Rajasthan High Court - Jaipur
Mahendra Saini vs State Of Rajasthan Through Pp on 19 April, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
(1) D.B. Criminal Appeal No. 634/2013
Mahendra Saini S/o Shri Simbhu Dayal, by caste Mali, aged
about 25 years, R/o Mishra Wali Dhani, Thana Pragpura, District
Jaipur (Rajasthan).
----Appellant
Versus
State of Rajasthan through PP
----Respondent
Connected With (2) D.B. Criminal Appeal No. 1215/2011 Vinod Saini S/o Shri Murlidhar Saini, by caste Saini, aged about 19 years, R/o Dhola Ki Dhani, Tan. Nathawala, P.S. Sahapura, District Jaipur.
----Appellant Versus State of Rajasthan through PP
----Respondent (3) D.B. Criminal Appeal No. 17/2012 Ratan Lal S/o Devi Sahay, by caste Mali, aged about 21 years, R/o Nada Ki Dhani, Tan-Thoi, P.S.-Thoi, District Sikar (Raj.).
----Appellant
Versus
State of Rajasthan through PP
----Respondent
For Appellants : Mr.Suresh Sahni
Mr.M.Sharma
Mr.RS Bhardwaj
For Respondent : Mr.BN Sandu, AAG
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment Reserved on :: 23/03/2018
Judgment Pronounced on :: 19/04/2018
By the Court (Per Hon'ble The Chief Justice):
(2 of 24) [CRLA-634/2013]
1. The three captioned appeals are directed against the judgment dated 04/11/2011 passed by the learned Additional Sessions Judge (Fast Track) No.2, Jaipur Metropolitan, Jaipur whereby, the appellants have been convicted and sentenced, as under:-
(a) Appellant-Mahendra Saini was convicted for offence u/Ss.302 & 460 IPC and S.3/25 of the Arms Act.
For offence u/S.302 IPC, he has been sentenced to life imprisonment with fine of ₹7,000/- with default stipulation, for offence u/S.460 IPC he has been sentenced to rigorous imprisonment for five years with fine of ₹2,000/- with default stipulation and for offence u/S.3/25 of the Arms Act, one year simple imprisonment with fine of ₹1,000/- with default stipulation.
(b) Appellant Vinod Saini was convicted for offence u/Ss.302/34, 460 IPC & S.4/25 of the Arms Act. For offence u/S.302/34 IPC, he has been sentenced to life imprisonment with fine of ₹5,000/- with default stipulation, for offence u/S.460 IPC five years rigorous imprisonment with fine of ₹2,000/- and for offence u/S.4/25 of the Arms Act six months simple imprisonment with fine of ₹500/- with default stipulation.
(c) Appellant Ratan Lal was convicted for offence u/Ss.302/34, 460 IPC and S.4/25 of the Arms Act. For offence u/S.302/34 IPC, he been sentenced to life imprisonment with fine of ₹5,000/- with default stipulation, (3 of 24) [CRLA-634/2013] for offence u/S.460 IPC five years rigorous imprisonment with fine of ₹2,000/- and for offence u/S.4/25 of the Arms Act six months simple imprisonment with fine of ₹500/- with default stipulation.
All the sentences have been directed to run concurrently.
2. Criminal law was set into motion at about 03.15 A.M. on June 28, 2010 when Mahender Kumar Saini, PW-1 reached PS Murlipura, Jaipur City (South) and gave a written complaint :
Ex.P-1. The gist of the statement Ex.P-1 is that: - he is aged 18 years and was a resident of Nahar Ki Dhani, Near Jwala Mata Mandir, Charan Nadi-II; on June 28, 2010 at about 12.30 - 01.00 A.M. Mahender Saini, Ratan Lal and their two associates entered their house by jumping over the wall; he and his family members woke up on hearing noise and tried to catch hold of them whereupon said persons attacked them with swords and fired;
said four persons fired at his brother Suresh with an intention to kill him; his brother Suresh got injured in the attack; said four persons ran away from their house under the impression that he and his family members have died; his brother Suresh died in SMS Hospital during treatment; Ratan Lal and Mahender are well known to him and can identify other two persons; one month prior to June 28, 2010 Mahender had eloped with his sister Mamta Saini and that Mahender along with his associates had orchestrated said attack on account of said enmity.
3. Upon presentation of the written report Ex.P-1, SI Dinesh Kumar made enquiries from Mahender Kumar Saini PW-1, (4 of 24) [CRLA-634/2013] who informed that he and his family members had apprehended Ratan Lal at the time of incident; Ratan Lal got injured during the incident and that they have handed over Ratan Lal to the police officers present at the spot.
4. Based on afore-noted statement Ex.P-1, FIR, Ex.P-2, bearing No.251/2010 for offences punishable under Sections 302/460 IPC and Section 25 (3) Arms Act was registered at PS Murlipura, Jaipur City (South).
5. Pursuant thereto, SI Dinesh Kumar accompanied by SI Bhagwan Singh PW-21, reached the spot.
6. SI Dinesh Kumar prepared rough site plan Ex.P-3 of the place of occurrence. He lifted blood sample earth, earth control and blood control from the place of occurrence and seized the same vide memos Ex.P-12 and Ex.P-13 respectively.
7. On thorough investigation of the place of occurrence, an empty cartridge and a fired bullet were recovered and the same were seized by SI Dinesh Kumar vide memo Ex.P-14.
8. In the meantime, SI Bhagwan Singh PW-21, proceeded to SMS Hospital where he learnt that Suresh (hereinafter referred to as the "deceased") has succumbed to his injuries. He seized the dead-body and commenced inquest proceedings.
9. During inquest proceedings as contemplated under Section 174 Cr.P.C., SI Bhagwan Singh PW-21, recorded (5 of 24) [CRLA-634/2013] statements Ex.P-7, Ex.P-39, Ex.P-40 and Ex.P-41 of Ratan Lal Saini PW-2, the father of the deceased and Ram Kumar PW-6, Babu Lal PW-4 and Santosh PW-7, relatives/neighbours of deceased respectively.
10. Briefly noted, the statement Ex.P-7 of Ratan Lal Saini PW-2, is on the same lines as written statement Ex.P-1 presented by Mahender Kumar Saini PW-1.
11. Ram Kumar PW-6, Babu Lal PW-4 and Santosh PW-7, relatives/neighbours of deceased stated in their respective statements Ex.P-39, Ex.P-40 and Ex.P-41 that they came to know that Mahender Saini, Ratan Lal and their two associates armed with swords and revolvers entered the house of the deceased by climbing the wall on June 28, 2010 between 12.30 - 01.00 A.M. and caused death of deceased by firing shots upon him.
12. After recording afore-noted statements, SI Bhagwan Singh PW-21, prepared inquest report (panchayatnama) Ex.P-5 recording therein that 'enquiries have been made from Ratan Lal Saini, Ram Kumar, Babu Lal and Santosh PW-7 collectively as also individually and all have stated the cause of death of deceased to be injuries caused to him due to firing of a shot and that post- mortem of deceased be conducted to find real cause of his death'.
13. Pursuant thereto, Dr.Deepali Pathak PW-19, conducted post-mortem of the deceased and found following four ante- mortem injuries on the person of the deceased:-
(6 of 24) [CRLA-634/2013]
(i) Punctured lacerated wound of size 0.8 cm x 0.8 cm
on back of right forearm in upper ½ with blackening 100 cm above the heel and with abrasion collar then going through subcutaneous tissue and muscles of right forearm going medially and towards anterior aspect of right forearm upwards obliquely then connecting to anteromedial aspect of right forearm upper 1/3rd communicating to punctured lacerated wound 0.8 cm x 0.8 cm on anteromedial aspect of right forearm 105 cm above heel. First is entry wound of firearm and connecting is exit wound of firearm.
(ii) Punctured lacerated wound of size 0.5 cm x 0.5 cm x cavity deep on left side chest in upper half from 4.5 cm medially downwards to left nipple 6 cm lateral to midline 127 cm above heel with blackening and abrasion collar semi-circular in shape more above the wound suggestive of entry wound of firearm. Then going through subcutaneous tissue then piercing 5th rib on left side beneath the wound, then piercing left middle lobe of lung through & through going downwards in pierce out of left lower lobe then found lying in intercoastal muscle of 5 th & 6th ribs posteriorly adjacent to 6th thoracic vertebra on left side bullet found at this site with blood and blood clots.
(iii) Abrasion of size 3 ½ cm x ½ cm red on front of leg upper 1/3rd.
(iv) Abrasion two in number 1 ½ cm x ½ cm x ½ cm x ½ cm with a gap between each other on mid frontal region in hairline. Red in colour.
14. Dr.Deepali Pathak PW-19, also found a bullet in the body of the deceased which she handed over to a police officer present at the hospital for the purposes of ballistic examination. Dr.Deepali opined the cause of death of deceased as haemorrhage and shock brought about as a result of firearm injury no.ii which is sufficient to cause death in ordinary course of nature.
15. After conduct of post-mortem, SI Bhagwan Singh PW- 21, seized the clothes worn by the deceased at the time of occurrence vide memo Ex.P-8.
(7 of 24) [CRLA-634/2013]
16. Thereafter SI Bhopal Singh PW-20, took over the investigation of the case and recorded statements Ex.D-1, ExD-2 and Ex.D-3 of Ratan Lal Saini PW-2, father of the deceased, Mahender Kumar Saini PW-1, brother of the deceased and Mamta Saini PW-3, sister of the deceased respectively under Section 161 Cr.P.C. (Be it noted here that statements Ex.D-1, ExD-2 and Ex.D- 3 of Ratan Lal Saini PW-2, Mahender Kumar Saini PW-1, and Mamta Saini PW-3 are on the same lines as written statement Ex.P-1 presented by Mahender Kumar Saini PW-1.)
17. On June 28, 2010 at about 07.45 P.M. SI Bhopal Singh PW-20, formally arrested accused Ratan Lal Saini vide memo Ex.P-10. The arrest memo Ex.P-10 records that few abrasions including an injury on head is found on the person of accused Ratan Lal Saini.
18. On June 30, 2010 at about 08.10 A.M. SI Bhopal Singh got forwarded the copy of FIR Ex.P-2 to Ilaqa Magistrate as contemplated under Section 155 Cr.P.C.
19. On July 02, 2010 a team led by SI Bhopal Singh PW- 20, got recovered a Katar at the instance of accused Ratan Lal which was seized vide memo Ex.P-20.
20. On July 03, 2010 a team led by SI Bhopal Singh PW- 20, arrested accused Vinod Saini who got recovered a sword which was seized vide memo Ex.P-15.
(8 of 24) [CRLA-634/2013]
21. On July 06, 2010 a Test Identification Parade of accused Vinod Saini was conducted wherein Mahender Saini PW-1 and Ratan Lal Saini PW-2, identified accused Vinod as third person who had entered their house and attacked the deceased on the fateful of June 28, 2010 as recorded in TIP proceedings Ex.P-43.
22. On November 03, 2010 a team led by SI Bhopal Singh PW-20, arrested accused Mahender Saini who got recovered a country made pistol from the house of his sister which was seized vide memo Ex.P-29 pursuant to a disclosure statement made by him.
23. The seized materials were sent to State Forensic Science Laboratory, Rajasthan for serological examination. Vide report dated May 03, 2011 it was opined that blood group of deceased was 'B' and that blood of group 'B' was found on the vest and knicker worn by the deceased at the time of occurrence.
24. Armed with the aforesaid materials, accused Ratan Lal, Mahender Saini and Vinod Saini were sent for trial. (The fourth accused Krishan Kumar could not be sent for trial having expired in a police encounter on July 22, 2010).
25. In support of its case, the prosecution examined twenty-two witnesses.
(9 of 24) [CRLA-634/2013]
26. We need not note in detail the testimonies of the witnesses associated with the investigation of the case for they have deposed on lines, of factual narrative, noted by us in the foregoing paragraphs, but would be highlighting such testimonies or other evidence which needs to be brought out for purpose of evaluating the creditworthiness of the evidence led at the trial.
27. Mahender Saini PW-1, brother of the deceased, deposed that on June 28, 2010 he and his family members were sleeping in their house. At about 12.00-01.00 A.M. Mahender and his three associates whose names are Vinod, Ratan Lal and Krishan Kumar entered their house by climbing the wall. The aforesaid persons attempted to take his sister Mamta upon which she screamed. This woke him up and his family members and tried to save Mamta, upon which Mahender and his three associates attacked them. Mahender was armed with a firearm. When deceased tried to catch hold of Mahender, he i.e. Mahender fired two shots at the arm and chest of the deceased. Accused Vinod and Ratan Lal attacked the deceased with swords. Accused Krishan Kumar fired a shot in the air which hit the wall. He and his father tried to apprehend the accused persons but managed to catch hold of only accused Ratan Lal and the remaining three accused managed to run away. He presented written report Ex.P-1 in the police station based whereon FIR Ex.P-2 was registered.
28. Being relevant, we proceed to note following portion of cross-examination of Mahender Saini PW-1: -
(10 of 24) [CRLA-634/2013] "It is correct that Mahender Saini had fired a shot at his brother Suresh. Mahender Saini had fired two shots at my brother which caused his death...It is correct that I have not named Vinod in the FIR. Vol. I did not know his name at that time. It is incorrect to suggest that Mahender Saini had taken his sister Mamta for merriment. Vol. He had kidnapped her. I do not know where did Mahender Saini take Mamta. His sister Mamta returned after five days. She was brought back by us and police. Mamta was brought back by my father and police....It is correct that no one except Mahender Saini had fired a shot. Vol. Krishan Kumar had also fired a shot in air....It is correct that I have seen that an injury was inflicted on the head of accused Mahender Saini. I did not inflict injury on Mahender. Accused Ratan and Vinod had had inflicted an injury on head of accused Mahender. Accused Mahender got an injury on his head upon being attacked by sword by accused Ratan and Vinod. It is incorrect to suggest that accused Ratan and Vinod might have inflicted injury on head of Mahender as Mahender was firing shots. Vol. Accused Ratan and Vinod were attacking my brother Suresh but Mahender got injured as he came in between.....It is correct that I have not got written in the FIR that we had apprehended Ratan Lal."
29. Ratan Lal Saini PW-2, father of the deceased, deposed on the lines of his son Mahender Lal Saini.
30. Being relevant, we note following portion of cross- examination of Ratan Lal Saini: -
"Ratan and Vinod had attacked on the head of accused Mahender with sword. It is possible that accused Mahender got injury in his head then...."
31. Mamta PW-3, sister of the deceased, deposed that on May 26, 2010 she was forcefully kidnapped by Mahender and Ratan along with another person and taken to Jodhpur where they kept her confined in a room for four days. They extended beatings to her and also forcibly committed sexual intercourse with her. She was rescued by her brother and other family members from Jaipur. They had threatened her that they would destroy her (11 of 24) [CRLA-634/2013] brother and other family members if she complained against them. Out of fear she did not lodge any complaint against them.
32. With regard to incident of June 28, 2010, Mamta PW-3, deposed in tandem with her brother Mahender Saini PW-1 and father Ratan Lal Saini PW-2.
33. Being relevant, we note following portion of cross- examination of Mamta PW-3: -
"I do not know if my family members had lodged a report of my missing in PS Muralipura. We had reached Muralipura station at about 7-8 P.M. I do not remember when we left Jodhpur. I do not remember if my father had come to police station. Many of my family members had come. I had told entire incident in the police station. I had given an application that I am going with my parents out of my own will. Police had written application at my instance. Application No.7459 was addressed to SHO PS Muralipura. I do not remember if I had got written in said application that I had gone with Mahender out of my own will. I had written statement of going on my own will on account of my ill-health as I had told u already...."
34. Ram Kumar PW-6, Babu Lal PW-4 and Santosh PW-7, relatives/neighbours of deceased deposed that they came to know that Mahender Saini, Ratan Lal and their two associates armed with swords and revolvers entered the house of deceased by climbing wall on June 28, 2010 between 12.30 - 01.00 A.M. and caused death of deceased by firing shots upon him and that they have participated in inquest proceedings of the deceased.
35. SI Bhopal Singh PW-20, deposed about the investigation conducted by him in the present case as has been noted by us in the foregoing paras.
(12 of 24) [CRLA-634/2013]
36. Being relevant, we note following portion of cross- examination of SI Bhopal Singh PW-20: -
"I had not sent the bullet which was taken out from the body of the deceased by the doctor as also the country made pistol seized by me during investigation to the FSL. I cannot tell the reason for the same."
37. Bhagwan Singh PW-21, proved the inquest proceedings conducted by him as have been noted by us in the foregoing paras.
38. In their statements under Section 313 Cr.P.C. the (three) accused persons denied everything and claimed innocence and pleaded false implication.
39. Believing the testimonies of Mahender Saini PW-1, Ratan Lal Saini PW-2 and Mamta PW-3, to be creditworthy, vide judgment dated 04/11/2011 the learned Additional Sessions Judge convicted the three (accused persons) for having committed offences as noted in paragraph 1 above and imposed the sentences recorded in said paragraph.
40. At the hearing of appeals, following five arguments were advanced by learned counsel for the appellants: -
A That proved from the fact that FIR was sent to the Area Magistrate after two days of the incident and an inference needs to be drawn that the FIR in question is ante-dated giving the so-called eyewitnesses ample opportunity to think upon and (13 of 24) [CRLA-634/2013] falsely implicate the accused; keeping in view the fact that as per the prosecution itself Mahender had eloped with Mamta, the sister of the deceased, and hence Mamta's family got an opportunity to take revenge by falsely implicating Mahender and his friends.
B As per the prosecution Ratan Lal was apprehended at the spot by the family members of the deceased yet the prosecution claims that based upon his confessional statement he got recovered the Katar on July 02, 2010. It does not stand to logic that co-accused apprehended at the spot would manage to remove a stated weapon of offence he was carrying and hide it at a place far away from the scene of the crime. It establishes that the Investigating Officer has planted evidence.
C In the initial statement made to the police other than stating four accused came and fired no specific role to anyone has been assigned by the family members of the deceased.
Specific role has been assigned only during the testimony in the court and thus the witnesses should not be believed.
D Injury found on forehead of Mahender has not been explained by the prosecution and it is settled law that the prosecution must explain the injuries on the person of the accused.
E That from the post-mortem report of the deceased it stands established that two firearms were used because entry (14 of 24) [CRLA-634/2013] wound on the right forearm is having a dimension of 0.8 cm and the entry wound on the chest is 0.5 cm. No firearm being recovered from accused Krishan Kumar (who was not sent for trial because he died during police encounter) and the firearm allegedly recovered at the instance of Mahender pursuant to his disclosure statement not being sent for ballistic examination. It could not be ascertained as to who caused the fatal injury on the chest of the deceased. Thus, as per learned counsel, it is not proved as to which of the accused person fired at the chest of the deceased and therefore who committed offence punishable under Section 302 IPC has not surfaced and therefore nobody can be held liable with the aid of Section 34 IPC.
41. The first submission predicated upon sending FIR to Area Magistrate has been advanced unmindful of the testimony of SI Bhagwan Singh PW-21.
42. As already noted above, while conducting inquest proceedings, SI Bhagwan Singh PW-21, had recorded statements of statements Ex.P-7, Ex.P-39, Ex.P-40 and Ex.P-41 of Ratan Lal Saini PW-2, the father of the deceased and Ram Kumar PW-6, Babu Lal PW-4 and Santosh PW-7, relatives/neighbours of deceased respectively. Admittedly the inquest proceedings were conducted the same night when the deceased was shot.
43. In his statement Ex.P-7 Ratan Lal Saini PW-2 stated that in the midnight of June 28, 2010 accused Mahender Saini and (15 of 24) [CRLA-634/2013] Ratan Lal with their two associates had come to their house armed with firearms and swords and attacked the deceased by firing shots upon him.
44. Ram Kumar PW-6, Babu Lal PW-4 and Santosh PW-7, relatives/neighbours of deceased stated in their respective statements Ex.P-39, Ex.P-40 and Ex.P-41 that they came to know that, that Mahender Saini, Ratan Lal and their two associates armed with swords and revolvers entered the house of deceased by climbing wall on June 28, 2010 between 12.30 - 01.00 A.M. and caused death of deceased by firing shots upon him.
45. The fact that afore-noted statements were recorded by SI Bhagwan Singh PW-21, while conducting inquest proceedings stands corroborated from inquest report (panchayatnama) Ex.P-5 prepared by SI Bhagwan Singh recording therein that 'enquiries have been made from Ratan Lal Saini, Ram Kumar, Babu Lal and Santosh PW-7 collectively as also individually and all have stated the cause of death of deceased to be injuries caused to him due to firing of a shot and that post-mortem of deceased be conducted to find real cause of his death'.
46. The moot question is: when was the inquest report prepared by SI Bhagwan Singh PW-21?
47. The answer to the above question lies in post-mortem report Ex.P-22 of the deceased; an independent piece of evidence.
(16 of 24) [CRLA-634/2013]
48. The post-mortem Ex.P-22 records that autopsy of the deceased started at 10.30 A.M. on June 28, 2010. It further records that 'death of deceased took place due to injuries caused to his person by firing of shots by accused persons as mentioned in inquest report (panchnama).' (Emphasis Supplied).
49. The post-mortem report Ex.P-22 coupled with the fact that testimony of SI Bhagwan Singh could not be shaken despite lengthy cross-examination, conclusively establishes that inquest proceedings including recording of statement Ex.P-7 of Ratan Lal Saini were concluded before 10.30 A.M. on June 28, 2010 i.e. before start of post-mortem of the deceased.
50. The incident in question occurred between 10.30-01.00 A.M. on June 28, 2010. We have unimpeachable evidence that Ratan Lal Saini PW-2, father of the deceased, named accused Mahender and Ratan Lal and their two associates as assailants of the deceased at about 10.30 A.M. on June 28, 2010. Such being the position, the possibility that the family of the deceased got an opportunity to take revenge by falsely implicating the accused is completely ruled out in the present case inasmuch as it stands established that Ratan Lal PW-2, named accused Mahender and Ratan Lal and their two associates as assailants of the deceased within ten hours of happening of the occurrence and it is a case where FIR was sent late to the Area Magistrate due to negligence of the investigating officer.
(17 of 24) [CRLA-634/2013] 51. Concerning the second contention advanced.
Concededly, there is logic in the argument. It is obviously a case where the over zealous Investigating Officer, who appears to be having no logic in his head, has attempted to create evidence against accused Ratan Lal. He was unmindful of the fact that Ratan Lal was apprehended at the spot and was in police custody. But a defect in investigation and an over zealous act of the Investigating Officer would only raise the eyebrows of the Court, which raised eyebrows will fall in view of the other over whelming evidence on record. The said over whelming evidence is that Ratan Lal was apprehended at the spot. Meaning thereby, he was in the house of the deceased at the intervening night of June 27/28, 2010. Ratan Lal has led no evidence nor explained why he was present in the house of deceased at midnight and therefore this embellishment will not discredit the eyewitnesses.
52. To deal with the third submission, the decision of Supreme Court reported as (2000) 4 SCC 484 : Jaswant Singh v State of Haryana needs to be noted. In the said case, the evidence of an eye-witness was assailed on the ground that the witness did not state the details of the injuries inflicted on the person who caused the injuries in her statement recorded under Section 161 Cr.P.C. while the said details were deposed to her before the Court. Repelling the above contention, Supreme Court observed: -
"Section 161(2) of the Code requires the person making the statements 'to answer truly all questions relating to such case, put to him by such officer....". It would, (18 of 24) [CRLA-634/2013] therefore, depend on the questions put by the police officer. It is true that a certain statement may now be used under Section 162 contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated in Tehsildar Singh & Anr. v. The State of Urttar Pradesh : 1959 (2) SCR 875: as omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box.
Now the Explanation to Section 162 that an omission to state a fact in the statement may amount to contradiction. However, the explanation makes it clear that the omission must be a significant one and 'otherwise relevant' having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
Reading Section 161(2) of the Criminal Procedure Code with the Explanation to Section 162 an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the Investigating Officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries."
53. In the instant case, SI Bhopal Singh PW-20, the scribe of the statements of the family members of the deceased recorded under Section 161 Cr.P.C. was not asked by defence whether he put questions to the family members of the deceased requiring them to give details of the occurrence.
54. In view of the dictum laid down by the Supreme Court in Jaswant Singh's case (supra) and the failure of defence to put questions pertaining to giving details of the occurrence to the scribe of the statement of family members of the deceased recorded under Section 161 Cr.P.C., we find no merit in the third submission advanced by the counsel for the appellants.
(19 of 24) [CRLA-634/2013]
55. The fourth argument advanced by learned counsel would be relevant when it is a case of a free right or a likely defence of self defence emerging. In this case, the accused had entered the house as an aggressor party. There is bound to be resistance and during resistance some injuries being caused to the accused cannot be ruled out. Additionally the injury is neither fatal nor grievous and therefore the prosecution need not have explained the same.
56. In this regard, we may also need the decision of Supreme Court reported as AIR 1988 SC 863 : Hare Krishan Singh & Ors vs. State of Bihar wherein it was observed as under: -
"We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence. Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again (20 of 24) [CRLA-634/2013] explain how and in what circumstances injuries have been inflicted on the person of the accused.
All the decisions of this Court which have been referred to and discussed above, show that when the court has believed the prosecution witnesses as convincing and trustworthy, the court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence." (Emphasis Supplied)
57. The last submission advanced by the counsel begs the question : whether commission of an overt act has to be proved to a definite accused to attract the applicability of Section 34 IPC?
58. In this regard, it would be apposite to refer to the decision of Supreme Court reported as (2001) 3 SCC 673 : Suresh & Anr vs. State of UP wherein the Court observed as under: -
"A Full Bench of the Patna High Court in The King Emperor vs. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was later approved by the Privy Council dealt with the scope of Section 34 in extenso and noted its effects from all possible interpretations put by various High Courts in the country and the distinguished authors on the subject. The Court did not agree with the limited construction given by Stephen,J. in Emperor v. Nirmal Kanta Roy [1914 (41) Cal.1072] and held that such an interpretation, if accepted, would lead to disastrous results. Concurring with Mookerjee,J. and giving the section wider view Richardson,J. observed:
"It appears to me that Section 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the time and that the language used is susceptible of that meaning. The language follows a common mode of speech. In R. v. Salmon [1880 (6) (21 of 24) [CRLA-634/2013] QBD 79] three men had been negligently firing at a mark. One of them - it was not known which - had unfortunately killed a boy in the rear of the mark. They were all held guilty of manslaughter. Lord Coleridge, C.J. said: -'The death resulted from the action of the three and they are all liable'. Stephen,J. said:- 'Firing a rifle' under such circumstances 'is a highly dangerous act, and all are responsible; for they unite to fire at the spot in question and they all omit to take any precautions whatever to prevent danger.
Moreover, Sections 34, 35 and 37 must be read together, and the use in Section 35 of the phrase 'each of such persons who joins in the act' and in Section 37 of the phrase, 'doing any one of those acts, either singly or jointly with any other person' indicates the true meaning of Section 34. So Section 38 of 'several persons engaged or concerned in a criminal act'. The different mode of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic.
To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognised.
This view of Section 34 gives it an intelligible content in conformity with general notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere."
59. A three Judge Bench of the Supreme Court in the decision reported as [1973 (1) SCC 512] : State of U.P. v. Iftikhar Khan & Ors. after relying upon a host of judgments pronounced by the Privy Council and its earlier decisions observed as under: -
"It is not necessary, to attract Section 34, that any overt act must be done by the particular accused. The section will be attracted if it is established that the criminal act has been done by anyone of the accused persons in furtherance of the common intention. If this is shown- and in this case we are satisfied that it has been so shown-the liability for the crime may be imposed on anyone of the persons in the same manner as if the act (22 of 24) [CRLA-634/2013] were done by him alone. Their accompanying Respondents 1 and 2, who were armed with pistols, in the background spoken to by PWs 1 and 2, they themselves being armed with lathis and all the four coming together in a body and running away together in a body after the shooting was over, coupled with no explanation being given for their presence at the scene, lead to the necessary inference of a prior concert and prearrangement and that the criminal act was done by Respondents 1 and 2 in furtherance of the common intention of all. Therefore, Respondents 3 and 4 will have to be held liable for the crime in the same manner as if the act were done by any one of them alone. In view of the circumstances mentioned above, in our opinion, Respondents 3 and 4 have to be held guilty under Section 302 read with Section 34."
60. In the decision reported as [2000 (4) SCC 110] :
Surender Chauhan v. State of M.P. the Supreme Court held that apart from the fact that there should be two or more accused, two factors must be established - (i) common intention and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. It was observed as follows:-
"Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them (Ramaswami Ayyangar v. State of T.N. : 1976 (3) SCC 779]. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all (23 of 24) [CRLA-634/2013] cases. The common intention can develop even during the course of an occurrence. ( Rajesh Govind Jagesha v. State of Maharashtra : 1999 (8) SCC 428). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established" (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between "common intention" and "similar intention" may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice."
61. In the instant case, the prosecution has successfully established, which is even otherwise proved from the line of cross- examination of the prosecution witnesses, that the four assailants entered the house of the deceased to abduct Mamta. That with this intention, the fact that they were lethally armed, establishes all of them had the common intention to use the weapons to overcome resistance or subdue the members present in the house of Mamta so as to accomplish the motive which was shared by all. The prosecution has established that when there was resistance by the family members of Mamta two firearms were used and one (24 of 24) [CRLA-634/2013] of the shot fired was from a contact range directed towards the chest, a vital part of the body, resulting in the death of the deceased. Therefore, all the four assailants, three of which are the appellants are liable to be punished for an offence punishable under Section 302/34 IPC. The conviction for the other offences also needs to be affirmed.
62. The appeals are accordingly dismissed. Since appellants Vinod Saini and Ratan Lal were admitted to bail, we cancel the bail bonds requiring the two to surrender and suffer the sentences imposed.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ Anil Goyal-PS/63-65