Criminal Appeal (D.B.) No. 305 of 2003 ----------- Against the judgment of conviction and order of sentence dated 24.02.2003 passed by Additional Sessions Judge, Fast Track Court-Vth, Giridih in Sessions Trial No. 43 of 2001. ----------- 1. Surendra Nath Tiwary, son of Late Raghu Raj Tiwary, 2. Pawan Tiwary, son of Surendra Nath Tiwary Both are residents of Barmasiya, P. S.- Town Giridih, Distt.-Giridih ... … … Appellants --Versus-- The State of Jharkhand …. …. …Respondent For the Appellants : Mr. B.M.Tripathi, Sr. Advocate, M/s. Nutan Sharma & Naveen Kumar Jaiswal, Advocates For the State : Mr. T.N.Verma, A.P.P. PRESENT The Hon’ble Mr. Justice R.R. Prasad The Hon’ble Mr. Justice R.N.Verma C.A.V. ON:
04. 02/2015 Delivered on 26/02/2015 R.N. Verma, J.
The three appellants namely Surendra Nath Tiwary, Arun Tiwary and Pawan Tiwary were put on trial to face charges under Section 302 read with Section 34, 307 read with Section 34 of the Indian Penal Code on the allegation of committing murder of one Badri Narayan Prasad in furtherance of common intention and also for attempting to commit murder of Rinku Kumar Sinha and in alternative all the three appellants were also charged under Section 302 of the Indian Penal Code. The appellant Pawan Tiwari was further separately charged under Section 27 of the Arms Act for having in possession of a revolver and using the same.
2. The Additional Sessions Judge, Fast Track Court- Vth, Giridih by judgment of conviction and order of sentence dated 24.02.2003 passed in Sessions Trial No. 43 of 2001 held the appellant Pawan Tiwary guilty of offence under Section 302 of Indian Penal Code and also under Section 27 of Arms Act and sentenced him to undergo imprisonment for life and rigorous imprisonment for five years respectively. Appellant Pawan Tiwari was further held guilty of attempting to murder Rinku Kumar Sinha punishable under 2 Section 307 read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 (ten) years. The Court further held the appellants Arun Tiwary and Surendra Nath Tiwary guilty of offence under Section 302 read with Section 34 of Indian Penal Code and sentenced them to undergo imprisonment for life and further held the two appellants also guilty of attempting to commit murder of Rinku Kumar Sinha punishable under Section 307 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years and all the sentences were ordered to run concurrently.
3. The prosecution story, according to the fardbeyan given by Urmila Devi (P.W.10) recorded by S.I. of Town Police Station, Giridih on 07.07.2000 at 11.00 p.m., is that at about 10.00 P.M., she was sitting in her house when she heard the screaming voice of her son Rinku (P.W.8) and came out of her house along with her husband Badri Narayan Prasad (the deceased) on the road near Kali Manda, she saw that Pawan Tiwary, Arun Tiwary and Surendra Nath Tiwary, who happened to be her neighbour, were abusing her son Rinku Kumar. Thereafter, she along with her husband rescued her son and took him with them and moved towards their house. When they reached near the house of Ram Chandra Pandit which is almost at a distance of 10 meters from her house, one of the appellant Pawan Tiwary came there and restrained her husband and started abusing him and when protested not to abuse, Arun Tiwary and Surendra Nath Tiwary assaulted her husband with fists and slaps and directed Pawan Tiwary to kill all of them. In the meanwhile, Pawan Tiwary fired from his revolver on her husband Badri Narayan Prasad, who after receiving firearm injury fell down in pool of blood. When her son Rinku tried to rescue his father, Pawan Tiwary fired from his revolver upon her son Rinku, which hit on his waist and after receiving the fire arm injury, her son Rinku Kumar also fell down. The appellant Pawan Tiwary again fired one blank shot from his revolver. After hearing the sound of fire and cry of the informant, her two other sons Ravi Shankar Kumar and Jai Shankar Kumar along 3 with Mohalla people Anjani Kumar Sinha and Anand Kumar Verma assembled there and seeing them, the appellants fled away. The Mohalla people took her husband to Vishwanath Nursing Home but her husband was declared dead by the attending doctor. Her son Rinku Kumar was shifted to Sadar hospital from where he was referred to Dhanbad. The informant claimed that the three appellants along with their two or three associates having common intention killed her husband and caused serious injury to her son Rinku Kumar.
4. On the basis of the said fardbeyan (Ext.-4), Giridih (Town) P.S. Case no. 149 of 2000 was instituted on 08.07.2000 at 05:50 a.m. under Sections 302/307/34 of Indian Penal Code and the police after investigation submitted the charge sheet against the three appellants and ultimately the case was committed to the Court of Sessions for trial and disposal where the three appellants were charged as stated above. 5 The prosecution in order to bring home the charge altogether examined twelve witnesses. Out of which P.W.2- Pankaj Kumar Sinha, P.W.3- Jai Shankar Kumar, P.W.5- Ravi Shankar Kumar, P.W. 8 Rinku Kumar Sinha @ Amar Shankar Sinha, the injured and P.W. 10- Urmial Devi, the informant, claimed to be eye witnesses to the occurrence. P.W.1- Dr. Shashi Bhushan Choudhary is a Medical Officer, who had conducted autopsy on the dead body of Badri Narayan Prasad, P.W. 4 Dr. Kamleshwar Prasad another doctor of Giridih Sadar Hospital acted as Observer during the postmortem of Badri Nath Prasad. The signature of this doctor on the P.M. report has been marked as Ext.-1/1. P.W.7- the doctor of Central Hospital, Dhanbad had examined injured Rinku Sinha, P.W.9- Dr. Imran Shikoh was the Medical Officer in Sadar Hospital, Giridih and this witness had also examined the injured Rinku Sinha whereafter the injured was referred to Dhanbad for better treatment. P.W.6- Dr. V.K. Maheshwari a Radiologist of Central Hospital, Dhanbad had taken X- ray and had submitted the X-ray report, P.W.11- Md. Luquman is a formal witness of inquest report and P.W. 12 Ram Suresh Singh is the 4 Investigating Officer of the case, who during the course of investigation, prepared the inquest report and submitted charge sheet against the appellants.
6. It appears from the record that defence had also examined four witnesses in support of the plea of alibi taken by one of the appellant Surendra Nath Tiwary. one of the appellant Pawan Tiwary had also taken the plea of alibi and claimed to be falsely implicated in this case because he had solemnized an inter caste marriage with a Kayastha girl but the court below found that the evidence brought on record by the accused were not sufficient to establish beyond doubt the plea of alibi taken by the accused. Before this Court, Mr. B.M. Tripathi, learned senior counsel appearing for appellants preferred not to put any submission on the plea of alibi. As usual under Section 313 of Cr.P.C., all the three appellants claimed to be falsely implicated.
7. The trial court on appreciation of the evidences and the materials on record found the evidence of P.Ws. 3, 5, 8 and 10 to be reliable and their evidences being corroborated by the evidence of the doctor and the Investigating Officer, convicted and sentenced the appellants as above. Hence the appeal by all three appellants.
8. It appears from the record that the appellant no.2 Arun Tiwary died during pendency of the appeal and by order dated 6th August, 2012, the appeal to the extent of the deceased appellant Arun Tiwary had abated and the appeal to that extent was dismissed as not pressed.
9. Mr. Tripathi, learned senior counsel appearing for the appellants seriously contended that there is material contradiction in the fardbeyan and deposition of the informant and the court below failed to take into consideration that the presence of P.Ws. 2, 3 and 5 near the place of occurrence have not been shown in the fardbeyan but intentionally to fill up the lacuna in the prosecution story, those three witnesses have been shown to be the eye-witnesses. It was also submitted that the prosecution has failed to bring out on record any motive on the part of the appellants in commission of the alleged 5 offence. It was also seriously contended that non-examination of one of the important witness Mintu Pal creates a cloud of suspicion over the finding of having common intention against Surendra Nath Tiwary. Learned counsel further assailing the finding of the court below of participation of Surendra Nath Tiwary in the alleged offence further submitted that only when Pawan Tiwary assaulted Mintu Pal with the butt of the revolver, the appellant Surendra Nath Tiwary came to know that Pawan Tiwary was having a fire arm and in such circumstance, conviction of Surnedra Nath Tiwary with the help of Section 34 of Indian Penal Code when no overt act has been alleged, is bad in law. Lastly, it was submitted that all the witnesses, who are claiming to be the eye-witnesses of the occurrence, are closely related and interested witnesses and no reliance can be placed on their testimony and there evidences are fit to be discarded.
10. Contrary to the above submissions, the learned counsel for the State submits that the evidence of the witnesses cannot be discarded merely on the ground that they happen to be the relatives of the deceased or the informant. It was also submitted that the common intention may even develop in course of the fight and the essence of Section 34 of I.P.C. is simultaneous consensus of the minds of the persons participating in the criminal action to bring about a particular result and in the present case, Pawan Tiwary was exhorted by his father Surendra Nath Tiwary and another appellant (deceased Arun Tiwary) to kill all of them.
11. The evidence of all the prosecution witnesses have been set out in detail by the trial court and we do not consider it expedient to incorporate the same, except those part of the evidences, which have direct bearing on the case.
12. While reiterating her earlier version given in fardbeyan, informant P.W. 10 Urmila Devi, who is the widow of the deceased Badri Narayan Prasad, by giving description from the stage that after hearing the cry of her son Rinku Kumar, she along with her husband since deceased and two sons Ravi Shankar and Jai Shankar came near Kali Manda and saw that the accused-appellant Pawan Tiwary, 6 Surendra Nath Tiwary and Arun Tiwary were abusing and assaulting her son Rinku. She alongwith her husband took Rinku with them and proceeded towards their house and when they reached near the house of Ram Chandra Pandit, all the three appellants came there and started abusing her husband and son Rinku and also assaulted them. In the meantime, appellant Surendra Nath Tiwary and Arun Tiwary exhorted Pawan Tiwary to kill all of them. Surendra Tiwary and Arun Tiwary caught hands of her husband and again directed Pawan to shot him dead, thereafter, Pawan Tiwary shot fire from the revolver which he was keeping in his hand almost from a distance of 3-4 feet, which hit on the left side of the chest of her husband and her husband fell down in a pool of blood and when her son Rinku tried to lift his father, Pawan Tiwary fired at him also causing injury near his waist and his son also fell down. Thereafter, Pawan Tiwary shot a blank fire and all the appellants fled away. This witness was subjected to extensive cross- examination but nothing much less any incriminating material could be elicited from her cross-examination so as to discredit her veracity and we do not find any serious discrepancy or contradiction or improvement in her evidence except that in her fardbeyan, she had stated that after hearing the sound of fire and alarm raised by the informant and her son, her two other sons Ravi Shankar and Jai Shankar and Mohalla people came there. During cross-examination, this witness had clearly stated that Pawan Tiwary had fired at Rinku Kumar from a distance of almost 2-3 feet.
13. The evidence of P.W. 10 stands corroborated from the testimony of P.W. 8 Rinku Kumar (injured witness), who testified that he along with Pankaj Kumar Sinha were sitting and gossiping at Kali Manda and at that time, Mintu Pal also came there and in the meantime, the appellants also came there and without any reason abused him and jostled him upon which Mintu Pal intervened to save him and caught one of the hand of Pawan Tiwary whereupon Pawan Tiwary took out revolver from his waist and assaulted Mintu 7 Pal with the butt of the revolver. The scuffle between him and the appellants continued for 10-15 minutes and hearing the noise, his mother, father and two brothers Jai Shankar Kumar (P.W.
3) and Ravi Shankar Kumar (P.W.5) came there then he along with his parents and brothers proceeded to his house but all the three appellants came near his house and surrounded them. The witness has further stated that Arun Tiwary and Surendra Nath Tiwary caught hold hands of his father and directed Pawan Tiwary to kill all of them. Upon hearing the said direction, Pawan Tiwary took out his revolver and shot at the chest of his father and his father after receiving firearm injury fell down and when he tried to lift his father, Pawan Tiwary also shot at him causing injury on the right side of his waist. The witness has further stated that Mohalla people like Anand Kumar Verma @ Poonam Babu, Anjani Kumar Sinha assembled there and took his father to Vishwanath Nursing Home where his father was declared dead. The witness has further confirmed that he was shifted to Sadar Hospital, Giridih but the doctor referred his case to Dhanbad whereafter, he was treated at Dhanbad.
14. P.W. 2- Pankaj Kumar Sinha while confirming the time and the place where he alongwith Rinku Sinha was sitting on the date of occurrence further confirmed that the appellants came there and started abusing Rinku Sinha and also confirmed that after hearing the noise, the mother, father and two brothers of Rinku Sinha came there and took Rinku with them to their house and when they reached near the house of Ram Chandra Pandit, the appellants intercepted them and abused. The witness has further stated that Surendra Nath Tiwary directed Pawan Tiwary to shot him dead whereupon Pawan Tiwary took out revolver from his waist and fired upon Badri Narayan Prasad on his chest and when Rinku tried to lift his father, Pawan Tiwary fired on Rinku from his revolver, which hit on his back but during cross-examination, the witness has stated that when the mother, father and brothers of Rinku took him back towards his house, he remained near Kali Manda and the moment he heard the sound of fire, rushed to that place and when he reached 8 near the place of occurrence, he found all the three appellants fleeing away.
15. The I.O. of the case P.W.12 has stated in his evidence that during investigation, he had inspected the place of occurrence, which is almost 10 meters away towards south of the house of the informant and had collected blood smeared earth from the place of occurrence. Though this witness has nowhere stated about the distance of Kali Manda from the house of the informant but P.W. 3 in paragraph 3 of his deposition had stated that the Kali Manda is situated at a distance of about 200 steps from the house of the informant. P.W. 8 has also confirmed that Kali Manda is situated at a distance of almost 100/125 feet from his house where he was sitting with Pankaj.
16. Learned counsel for the appellants at this juncture had given stress on the contradiction and improvements made in the testimony of P.Ws. 3 and 5 and further contended that the evidence of P.W.10 was not in consonance with her earlier statement recorded in the fardbeyan.
17. The two sons of the informant P.W.3 and P.W. 5, as per the statement of the informant in fardbeyan, came near the place of occurrence after hearing the noise of firing but in their evidence, the two witnesses have presented themselves as an eye-witnesses of the occurrence from the beginning by saying that after hearing the cry of their brother Rinku, they along with their mother and father came near the Kali Manda and found the three accused persons abusing Rinku whereafter their father and mother took his brother Rinku from there and proceeded for their house but near the house of Ram Chandra Pandit, the appellants surrounded them and assaulted his father and that Surendra Nath Tiwary and Arun Tiwary exhorted Pawan Tiwary to kill Badri Narayan Prasad whereafter, Pawan Tiwary fired from his revolver. Their father after receiving the firearm injury fell down and when Rinku was trying to lift his father, Pawan Tiwary shot him also near his waist. From perusal of the evidence of the above witnesses, it appears that the evidence of P.W. 10 has been corroborated by P.W. 8 and by P.Ws. 3 and 5 also 9 except the above contradiction and besides that nothing seems to have been brought on record during cross-examination to discredit the testimony of P.W. 10 rather her testimony gets corroboration from her earlier version, as being narrated in her fardbeyan (Ext.-4). The effect of the contradiction is not so to demolish the entire prosecution story. It is well known that first information report is not an encyclopedia of the entire case. It need not contain all the details. We find that the fardbeyan of the informant was recorded at about 11.00 P.M. immediately after the occurrence and name of all the three appellants were given in the fardbeyan. So far as contention of learned counsel for the appellant that the prosecution has failed to give any motive, we do not find any substance in the submission. Human behaviour has always been a mystery to human being and it is by now a settled principle of law that in a case where the Court has direct evidence available to it in respect of the charges, motive loses its importance.
18. Now, let us examine the testimony of the doctors, who conducted autopsy of the dead body of Badri Narayan Prasad and the testimony of the doctor, who had examined the injured Rinku Sinha. As already stated above, Dr. Shashi Bhushan Choudhary, who had conducted the postmortem examination, was examined as P.W.1 and another doctor Kamleshwar Prasad, who was deputed as Observer to watch the autopsy, was examined as P.W.4. P.W.1 after postmortem examination on the dead body of the deceased found the following external injuries, which were marked as Ext.-1 and the signature of P.W. 4 was marked as Ext.1/1. (i) One oval lacerated wound 1/2" x 1/4" x cavity deep with inverted margin over left lateral border of sternum over the chest left nipple. Margin of the wound was black (entry wound). (ii) Lacerated wound over right side back below one scapular angle mentioning 1” x 1/2" with everted margin and cavity deep. On proving the injury no. (i) and (ii) were found on the same line (wound of exit). 10 In the opinion of the two doctors, the above two injuries were caused by fire arm at a close distance of three feet. The above two injuries and close distance fully corroborates the manner of occurrence as narrated by P.Ws. 8 and 10. P.W. 4 Dr. Kamleshwar Prasad, who acted as Observer for the postmortem of Badri Narayan Prasad, has confirmed the same injury as observed by P.W.1 and further stated during cross-examination that he found two injuries over the body of the deceased caused by fire arm but both the injuries were possible by one bullet as they were in the same line.
19. P.W. 9 Dr. Imran Shikoh had examined the injured Rinku Sinha at about 1.00 P.M. on 07.07.2000 in Sadar Hospital, Giridih and had found the following injuries (Ext.-3):- Lacerated wound 1”x1/2”x skin and muscle deep on the right side of chest with charring of skin due to fire arms. The doctor referred the matter for final opinion to P.M.C.H. Dhanbad. It appears that this injured Rinku (P.W.8) was examined by Dr. S.N. Mehrotra (P.W.7) of Central Hospital, Dhanbad and this witness (P.W.7) had done C.T. Scan of the injured Rinku on 13.07.2000, which was marked as Ext.-2 and found the following injuries on the body of P.W.
8. “Miscellaneous. A metallic foreign body with CT density +2169 HV (approx.) is seen near right Cms. of diaphagm, posterior to posterior segment of right lobe of liver. It is about 32.8 mm from skin surface (posterior aspect as seen in picture no. 4). The length of the foreign body is 34.9 mm. approx.( or 31.1 mm). Liver, spleen, gall bladder, kidneys, pancreas, urinary bladder and other abdominal organs do not show any evidence of injury. Fractured lateral aspect of 9th rt. Rib (approx. level) is seen. Suggested clinical correlation.”
20. P.W. 6 is Dr. V.K.Maheshwari, a Radiologist in Central Hospital, Dhanbad and this witness has only come forward to say 11 that he had prepared the x-ray report and on the basis of his x-ray film of chest AP and P.A view, x-ray of abdomen, one Dr. S.Mukherjee had prepared the injury report, which was marked as Ext.-2 and the doctor had found gunshot injury over right lower back side 1/2”x1/2” penetrating wound and abrasion over right elbow. P.W.6 on the basis of X-ray film had prepared his report showing following :- “A metallic F.B. seen in upper part of abdomen (R) side. No gas under diaphragm.” The above injury report and autopsy report of the deceased fully corroborates the ocular evidence of P.W. 8 and P.W.
10. 21. As regards the contention of the learned counsel for the appellants that no specific overt act has been alleged against the appellant Surendra Nath Tiari, the conviction of this appellant with the aid of Section 34 of Indian Penal Code is bad in law and this appellant for the first time came to know of the fact that Pawan Tiwary was keeping a fire arm when Pawan Tiwary had assaulted Mintu Pal.
22. It is by now well settled that there is no uniform inflexible rule for applying the principle of common intention rather the inference must be drawn from the totality of the facts and circumstances of each case. It is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime and also from prior and subsequent attendant circumstances. It is not the case where, there could not be a prior arrangement. Had there been no prior arrangement, the three appellants could not have reached the place of occurrence together and there is consistent evidence of P.Ws. 3, 5, 8 and 10 that all the three appellants were abusing and assaulting Rinku Kumar Sinha and when the father and mother of Rinku Kumar Sinha took him from there and proceeded towards their house, all the three appellants came and surrounded them whereafter Surendra Nath Tiwary and Arun Tiwary exhorted Pawan Tiwary to kill all of them. 12 If there was no common intention, the three appellants would not have acted conjointly in perpetrating the crime. The prior concert on the part of the appellants may be determined having regard to the subsequent conduct of the accused persons. In a case Suresh and another Vs. State of U.P. [ 2001(2) East Cr.C. 50 (S.C.)], the Hon’ble Supreme Court has held : “Thus, to attract Section 34, IPC, two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the common sense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gain saying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such a preconcert of preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. Similarly in case of Amrik Singh Vs. State of Punjab reported in (1972) 4 S.C.C. 42, the Supreme Court has clearly laid down that the common intention may develop in course of the fight but there must be a clear and unimpeachable evidence to justify that inference. In another judgment Surendra Chauhan Vs. State of M.P. [(2000) 4 S.C.C. 110], the Hon’ble Supreme Court has held : “Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, 13 the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.”
23. Applying the legal principles as discussed above, we have no hesitation in holding that common intention on the part of the appellants in committing the crime stands established. Even if the said Mantu Pal has not been examined by the prosecution and the investigation was not full proof but in our view, the defective investigation even would not lead to total rejection of the prosecution case when there are consistent evidence on the manner of occurrence. The defence never controverted or raised question on the place of occurrence. The non-examination of Mantu Pal is not a fact to cast doubt on the prosecution version. He was not an eye witness and only P.W. 2 in his testimony has said about Manut Pal that when the appellants were abusing and assaulting Rinku Kumar, Mantu Pal tried to save Rinku whereupon Pawan Tiwary assaulted Mintu Pal 14 with the butt of his revolver. His non-examination, in our opinion, is of no consequence.
24. From critical analysis of the entire prosecution evidence, there is, in our opinion, no manner of doubt that the two witnesses P.Ws. 8 and 10 referred to earlier have clearly testified about the sequence of events leading to the death of Badri Narayan Prasad. Their evidences are consistent and found reliable by the court below. There is no any infirmity in the depositions, which have stood the test of lengthy cross-examination by defence. The medical evidences also corroborate the prosecution version of fire arm injury upon the deceased and the injured and further confirms that both the shots were fired from close range at a distance of approximately three feet. There is no dispute about the place of occurrence and even the time of occurrence being 10.00 P.M. None of them either P.W. 3 or P.W. 5 could be said to be a chance witness and on mere reading of the evidence, we find that they were natural witnesses, who had seen the occurrence, heard the sound of fire arm and saw the accused- appellants fleeing away from the place of occurrence. The plea of alibi taken by the defence was negatived by the trial court and since the said question has not been raised before this Court, there is no need to examine the defence witnesses or the documentary evidences, which were testified on the plea of alibi. Having thus independently considered the facts and circumstances in their totality and taking holistic view of the facts of this case, we are of the opinion that the prosecution has been able to establish that Surendra Nath Tiwary and Arun Tiwary shared a common intention with the accused Pawan Tiwari and, therefore, by virtue of Section 34 of I.P.C., they are liable for the same offence. All the appellants attacked the deceased and caused injuries in furtherance of common intention.
25. Hence on the basis of the evidence of the witnesses, we are constrained to hold that the finding recorded by the trail Court convicting the appellants needs no interference and the prosecution has succeeded in bringing home the offences, the appellants were 15 charged with. Nothing substantial has been shown to persuade us to interfere with the conviction of the appellants.
26. Accordingly, the appeal is dismissed and the impugned judgment of conviction and order of sentence passed against the two appellants are maintained. From the record, it appears that one of the appellant Surendra Nath Tiwary is on bail and hence his bail bonds is, hereby, cancelled and he is directed to surrender in the court concerned. The trial court is directed to take all coercive steps for his arrest, if he fails to surrender in court, so that he may also serve the sentences along with appellant no. 2 Pawan Tiwary, awarded by the trial court. (Ravi Nath Verma, J.) R.R.Prasad, J.
(R.R.Prasad, J.) Jharkhand High Court, Ranchi Dated the 26th February, 2015 NAFR/Ritesh