NANDU RASTOGI @ NANDJI RASTOGI AND ANR. v. STATE OF BIHAR

Citation: [2002] SUPP. 3 S.C.R. 30

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, B.P. SINGH

Judgment text

NANDU RASTOGI @ NANDJI RASTOGI AND ANR. v. STATE 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 suppo_rted by witnesses-No a/legation ofassault against one of the accused and yet he too was convicted-Conviction ofthe accused-Justification of- Held, justified as common intention of the accused to commit murder was proved-Arms Act, 1959-Section 27. 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 murder of a person. Prosecutiol) case was that the three accused alongwith 2 unknown persons came armed with cov1ntry made pistol.

While PWlinformant 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 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 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 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 NANDU 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 in the assault. 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 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 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 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 IPC it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance 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 the shop of the informant had a common intention to commit the murder of the deceased and they acted pursuant to a pre arranged plan. The facts clearly are consistent only with the hypothesis of their acting in furtherance of a common intention. They have, therefore, rightly been convicted with the aid of Section 34 IPC. (38-B, DI Parshuram Singh v.

State of Bihar : JT (2002) I SC 407 and Suresh and Anr. v. State of U. P. , [2001 ( 3 sec 673, distinguished. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1299-1300 of 2001. From the Judgment and Order dated 15. 1. 2001 of the Patna High Court in Crl. A. Nos. 126, 136 and 47 of 1994. P. S. Mishra, Vishnu Sharma, S. Chandrashekhar, Upendra Mishra, Gaurav Agrawal and Prashant Kumar for the Appellants. B. B. Singh and Kumar Rajesh Singh, for the Respondent. The Judgment of the Court was delivered by B. P. SINGH, J. The appellants in these appeals, namely, Nandu Rastogi @Nandji Rastogi and Bal Mukund Rastogi are brothers. They alongwith one Jagdish Chamar and Mohan Singh were put up for trial before the 2nd Additional Sessions Judge, Rohtas at Sasaram, who found the appellants and Jagdish Chamar guilty of the offence under Section 302/34 IPC and under Section 27 of the Arms Act but acquitted Mohan Singh.

They were sentenced to undergo imprisonment for life under Section 302/34 IPC and to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. They preferred three appeals before the High Court but by a common judgment and order, the High Court dismissed the appeals and affirmed their conviction and sentence. Three special leave petitions were preferred before this Court but since Jagdish Chamar did not surrender to his sentence, his special leave petition was dismissed by order dated 3rd December, 2001 while special leave to appeal was granted to the appellants herein. The informant Shyam Mohan Rastogi, PW. 4 is the uncle of the appellants being the cousin of their father. The deceased Shankar Rastogi was the son of the informant PW. 4. It is alleged that in an occurrence which took place at about 7. 00 p. m. on 12. 11. 1985 he was shot dead by appellant Nandu Rastogi. It is the case of the prosecution that the three accused.

alongwith NANDU RASTOGl@NANDJJ RASTOGI r. STATE OF BIHAR [BP. SINGH,J] 33 two unknown persons, came armed with country made pistols and perpetrated the crime. According to the prosecution the background in which this occurrence took place, and which also discloses the motive for the offence, is that the informant PW. 4 owned a house which he sold to one Braj Kishore Rastogi, who in turn sold the said house to appellant Nandji Rastogi. Manjoor Ansari, PW. I was the tenant of a shop in that building, but Nandji Rastogi was pressurismg him to vacate the premises. Shankar, (deceased) son of the informant, took the side of Manjoor Ansa is of their acting in furtherance of a common intention. They have, therefor~. rightly been convicted with the aid of Section 34 IPC. We, therefore, find no merit in these appeals which are dismissed. K. K. T. Appeals dismissed.