TMI Blog2004 (3) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... not challenged the said judgment and conviction. Brief facts necessary for the disposal of these appeals are follows: The deceased S. Mahendara Singh was residing with his mother PW-2 and elder brother PW-1 at Bapunagar within the limits of Sanjeevareddy Nagar Police Station. The appellants and A-1 were also residents of said Bapunagar. The residents of Bapunagar were managing an Association called Basthi Youth Association which in turn was running a Bhajana Mandali. PW-4 was the President of the said Bhajana Mandali and the deceased was the Vice President of said Bhajana Mandali. It is the case of the prosecution that there was a death in the family of A-2, hence, he wanted certain samagri for the funeral which was available in the said Bhajana Mandali. With a view to get the samagri , on 30th of April, 1998 at about 11 p.m., the accused persons came to the house of the deceased and asked him to give the said samagri for taking them to Maheswaram for doing Bhajan at the house of the relative where the death had taken place. It is stated that the deceased refused to give Bhajan samagri for being used outside the locality. Being annoyed by the said refusal by the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the trial court and affirmed the said conviction and sentence. Shri K.V.Viswanathan, learned Advocate and Ms.K.Amreshwari, learned Senior Advocate appearing for the appellants contended that the courts below committed serious error in accepting the interested testimony of PWs.1 to 3 and basing a conviction on the said evidence. It is pointed out to us that the investigating agency itself was not sure that the evidence of these witnesses was truthful or not therefore, it took the precaution of recording their statements before a Magistrate under Section 164 of Cr.P.C. Therefore, apart from the fact that these witnesses were interested witnesses, the fact that their statements were recorded under Section 164 of Cr.P.C. also ought to have been taken as a ground to reject their evidence as unreliable. The learned counsel placed strong reliance on a judgment of this Court in the case of Ram Charan Ors. Vs. State of U.P. {1968 (3) SCR 354} to point out that it is not safe to rely on such evidence. The learned counsel also contended from the evidence of these witnesses that is clear that none of these witnesses had actually witnessed the incident and because of existing riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were residing in the same house being deceased's brother and mother respectively and PW-3 was the cousin of the deceased and was admittedly residing in the immediate neighbourhood and at the time of incident was clearing certain debris near his house. He contended that the evidence of these witnesses so far as the attack is concerned has been reasonably consistent and they had no motive to falsely implicate these accused persons. He submitted that if the evidence of the eye-witnesses are to be believed then motive and other aspects of the prosecution case relegates itself to the background. He also contended that there is absolutely no reason to suspect the evidence of PWs.1 to 3 solely because their statements were recorded under Section 164 Cr.P.C. The learned counsel then submitted the fact that the accused persons came together first time at 11 p.m. to the house of the deceased and went back annoyed and again came back together at 11.45 p.m. and called the accused outside and the appellants herein held the hands of the deceased long enough to facilitate A-1 to stab the deceased on the chest four times, itself indicated that these appellants also shared the intention of A-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention, learned counsel for the appellant relied on 2 judgments of this Court in Ram Charan Ors. Vs. State of U.P. {1968 (3) SCR 354} and Balak Ram etc. Vs. State of U.P. {1975 (3) SCC 219}. A perusal of these judgments shows what this Court has held in these cases is that the evidence of witnesses whose statements are recorded under section 164 must be considered with caution and if there are other circumstances on record which might support the truth of the evidence of such witnesses, it can be acted upon. As a matter of fact, those judgments of this Court specifically held that the mere fact that the statement of witness was recorded under section 164 cannot be a ground to reject their evidence. In the case of Ram Charan (supra), this Court dissented from the view expressed by the Patna High Court in the case of Emperor Vs. Manu Chik (AIR 1938 Patna 290) which held that the statement of a witness whose prior statement was recorded under section 164 Cr.P.C. always raises a suspicion that it has not been voluntary. Therefore, such witness compromises in his evidence before the court because of the threat of perjury. While dissenting from the above view of the Patna High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey voluntarily shared the said intention. It is also contended that apart from the above two factors prosecution has to establish that in furtherance of the said intention these appellants committed certain overt act which was responsible for the murder of the deceased. The further argument is that it is not any and every act during the course of attack on the deceased by these appellants that would indicate that these appellants shared the common intention, and only such overt act may be relevant which indicate that the appellants like A-1 also shared the intention to cause the death of the deceased. In the absence of such material no court can come to the conclusion that these appellants also shared the common intention of A-1 merely on the basis of their presence at the place of attack and their holding hands of the deceased. In support of this contention, the learned counsel placed reliance on the judgment of this Court in Vencil Pushpraj vs. State of Rajasthan (supra) and our attention was specially drawn to the facts as recorded in the said judgment which showed that the appellant therein had pinned down the deceased till the other accused stabbed five times over the chest wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that certain acts as found in those cases did not indicate the sharing of common intention. But we have to bear in mind that the facts appreciated in the above judgments and inference drawn have been so done by the courts not in isolation but on the totality of the circumstances found in those cases. The totality of circumstances could hardly be ever similar in all cases. Therefore, unless and until the facts and circumstances in a cited case is in pari materia in all respects with the facts and circumstances of the case in hand, it will not be proper to treat an earlier case as a precedent to arrive at a definite conclusion. This is clear from some judgments of this Court where this Court has taken a different view from the earlier cases, though basic facts look similar in the latter case. For example, if we notice the judgment relied upon by the learned counsel for the respondent i.e. the case of Hamlet alias Sasi Vs State of Kerala (supra), this Court held that the fact that one accused held the deceased by his waist and toppled him down while the other accused attacked him with iron rods and oars was held to be sufficient to base a conviction with the aid of Section 34 IPC. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Yusuf Momin AIR 1971 SC 855). Since common intention essentially being a state of mind and can only be gathered by inference drawn from facts and circumstances established in a given case, the earlier decisions involving almost similar facts cannot be used as a precedent to determine the conclusions on facts in the case in hand. This view of ours finds support in a judgment of this Court in Pandurang Tukia and Bhillia Vs. State of Hyderabad, { 1955 (1) SCR 1083} wherein while considering the applicability of Section 34 IPC this Court held thus:- But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calling of the deceased indicates. Once the prosecution evidence tendered through PWs.1 to 3 is accepted, then it is clear that when A- 2 and A-3 held the hands of the deceased, they had some intention in disabling the deceased. This inference is possible to be drawn because the appellants in their statement recorded under Section 313 Cr.P.C. did not give any explanation why they held the hands of the deceased which indicates that the appellants had the knowledge that A-1 was to assault the deceased. The fact that appellants continued to hold the deceased all along without making any effort to prevent A-1 from further attacking, in our opinion, leads to an irresistible and an inescapable conclusion that these accused persons also shared the common intention with A-1. In these circumstances, what was the intention of A-1 is clear from the nature of weapon used and the situs of the attack which were all in the area of chest, penetrating deep inside and which caused the death of the deceased. It is very difficult to accept the defence version that the fight either took place suddenly, or these appellants did not know that A-1 was carrying a knife, or that these appellants did not know ..... X X X X Extracts X X X X X X X X Extracts X X X X
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