Rajesh Kumar vs State Of H.P

Rajesh Kumar ..Appellant

Versus

State of H.P. ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

of the Himachal Pradesh High Court holding the appellant and one

Surjit Singh guilty of offence punishable under Section 302 read with

Section 34 of the Indian Penal Code, 1860 (in short the `IPC') and

each sentenced to imprisonment for life and to pay a fine of

Rs.5,000/- with default stipulation. By order dated 19.2.2001, the

Special Leave Petition was dismissed qua Surjit Singh.

2. Prosecution version leading to the trial is as follows:

Both the accused are brothers. They and Ravinder Kumar

(hereinafter referred to as the `deceased') were the residents of

Village Nangal Jarialan, Tehsil Amb District Una. On 17.01.1998, the deceased had gone to Nangal Jarialan market for purchasing some

articles where he met Adesh Kumar (PW-14) and Raghubir Singh (PW-15).

PW-14 told them that he wanted to go to some secluded place away from

the market for excreting. PW-15 and deceased accompanied PW-14 on his

scooter who drove it towards the rivulet. He stopped the scooter at

the road side and went towards the shrubs in the nallah. The deceased

and PW-15 remained standing near the scooter waiting for the arrival

of PW-14 who returned after some time. In the meanwhile, both the

accused happened to pass through the place on a tractor bearing

registration No.PB-07-D-6173. They saw the deceased standing on the

road side. They stopped the tractor and pounced upon the deceased by

wielding a 'Drat' and `Danda'. Surjit Singh hit the deceased on the

head with the 'Drat' and Rajesh Kumar assaulted with 'Danda' and gave

blows on other parts of the body. The deceased started wailing whereas

PWs.14 and 15 were bewildered. PW-14 was able to over power Rajesh

Kumar and in the process the deceased managed to get himself freed

from the clutches of the accused. He ran towards the field in order to

save his life with bleeding injuries. But he could manage to go up to

a distance of few feet, and fell down and became unconscious.

Both the accused fled away from the scene of the occurrence on

the tractor before other persons could reach at the scene of

occurrence. On hearing about the incident Shri Harnam Singh (PW-16),

President, Gram Panchayat, Nangal Jarialan, came at the spot with

numerous other persons. PW-14 informed the police at Police Station,

Gagret about the incident. He also brought Dr. Baldev (PW-20) a

private medical practitioner from the village who examined the

deceased and advised that the deceased be immediately taken to the

hospital. The deceased was thereafter taken to Civil Hospital, Gagret.

2 The mother of the deceased Smt. Jamna Devi (PW-1) after being informed

about the incident, reached at Civil Hospital, Gagret at about mid

night. The deceased succumbed to his injuries on the same day. Dr.

Bhardwaj (PW-11) medically examined the deceased on the same day at

about 8.40 P.M., in Primary Health Centre, Gagret. He noticed that

the deceased was unconscious and was not responding. He found the

following injuries on the person of the deceased;

1. An incised wound on the scalp present on the

occipital and parietal area 5 cms. Long. The margins were

regular and smooth. There was no fresh bleeding oozing out of

the wound. This wound was 2cms. Deep.

2. Bruise mark 2 cm x 2 cm present on the mastoid area of right

pinna.

3. Lacerated wound on left hand between the index finger and

fourth finger. It was not bleeding.

4. Two lacerated injuries on the right leg. One injury was 1 cm

x 1/2 cm with irregular margins. It was irregular margins.

It was present 8 cms below patella of right leg. Second

injury was 1 cm x 2 cm with irregular margins present 6 cms

below the first one.

5. Lacerated wound 2cms. long skin deep present on the left

forearm on the dorsal aspect of the hand.

3 Dr. N.K.Bhardwaj advised shifting of the deceased to District

Hospital, Una for X-ray and further treatment. He had stitched the

wound on the head of the deceased and due to stitching the margins of

the wound had become irregular. He issued medico legal certificate

Ex. PF/1. According to the opinion of Dr. Bhardwaj the injury on the

head of the deceased was sufficient to cause his death in ordinary

course of the nature. Dr. Bhardwaj also opined that the injury on the

head of the deceased could be caused by 'Drat' and other injuries

found on the body of the deceased could have been inflicted by bamboo

stick.

Shri Kailash Chand (PW-22) who at the relevant time was posted as

Station House Officer, Police Station, Gagret recorded the information

received by him from PW-11 Dr. N.K. Bhardwaj in daily diary register,

a copy of which was marked Ext. PQ. He immediately rushed to the

hospital and recorded the statement (Ext. PJ) of PW-14 which was sent

to Police Station, Gagret for registration of the case, on the basis

of which First Information Report No.12/98 came to be registered. The

F.I.R. later on transferred to Police Station, Amb marked (Ext. PT)

because during the investigation the place where the occurrence took

place was found within the jurisdiction of Police Station, Amb. The

post mortem of the dead body of Ravinder Kumar was conducted by Dr.

S.P. Kanwar (PW13), Medical Officer, District Hospital, Una who found

the following injuries on his body;

1. There was a lacerated wound 6 cm x 2 cm x bone deep on the

vault of the skull. It was on the occipito-parietal region

transversely placed. It was situated 6" from the left pinna

and 5 1/2 from the right pinna and 9 1/2" posterior to the

4 root of the nose. Underlying bone of the skull had sustained

depressed fracture of the wound.

2. There was contused lacerated wound 2 cm x 1 cm x 1.5 cm on

anterior aspect of the right leg, 6" above the medial

malleolus.

3. An abrasion 3 cm x 1 cm on the middle of the right leg on

the anterio medial aspect. It was reddish brown in colour.

4. A contused lacerated wound 3 cm x 2 cm x 1 cm on the cleft

between the 4th & 5th fingers of the left hand.

5. There were multiple abrasions on the medial aspect of the

left fore-arms and wrist, which were reddish in colour.

6. There was contused lacerated wound 1cm x 0.5 cm x 0.5 cm. on

the proximal 1/3rd of the right forearm on the medial aspect.

After investigation charge sheet was placed. Since the accused

persons denied their involvement in the offence, trial was held.

Twenty three witnesses were produced to further the prosecution

version. The trial court held that the evidence of the eye witnesses,

more particularly PWs 14 & 15, clearly established that common

intention of the accused persons was to cause death of the accused.

Accordingly conviction was recorded. Before the High Court it was

submitted that the evidence of PWs 14 & 15 do not inspire confidence.

In any event so far as the present appellant is concerned Section 34 5 IPC has no application. The High Court did not find any substance in

the aforesaid stand and dismissed the appeal. Both Surjit Singh and

the present appellant filed special leave petition. Special Leave

petition was dismissed so far as the Surjit Singh is concerned, as

noted above.

3. In support of the appeal Mr. Shiva Pujan Singh learned counsel

for the appellant submitted that the prosecution version even if

accepted in its totality does not make out a case for application of

Section 302 IPC read with Section 34 IPC.

4. Learned counsel for the State on the other hand submitted that

the conduct of the accused before and after the occurrence clearly

shows the existence of common intention for the murder of the

deceased.

5. It is to be noted that according to the prosecution case Surjit

Singh was armed with drat and appellant with danda and Surjit Singh

hit the deceased with the drat. So far as the appellant is concerned

he was carrying a lathi and had assaulted on non-vital parts of the

body. The Doctor had noticed five injuries except the incised wound

on the scalp which are attributable to the assault done by danda on

non vital parts. The Doctor's evidence was to the effect that the

injury No. 1 was the fatal one. Though the aforesaid aspect cannot

always be the determinative of question as to whether Section 34 IPC

has application, yet in the present case we find that PW 14 took away

the lathi from the appellant and threw it out. Thereafter the only

role played according to the prosecution witnesses is that he was

running. He did not pick up the lathi which had been thrown up by PW

6 14 and the prosecution witnesses have accepted that he did nothing

thereafter except running. In that view of the matter there is

substance in the plea of learned counsel for the appellant that

Section 34 has no application so far as Section 302 is concerned.

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 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

7 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 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

8 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].

11. There is no proposition in law that relatives are to be treated

as untruthful witnesses. On the contrary, reason has to be shown when

a plea of partiality is raised to show that the witnesses had reason

to shield actual culprit and falsely implicate the accused. No

evidence has been led in this regard.

12. The appellant has to be convicted on the basis of injuries

inflicted by him. According to us the appropriate conviction would be

under Section 326 IPC and custodial sentence of three years would meet

the ends of justice.

13. The appellant who has been released on bail shall surrender to

custody forthwith to serve remainder of sentence, if any.

14. The appeal is allowed to the aforesaid extent.

.........

.......................J. (Dr. ARIJIT

PASAYAT)

9 ..........................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi October 3, 2008

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