The State Of Rajasthan vs Gurbachan Singh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2201 OF 2011

THE STATE OF RAJASTHAN ..... APPELLANT

VERSUS

GURBACHAN SINGH & OTHERS ..... RESPONDENTS

J U D G M E N T

SANJIV KHANNA, J.

By the order dated 01.05.2009, notice in the special

leave petition was confined to the first respondent -

Gurbachan Singh. The special leave petition against other

respondents was dismissed. Our attention is drawn to the

order dated 17.12.2008, whereby Criminal Miscellaneous

Petition No. 19754/2008 preferred against the acquittal of

Manjeet Kaur, stands dismissed. The case and evidence relied

by the prosecution against Manjeet Kaur and Jangir Kaur is

identical. We are of the opinion and reiterate that the

prosecution has not been able to establish its case against

Jangir Kaur. Challenge to the acquittal of Jangir Kaur is

dismissed.

2. The prosecution’s case as per the charge sheet is that Teja

Singh along with his brother Harbhajan Singh (PW-1) on one Signature Not Verified Digitally signed by BABITA PANDEY Date: 2022.12.14 18:09:21 IST side, and Gurbachan Singh along with the co-convicts and Reason:

brothers Darshan Singh, Balvir Singh, and Manjeet Singh, on

the other side were embroiled in a dispute regarding partition 2

of land. On 06.11.2000 at about 5 P.M., Gurbachan Singh and

Balvir Singh were ploughing the plot which belonged to water

works department. Teja Singh had objected to this, post which,

a village meeting was held, in which both Gurbachan Singh and

Balvir Singh had left for their home in anger. At about 7:30

P.M. on the same day, Harbhajan Singh (PW-1), and Jasveer Kaur

(PW-2) were going to the Gurudwara in the village. At that

time, Teja Singh was seen coming from the flour mill of Sohan

Lal, which was near the Gurudwara. Thereupon, Gurbachan Singh

and Balvir Singh, Manjeet Singh, and Darshan Singh, who hand

come armed with ‘lathi’, ‘toka’, axe, and ‘gandasi’

respectively, had beaten and inflicted injuries on Teja Singh,

which resulted in his death on the spot. Harbhajan Singh (PW-

1) had also suffered injuries in the incident.

3. First Information Report1 was filed on the same day, mentions

the names of Gurbachan Singh, Darshan Singh, Balvir Singh and

Manjit Singh, and also the names of Jangir Kaur and Manjeet

Kaur, who were statedly present at the place of occurrence.

However, as per the FIR, no specific acts, verbal or physical

in nature, were attributed to Jangir Kaur and Manjeet Kaur.

4. The trial court, vide judgment dated 07.11.2001 had tried and

convicted Gurbachan Singh along with others namely, Balvir

Singh, Manjeet Singh, Darshan Singh, and Jangir Kaur under the

following provisions of the Indian Penal Code, 18602:

(a) Section 302 read with Section 149 of the IPC- Life

1 For short, “FIR” 2 For short, “IPC”.

3 imprisonment and fine of Rs. l000/- each, with default

stipulation of 2 months simple imprisonment;

(b) Section 324 read with Section 149 of the IPC- One and

half years' rigorous imprisonment and fine of Rs.500/-

each, with default stipulation of one-month simple

imprisonment;

(c) Section 323 read with Section 149 of the IPC- 3 months

rigorous imprisonment and fine of Rs. l00, with default

stipulation of 7 days simple imprisonment; and

(d) Section 148 of the IPC - one year rigorous imprisonment

and fine of Rs.100/- each, with default stipulation of 7

days simple imprisonment.

Manjeet Kaur was tried separately in the year 2004, as

she had absconded. She was convicted by the trial court, which

conviction was set aside by the High Court. The judgment of

acquittal in her case has become final.

5. On appeal preferred by Gurbachan Singh, Balvir Singh, Manjeet

Singh, Darshan Singh, and Jangir Kaur, the Division Bench of

High Court of Judicature for Rajasthan at Jodhpur, vide

judgment dated 04.04.2008, allowed the appeal filed by Jangir

Kaur and has acquitted her. The appeal of Gurbachan Singh was

partly allowed as his conviction under Section 302 read with

149, Section 147, Section 148, Section 324 read with 149, and

Section 323 read with 149 of the IPC was set aside, and he has

been convicted under Section 323 of the IPC for the injuries

caused to Teja Singh, and was directed to be released, as he 4

had suffered the maximum punishment provided for the offence.

Conviction of Balvir Singh, Manjeet Singh and Darshan Singh

under Sections 149 and 148 of the IPC was set aside, albeit,

their conviction under Section 302 was maintained with the aid

of Section 34 of the IPC. Their conviction and sentence under

Section 324 read with Section 34 of the IPC for injuries

caused to Harbhajan Singh (PW-1) was maintained.

6. It appears that Balvir Singh, Manjeet Singh, and Darshan Singh

have not challenged their conviction and sentence imposed,

which has attained finality.

7. As such, the question before us, in this appeal by the State

of Rajasthan is whether the High Court was justified in

setting aside the conviction and sentence awarded to Gurbachan

Singh under Section 302 read with other provisions of the IPC,

by convicting him only under Section 323 of the IPC, in view

of the finding that he did not share common intention with

Balvir Singh, Manjeet Singh, and Darshan Singh to cause the

death of Teja Singh, as he only inflicted wounds on his feet

with a ‘lathi’.

8. Pertinently, the High Court while partly accepting the appeal

preferred by Gurbachan Singh, has held as under:

“Now the question remains about accused Gurbachan who as per ocular testimony was armed with 'lathi' and the same was recovered also. After he gave an information through Ex. P/41 and the same was covered through Ex.P/23 and the same was also smeared with human blood. Harbhajan Singh himself is injured whose injury report Ex. P/15 was prepared by Dr. Mohan Lal Gupta. As per injury report he has received as many as eight injuries on his person, out of which one is from sharp edged weapon and as per statement of Harbhajan Singh said injury was inflicted by accused Balvir Singh with 'toka', when he reached on the spot 5

to save his brother. Gurbachan Singh gave 'lathi' blows on his person. From the testimony of ocular witnesses it can safely be inferred that accused Gurbachan Singh was not sharing the common intention as he was armed only with 'lathi' and whatever injuries on the person of the deceased which were given on vital part of the body of the deceased.”

9. The aforesaid reasoning, accepts and in our opinion rightly

that Gurbachan Singh was present at the place of the

occurrence with Balvir Singh, Manjeet Singh, and Darshan Singh

when the violence took place, which resulted in death of Teja

Singh on 06.11.2000 at about 7:30 P.M. Harbhajan Singh (PW-1),

the brother of Teja Singh, along with his wife, Jasveer Kaur

(PW-2), who were going to the Gurudwara in the village, had

seen Teja Singh coming from the flour mill of Sohan Lal, which

was near the Gurudwara. Gurbachan Singh, Darshan Singh, Balvir

Singh, and Manjit Singh had then accosted Teja Singh.

Harbhajan Singh (PW-1) and his wife Jasveer Kaur (PW-2) have

deposed that Gurbachan Singh had come with a 'lathi', whereas

Darshan Singh were seen with an axe, Balvir Singh with a

'toka' and Manjeet Singh with a 'gandasi'. They had surrounded

Teja Singh. Gurbachan Singh had then struck the feet of Teja

Singh with ‘lathi’, who then fell-down. Thereupon, Gurbachan

Singh and the co-convicts had beaten and inflicted injuries

and wounds to Teja Singh. Balvir Singh in particular had used

a 'toka', a sharp-edged weapon, to inflict incised wounds on

the head of Teja Singh. The motive and cause was the land

dispute between the brothers, and the occurrence at 5 P.M on

06.11.2000, when Teja Singh had objected to Gurbachan Singh

and Balvir Singh ploughing the plot of the water works 6

department, and the village meeting where tempers got flared

with Gurbachan Singh and Balvir Singh leaving the meeting in

anger. It is pertinent that Harbhajan Singh (PW-1) was also

injured during the violence.

10. The post-mortem report marked as exhibit P-14 proved by Dr.

Mohan Lal Gupta, (PW-9) had referred to 8 bone-deep injuries

of different sizes on the head of Teja Singh. He had also

deposed that these injuries could have been caused by sharp-

edged weapons such as axe, 'toka', ‘gandasi’, 'lathi', and,

etc., which were sufficient to cause death in ordinary course.

11. Given the aforesaid position, we are of the view that Section

34 of the IPC i.e., common intention, is clearly attracted in

the case of Gurbachan Singh, whose case cannot be

distinguished, so as to exclude him as one who did not share

common intention with Darshan Singh, Balvir Singh, and Manjit

Singh. Section 34 of the IPC makes a co-perpetrator, who had

participated in the offence, equally liable on the principle

of joint liability. For Section 34 of the IPC to apply, there

should be common intention among the co-perpetrators, which

means that there should be community of purpose and common

design. Common intention can be formed at the spur of the

moment and during the occurrence itself. Common intention is

necessarily a psychological fact and as such, direct evidence

normally will not be available. Therefore, in most cases,

whether or not there exists a common intention, has to be

determined by drawing inference from the facts proved.

Constructive intention, can be arrived at only when the court 7

can hold that the accused must have preconceived the result

that ensued in furtherance of the common intention.

12. The impugned judgment observes that common intention cannot be

inferred from the conduct of Gurbachan Singh, as he was only

armed with ‘lathi’ and had struck only on the feet of Teja

Singh. However, we are of the opinion that common intention to

inflict injuries and cause the death of Teja Singh, can be

gathered from the conduct and action of Gurbachan Singh.

First, it is deductible from the quoted paragraph of the

impugned judgment read with the depositions of Harbhajan Singh

(PW-1) and Jasveer Kaur (PW-2), that Gurbachan Singh had come

prepared with ‘lathi’ along with others who had carried

‘toka’, axe and ‘gandasi’. This is corroborated by the fact

that blood-smeared ‘lathi’ was recovered from the possession

of Gurbachan Singh. The evidence establishes the participation

of Gurbachan Singh, in commission of the offence with co-

participants/co-convicts. Secondly, Gurbachan Singh, was the

first one to attack and inflict injury on Teja Singh, by

hitting him on the feet with a ‘lathi’, who had then fallen

down. Lastly, Gurbachan Singh along with co-convicts, had

inflicted 8 incised wounds on head and other injuries on vital

and other parts on the person of Teja Singh, as recorded in

the post-mortem report (Ex.P.14). The statement of eye

witnesses clearly reveal that Gurbachan Singh did not give

just one ‘lathi’ blow, as it is being said by the defence, but

he continued to give ‘lathi’ blows to the deceased, even when

he fell down. This he did along with the other co-convicts, 8

Balvir Singh, Manjeet Singh and Darshan Singh, who had

inflicted injuries with ‘toka’, axe and ‘gandasi’. These facts

establish that Gurbachan Singh had shared the common intention

to cause injuries with other co-convicts, and the crime was

committed in furtherance of the common intention, which led to

the death of Teja Singh. Therefore, all of them, including

Gurbachan Singh, would be responsible for the criminal act

i.e., the offence under Section 302 of the IPC, irrespective

of the part played by them.

13. Recording the aforesaid, we set aside the impugned judgment

passed by the High Court acquitting Gurbachan Singh under

Section 302 of the IPC, and he is convicted for murder of Teja

Singh under Section 302 read with Section 34 IPC. Gurbachan

Singh’s conviction under Section 324 of the IPC for the

injuries inflicted on Harbhajan Singh (PW-1) is also

maintained. We restore the order of sentence passed by the

trial court imposing punishment of life imprisonment on

Gurbachan Singh, for the offence under Section 302 of the IPC

albeit read with Section 34 of the IPC, along with a fine of

Rs. 1,000/-, with the stipulation that in case of non-payment,

he would undergo sentence of simple imprisonment for a period

of two months. Benefit of Section 428 of the Code of Criminal

Procedure, 1973 will be given. We, however, accept the view

taken by the High Court that the conviction under Section 149

read with Section 148 of the IPC cannot be sustained as the

requirement of unlawful assembly to attract these provisions

of the IPC, is not satisfied.

9

14. Gurbachan Singh will surrender within 21 days to undergo the

remaining sentence. In case, Gurbachan Singh does not

surrender within the said period, the authorities/court will

take action in accordance with law to detain Gurbachan Singh,

so as to undergo remaining sentence.

15. The appeal is allowed in the aforesaid terms.

16. Pending application(s), if any, shall stand disposed of.

..................J. (SANJIV KHANNA)

..................J. (SUDHANSHU DHULIA)

NEW DELHI;

DECEMBER 07, 2022.