses are related or

friendly with the deceased, that will not be a ground to

discard their evidence. The only thing the Court is required

to do is to carefully scrutinise the evidence and find out

if there is scope for taking a view about false implication.

Further since there are some exaggerations or minor

discrepancies, that would not be sufficient to cast doubt on

the evidence.

In the instant case, the eyewitnesses have

categorically stated in detail the manner of assault and the

roles played by the accused persons. It is also a common

evidence that the targets were the deceased persons. When

large number of persons armed with weapons do a series of

acts by throwing bombs, dragging out the victims,

indiscriminatingly assaulting them, burning the dead bodies,

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it is but normal and natural that fear psychosis would

develop. This is what precisely has happened, if the version

of the eyewitnesses is accepted. PWs 6 and 10 apart from

other eyewitnesses have categorically stated that when they

tried to come to the rescue of the deceased, they were

threatened and asked not to interfere lest they would be

killed.

Sections 34 and 149 IPC deal with common intention and

common object respectively.

The emphasis in Section 149 IPC is on the common object

and not on common intention. Mere presence in an unlawful

assembly cannot render a person liable unless there was a

common object and he was actuated by that common object and

that object is one of those set out in Section 141. Where

common object of an unlawful assembly is not proved, the

accused persons cannot be convicted with the help of Section

149. The crucial question to determine is whether the

assembly consisted of five or more persons and whether the

said persons entertained one or more of the common objects,

as specified in Section 141. It cannot be laid down as a

general proposition of law that unless an overt act is

proved against a person, who is alleged to be a member of

unlawful assembly, it cannot be said that he is a member of

an assembly. The only thing required is that he should have

understood that the assembly was unlawful and was likely to

commit any of the acts which fall within the purview of

Section 141. The word 'object' means the purpose or design

and, in order to make it 'common', it must be shared by all.

In other words, the object should be common to the persons,

who compose the assembly, that is to say, they should all be

aware of it and concur in it. A common object may be formed

by express agreement after mutual consultation, but that is

by no means necessary. It may be formed at any stage by all

or a few members of the assembly and the other members may

just join and adopt it. Once formed, it need not continue to

be the same. It may be modified or altered or abandoned at

any stage. The expression 'in prosecution of common object'

as appearing in Section 149 have to be strictly construed as

equivalent to 'in order to attain the common object'. It

must be immediately connected with the common object by

virtue of the nature of the object. There must be community

of object and the object may exist only up to a particular

stage, and not thereafter. Members of an unlawful assembly

may have community of object up to certain point beyond

which they may differ in their objects and the knowledge,

possessed by each member of what is likely to be committed

in prosecution of their common object may vary not only

according to the information at his command, but also

according to the extent to which he shares the community of

object, and as a consequence of this the effect of Section

149, IPC may be different on different members of the same

assembly.

'Common object' is different from a 'common intention'

as it does not require a prior concert and a common meeting

of minds before the attack. It is enough if each has the

same object in view and their number is five or more and

that they act as an assembly to achieve that object. The

'common object' of an assembly is to be ascertained from the

acts and language of the members composing it, and from a

consideration of all the surrounding circumstances. It may

be gathered from the course of conduct adopted by the

members of the assembly. What the common object of the

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unlawful assembly is at a particular stage of the incident

is essentially a question of fact to be determined, keeping

in view the nature of the assembly, the arms carried by the

members, and the behaviour of the members at or near the

scene of the incident. It is not necessary under law that

in all cases of unlawful assembly, with an unlawful common

object, the same must be translated into action or be

successful. Under the Explanation to Section 141, an

assembly which was not unlawful when it was assembled, may

subsequently become unlawful. It is not necessary that the

intention or the purpose, which is necessary to render an

assembly an unlawful one comes into existence at the outset.

The time of forming an unlawful intent is not material. An

assembly which, at its commencement or even for some time

thereafter, is lawful, may subsequently become unlawful. In

other words it can develop during the course of incident at

the spot eo instanti.

Section 149, IPC consists of two parts. The first part

of the section means that the offence to be committed in

prosecution of the common object must be one which is

committed with a view to accomplish the common object. In

order that the offence may fall within the first part, the

offence must be connected immediately with the common object

of the unlawful assembly of which the accused was member.

Even if the offence committed is not in direct prosecution

of the common object of the assembly, it may yet fall under

Section 141, if it can be held that the offence was such as

the members knew was likely to be committed and this is what

is required in the second part of the section. The purpose

for which the members of the assembly set out or desired to

achieve is the object. If the object desired by all the

members is the same, the knowledge that is the object which

is being pursued is shared by all the members and they are

in general agreement as to how it is to be achieved and that

is now the common object of the assembly. An object is

entertained in the human mind, and it being merely a mental

attitude, no direct evidence can be available and, like

intention, has generally to be gathered from the act which

the person commits and the result therefrom. Though no hard

and fast rule can be laid down under the circumstances from

which the common object can be culled out, it may reasonably

be collected from the nature of the assembly, arms it

carries and behaviour at or before or after the scene of

incident. The word 'knew' used in the second branch of the

section implies something more than a possibility and it

cannot be made to bear the sense of 'might have been known'.

Positive knowledge is necessary. When an offence is

committed in prosecution of the common object, it would

generally be an offence which the members of the unlawful

assembly knew was likely to be committed in prosecution of

the common object. That, however, does not make the converse

proposition true; there may be cases which would come within

the second part but not within the first part. The

distinction between the two parts of Section 149 cannot be

ignored or obliterated. In every case it would be an issue

to be determined, whether the offence committed falls within

the first part or it was an offence such as the members of

the assembly knew to be likely to be committed in

prosecution of the common object and falls within the second

part. However, there may be cases which would be within

first offences committed in prosecution of the common

object, but would be generally, if not always, with the

second, namely, offences which the parties knew to be likely

committed in the prosecution of the common object. (See

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Chikkarange Gowda and others v. State of Mysore (AIR 1956

SC 731.)

The other plea that definite roles have not been

ascribed to the accused and, therefore, Section 149 is not

applicable, is untenable. A 4-Judge Bench of this Court in

Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) observed

as follows:

"Then it is urged that the evidence

given by the witnesses conforms to the same

uniform pattern and since no specific part

is assigned to all the assailants, that

evidence should not have been accepted.

This criticism again is not well founded.

Where a crowd of assailants who are members

of an unlawful assembly proceeds to commit

an offence of murder in pursuance of the

common object of the unlawful assembly, it

is often not possible for witnesses to

describe accurately the part played by each

one of the assailants. Besides, if a large

crowd of persons armed with weapons assaults

the intended victims, it may not be

necessary that all of them have to take part

in the actual assault. In the present case,

for instance, several weapons were carried

by different members of the unlawful

assembly, but it appears that the guns were

used and that was enough to kill 5 persons.

In such a case, it would be unreasonable to

contend that because the other weapons

carried by the members of the unlawful

assembly were not used, the story in regard

to the said weapons itself should be

rejected. Appreciation of evidence in such

a complex case is no doubt a difficult task;

but criminal courts have to do their best in

dealing with such cases and it is their duty

to sift the evidence carefully and decide

which part of it is true and which is not."

To similar effect is the observation in Lalji v. State

of U.P. (1989 (1) SCC 437). It was observed that:

"Common object of the unlawful

assembly can be gathered from the nature of

the assembly, arms used by them and the

behaviour of the assembly at or before the

scene of occurrence. It is an inference to

be deduced from the facts and circumstances

of each case."

In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC

747) it was observed that it is not necessary for the

prosecution to prove which of the members of the unlawful

assembly did which or what act. Reference was made to

Lalji's case (supra) where it was observed that "while

overt act and active participation may indicate common

intention of the person perpetrating the crime, the mere

presence in the unlawful assembly may fasten vicariously

criminal liability under Section 149".

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The legality of conviction by applying Section 34 IPC

in the absence of such charge was examined in several cases.

In Willie (William) Slaney v. State of Madhya Pradesh (AIR

1956 SC 116) it was held as follows:

"Sections 34, 114 and 149 of the

Indian Penal Code provide for criminal

liability viewed from different angles as

regards actual participants, accessories and

men actuated by a common object or a common

intention; and the charge is a rolled up one

involving the direct liability and the

constructive liability without specifying

who are directly liable and who are sought

to be made constructively liable.

In such a situation, the absence of a

charge under one or other of the various

heads of criminal liability for the offence

cannot be said to be fatal by itself, and

before a conviction for the substantive

offence, without a charge, can be set aside,

prejudice will have to be made out. In most

of the cases of this kind, evidence is

normally given from the outset as to who was

primarily responsible for the act which

brought about the offence and such evidence

is of course relevant".

The above position was re-iterated in Dhanna etc. vs.

State of Madhya Pradesh (AIR 1996 SC 2478).

The Section really means that if two or more persons

intentionally do a common thing jointly, it is just the same

as if each of them had done it individually. It is a well

recognized canon of criminal jurisprudence that the Courts

cannot distinguish between co-conspirators, nor can they

inquire, even if it were possible as to the part taken by

each in the crime. Where parties go with a common purpose to

execute a common object each and every person becomes

responsible for the act of each and every other in execution

and furtherance of their common purpose; as the purpose is

common, so must be the responsibility. All are guilty of the

principal offence, not of abetment only. In combination of

this kind a mortal stroke, though given by one of the party,

is deemed in the eye of law to have been given by every

individual present and abetting. But a party not cognizant

of the intention of his companion to commit murder is not

liable, though he has joined his companion to do an unlawful

act. Leading feature of this Section is the element of

participation in action. The essence of liability under this

Section is the existence of a common intention animating the

offenders and the participation in a criminal act in

furtherance of the common intention. The essence is

simultaneous consensus of the minds of persons participating

in the criminal action to bring about a particular result

(See Ramaswami Ayyanagar and Ors. v. State of Tamil Nadu

(AIR 1976 SC 2027). The participation need not in all cases

be by physical presence. In offences involving physical

violence, normally presence at the scene of offence may be

necessary, but such is not the case in respect of other

offences when the offence consists of diverse acts which may

be done at different times and places. The physical presence

at the scene of offence of the offender sought to be

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rendered liable under this Section is not one of the

conditions of its applicability in every case. Before a man

can be held liable for acts done by another, under the

provisions of this Section, it must be established that (i)

there was common intention in the sense of a pre-arranged

plan between the two, and (ii) the person sought to be so

held liable had participated in some manner in the act

constituting the offence. Unless common intention and

participation are both present, this Section cannot apply.

'Common intention' implies pre-arranged plan and acting

in concert pursuant to the pre-arranged plan. Under this

Section a pre-concert in the sense of a distinct previous

plan is not necessary to be proved. The common intention to

bring about a particular result may well develop on the spot

as between a number of persons, with reference to the facts

of the case and circumstances of the situation. Though

common intention may develop on the spot, it must, however,

be anterior in point of time to the commission of offence

showing a pre-arranged plan and prior concert. (See Krishna

Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In

Amrit Singh and Ors. v. State of Punjab (1972 Crl.L.J. 465

SC) it has been held that common intention pre-supposes

prior concert. Care must be taken not to confuse same or

similar intention with common intention; the partition which

divides their bonds is often very thin, nevertheless the

distinction is real and substantial, and if overlooked will

result in miscarriage of justice. To constitute common

intention, it is necessary that intention of each one of

them be known to the rest of them and shared by them.

Undoubtedly, it is a difficult thing to prove even the

intention of an individual and, therefore, it is all the

more difficult to show the common intention of a group of

persons. But however difficult may be the task, the

prosecution must lead evidence of facts, circumstances and

conduct of the accused from which their common intention can

be safely gathered. In Magsogdan and Ors. v. State of U.P.

(AIR 1988 SC 126) it was observed that prosecution must lead

evidence from which the common intention of the accused can

be safely gathered. In most cases it has to be inferred from

the act, conduct or other relevant circumstances of the case

in hand. The totality of the circumstances must be taken

into consideration in arriving at a conclusion whether the

accused had a common intention to commit offence for which

they can be convicted. The facts and circumstances of cases

vary and each case has to be decided keeping in view of the

facts involved. Whether an act is in furtherance of the

common intention is an incident of fact and not of law. In

Bhaba Nanda Barma and Ors. v. The State of Assam (AIR 1977

SC 2252) it was observed that prosecution must prove facts

to justify an inference that all participants of the acts

had shared a common intention to commit the criminal act

which was finally committed by one or more of the

participants. Mere presence of a person at the time of

commission of an offence by his confederates is not, in

itself sufficient to bring his case within the purview of

Section 34, unless community of designs is proved against

him (See Malkhan and Anr. v. State of Uttar Pradesh (AIR

1975 SC 12). In the Oxford English Dictionary, the word

"furtherance" is defined as 'action of helping forward'.

Adopting this definition, Russel says that "it indicates

some kind of aid or assistance producing an effect in

future" and adds that any act may be regarded as done in

furtherance of the ultimate felony if it is a step

intentionally taken, for the purpose of effecting that

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felony. (Russel on Crime 12th Edn. Vol.I pp.487 and 488).

In Shankarlal Kacharabhai and Ors. v. The State of Gujarat

(AIR 1965 SC 1260) this Court has interpreted the word

"furtherance" as 'advancement or promotion'.

The plea that some of the accused persons did not

commit any overt act would really of no consequence. They

were not mere sightseers as claimed. There is nothing to

show that they had dissuaded the persons from committing the

criminal act or withdrew at any point of time during the

course of the incident constituting by itself or as a step

in furtherance of the ultimate offence. There is nothing

unusual in deceased Gopi running after the deceased Kishun

and other eyewitnesses. In order to ascertain as to what was

the cause of the explosion and to run after the deceased

seeing him towards house of PW-6. The eyewitnesses have

identified the accused persons and have stated about their

presence inside the house of PW-6. There is no discrepancy

so far as the identification is concerned and about the

weapons carried by the identified accused persons. It has

also come in evidence that the targeted victims were the

deceased persons with whom the animosity is admitted. The

objective findings recorded by the IO on spot verification

also are in line with the evidence of eyewitnesses.

So far as the absence of any independent witness is

concerned, the evidence of PW-6 is very relevant. He has

stated that the accused persons were surrounding the village

after the incident. In the village Malti there are 100

houses out of which 5 to 6 houses are of Yadavs, 15 to 16

are of Bhumihars and people of other castes are also there.

Before the present occurrence, Arjun and Saudhi who were

Bhumihars by caste were killed. Yadavs of the village were

accused of the murder and the deceased Kishun and Gopi were

the main accused. Accused Lakhan is the brother of deceased

Saudi Singh and Nandu Singh is the son of Arjun Singh. It

has to be noted further that though the eyewitnesses were

examined at length in the cross-examination nothing material

to belie their credibility or discard their evidence was

brought out.

Looked at from any angle, the impugned judgment suffers

from no infirmity to call for any interference. The appeals

are dismissed.