SHYAM NIRANJAN DUBEY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants, Shyam Niranjan Dubey, his son Mata Charan, and his friend Ramhit were charged and convicted of offences punishable under Section 302 read with Section 34 Indian Penal Code, and sentenced to life imprisonment, whereas Sharda Prasad another friend and associate of Shyam Niranjan Dubey was convicted for an offence punishable under Section 302 simpliciter and sentenced to death. All the four accused persons were also charged and convicted under Section 323/34 Indian Penal Code, and sentenced to six months rigorous imprisonment, the sentences running concurrently. In their appeals before the High Court of Allahabad the convictions of all the three appellants as well as of Sharda Prasad were maintained, but he sentence of Sharda Prasad was converted into one of life imprisonment whereas the sentences of all the three appellants were maintained. This Court granted special leave to the three appellants while rejecting Sharda Prasad's application for special leave to appeal. The only question raised before us is whether on the facts and circumstances of the case found by the Courts of fact, the appellants could be punished for the offence of murder with the aid of Section 34, Indian Penal Code.

(2.) The concurrent findings of the 2 Courts which had to decide questions of fact were:Bhagelu, a Shepherd, had cut some twigs of a babool tree which was claimed by Shyam Niranjan who started collecting the twigs. Bhagelu, who considered himself entitled to cut the babool tree which he claimed as his, objected to Shyam Niranjan's action. There was an exchange of abuses possibly followed by a scuffle between Bhagelu and Shyam Niranjan. Shyam Niranjan's shouts attracted Sharda Prasad who appeared armed with spear accompanied by Mata Charan and Rambit who had sticks. Shyam Niranjan asked the appellants to beat Bhagelu who had started for his house. The appellants surrounded Bhagelu and tried to inflict lathi injuries on him but did not succeed as Bhagelu turned round. He was, however, faced with Sharda Prasad when be turned back. Sharda Prasad killed Bhagelu by thrusting his spear twice into him. The appellants then ran away with Sharda Prasad.

(3.) Mr. Mulla, appearing for the appellants, has contended that the only ground on which the appellants have been made liable for sharing a common intention with Sharda Prasad was that they were held to have surrounded Bhagelu so as to enable Sharda Prasad to kill him and to have tried to use their sticks, but "surrounding", he contends, is a matter of inference and trying unsuccessfully to use sticks does not establish any common intention. We, therefore, examined the evidence of the two alleged eye-witnesses. Sarabjit, P. W. 1, and Sri Kant, P.W. 4,. to find out what was meant by "surrounding" by them. They were held to have seen the start of the quarrel between Shyam Niranjan, who was the Pradhan of the village, and Bhagelu, as a result of which Shyam Niranjan had given a shout which brought Sharda Prasad with a spear and the two appellants. Mata Charan and Ramhit with sticks to act in execution of the orders of Shyam Niranjan. It is apparent from the evidence that Shyam Niranjan was giving the orders. Mata Charan and Ramhit being youngmen had rushed ahead so as to be able to intercept the retreat of Bhagelu towards the East in which direction the house of Bhagelu lay. Shyam Niranjan had approached from behind with Sharda Prasad from the West so that the escape of Bhagelu may be barred. The path on which he was thus caught ran East West. Clearly this was what was meant by "surrounding". The witnesses had used the correct word. The Courts also, in our opinion, were right in indorsing this interpretation of the witnesses on the facts mentioned above. It may be that Ramhit and Mata Charan had only struck their sticks on the ground so as to indicate to Bhagelu that he will be struck if he proceeded further to his house towards the East. It is in evidence that Shyam Niranjan had actually given the order to kill Bhagelu so that the accused acted in concert. Bhagelu had the following injuries: