Chaman & Anr vs State Of Uttaranchal

Chaman & Anr. ....Appellants

Versus

State of Uttaranchal ....Respondent

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division Bench of

the Hon'ble High Court of Uttaranchal at Nainital upholding the conviction

of four appellants who had filed Criminal Appeal no.1275 of 2001. One of

the appellants Khushi Ram died during the pendency of the appeal. By the

impugned judgment, the High Court upheld the conviction so far as other appellants Chaman, Vinod Kumar and Naresh are concerned. The first two

are appellants in the present appeal. No appeal has been preferred by

accused Naresh. Each of the accused was convicted for offence punishable

under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in

short the `IPC') and sentenced to imprisonment for life. Appellant Vinod

was additionally convicted for offence punishable under Section 323 IPC

and sentenced to imprisonment for six months.

2. Prosecution version in a nutshell is as follows:

On 09.07.1985, at about 5:00 P.M., Jaswant Singh (hereinafter

referred to as the `deceased') was returning to his home, when he met Rani,

daughter of Onkar Das and they started talking to each other. Appellant

Chaman, brother of Rani, came from his house hurling abuses at Jaswant

Singh, saying "TU BAHUT BADA SAAND BANTA HAI, RUK TUJHE

MAJAA CHAKHATAA HUN" (You think yourself to be a big bull, wait I

will teach you a lesson). Thereafter, on the same day, at about 1:30 A.M. in

the intervening night of 9th/10th of July, 1985, when Jaswant-deceased, his

father Chamela Ram (P.W. 2), brother Data Ram (P.W. 1), were sleeping in

the verandah of their house, they woke up on hearing the barking of their

2 dog and flashed their torches and saw that appellants Naresh, (armed with a

gun), Vinod, (armed with a KHUKRI-a sharp edged weapon), Chaman,

(armed with SAINTA-a sharp edged weapon) and Khushi Ram, (armed with

a country made pistol), entered their house. Appellant Chaman, asked

Jaswant to stand up. On which, Jaswant along with Data Ram, got up from

their cots. Meanwhile, Chamela Ram (P.W.2) raised an alarm "BACHAO!

BACHAO!! (Save! Save!!). Naresh pointed the gun at him. Chamela Ram

caught hold the barrel of the gun to save himself. On this, appellant Vinod

gave him blows with the butt of Khukri. Meanwhile, appellant Chaman

struck a blow with SAINTA (a sharp edged weapon) on the person of

Jaswant, who ran to save his life. However, Jaswant could not go far and

fell down near the house of Nain Singh. By then, witnesses Bhuru (P.W.5),

Ramu, Isam (P.W.6), Nakli (P.W.7) and Nain Singh had reached there. They

also flashed their torches and saw that appellant Vinod, struck a blow with

the Khukri on injured Jaswant. Thereafter, all the four appellants ran away

from the place of occurrence. Jaswant Singh, succumbed to the injuries on

the spot, near the house of Nain Singh. A written report (Ext. A-1) of the

incident was got scribed by Raj Kumar (P.W. 4) by Chamela Ram (P.W. 2),

which was lodged against all the four accused persons with the police

station Doiwala on 10.07.1985, at about 5:30 A.M. The distance between

3 the place of occurrence (Chandi Plantation) and the police station is 15 kms.

On the basis of said report (Ext. A-1), its check report (Ext. A-18) was

prepared at the police station and necessary entry was made in the general

diary, a copy of which is Ext. A-17. Crime No.117 of 1985 was registered

against all the four accused persons, for the offence allegedly committed by

them under Section 302 of I.P.C. P. W. 8 H.C. Panda, Sub Inspector, after

aforesaid report was lodged with the police station, proceeded to the place

of occurrence on 10.07.1985 and took the dead body of Jaswant in his

possession and prepared the inquest report (Ext. A-4). He also prepared site

plan (Ext. A-5), filled police form No.13 (Ext. A-6), prepared letter (Ext. A-

7) addressed to Chief Medical Officer, requesting for post mortem

examination of the dead body. H.C. Pandey, Sub-Inspector (P.W.8) also

took blood stained `BANIYAN' (undershirt) Ext.8 in his possession and

prepared memo (Ext. A-9). He further took into his possession simple soil

(Ext. 12) and blood stained- soil (Ext. 13) and prepared memo (Ext. A-10).

Autopsy was conducted by Dr. A.S. Khanuja (P.W. 11) on the very day i.e.

on 10.07.1985 at 4:00 P.M, on the dead body of the deceased, prepared

post-mortem examination report (Ext. A-26) and opined that the death has

been caused due to shock and haemorrhage, resulting from injury over the

lung. Investigating Officer also recovered the torches, in the light of which

4 the crime was witnessed by the witnesses. After recording the statements of

the witnesses and on completion of the investigation, the Investigating

Officer submitted charge sheet (Ext. A25) before the Magistrate concerned.

Since accused persons pleaded innocence, trial was held.

3. Relying on the evidence of eye witnesses PWs 1, 2, 5 and 7 the Trial

Court found the accused persons guilty and sentenced them as aforesaid.

4. In appeal, the main ground was that the offence has not been made

out in respect of the accused persons. It was further stated that one of the

accused persons was a juvenile. It was also submitted that Section 34 has no

application.

5. Reliance is placed on a certificate dated 20.8.2008 to contend that one

of the accused persons was a juvenile. The same has not been brought on

record earlier. In any event, the certificate came into the existence much

after the completion of the trial and disposal of the appeal by the High

Court. We, therefore, are not inclined to take note of the certificate which is

pressed into service.

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6. Section 34 has been enacted on the principle of joint liability in the

doing of a criminal act. The Section is only a rule of evidence and does not

create a substantive offence. The distinctive feature of the Section is the

element of participation in action. The liability of one person for an offence

committed by another in the course of criminal act perpetrated by several

persons arises under Section 34 if such criminal act is done in furtherance of

a common intention of the persons who join in committing the crime. Direct

proof of common intention is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the

proved facts of the case and the proved circumstances. In order to bring

home the charge of common intention, the prosecution has to establish by

evidence, whether direct or circumstantial, that there was plan or meeting of

mind of all the accused persons to commit the offence for which they are

charged with the aid of Section 34, be it pre-arranged or on the spur of

moment; but it must necessarily be before the commission of the crime. The

true contents of the Section are that if two or more persons intentionally do

an act jointly, the position in law is just the same as if each of them has done

it individually by himself. As observed in Ashok Kumar v. State of Punjab

(AIR 1977 SC 109), the existence of a common intention amongst the

6 participants in a crime is the essential element for application of this

Section. It is not necessary that the acts of the several persons charged with

commission of an offence jointly must be the same or identically similar.

The acts may be different in character, but must have been actuated by one

and the same common intention in order to attract the provision.

7. As it originally stood, Section 34 was in the following terms:

"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."

8. In 1870, it was amended by the insertion of the words "in furtherance

of the common intention of all" after the word "persons" and before the

word "each", so as to make the object of Section 34 clear. This position

was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).

9. The Section does not say "the common intention of all", nor does it

say "and intention common to all". Under the provisions of Section 34 the

essence of the liability is to be found in the existence of a common intention

animating the accused leading to the doing of a criminal act in furtherance

7 of such intention. As a result of the application of principles enunciated in

Section 34, when an accused is convicted under Section 302 read with

Section 34, in law it means that the accused is liable for the act which

caused death of the deceased in the same manner as if it was done by him

alone. The provision is intended to meet a case in which it may be difficult

to distinguish between acts of individual members of a party who act in

furtherance of the common intention of all or to prove exactly what part was

taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v.

State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even

if no injury has been caused by the particular accused himself. For applying

Section 34 it is not necessary to show some overt act on the part of the

accused.

10. The above position was highlighted recently in Anil Sharma and

Others v. State of Jharkhand [2004 (5) SCC 679], in Harbans Kaur v.

State of Haryana [2005(9) SCC 195] and Amit Singh Bhikamsingh Thakur

v. State of Maharashtra [2007(2) SCC 310].

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11. When the factual scenario is considered in the background of legal

position, there is no merit in this appeal. Looked from any angle the appeal

is without merit, deserves dismissal, which we direct.

.................................................J. (Dr. ARIJIT PASAYAT)

...............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, December 1, 2008

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