Jammu & Kashmir High Court
Simon And Ors. vs State Th.Home Deptt. on 27 January, 2014
Bench: Hasnain Massodi, Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Appeal No. 13/2012
Cr.MA no. 49/2013
c/w
Confirm No. 08/2012
Date of order: 27/01/2014
Simon and ors. v. State and anr.
Coram:
Hon'ble Mr. Justice Hasnain Massodi, Judge
Hon'ble Mr. Justice Bansi Lal Bhat, Judge
Appearing Counsel:
For the appellant(s) : Mr. P. N. Goja, Advocate
Mr. Munish Chopra, Advocate.
For the respondent(s): Mr. Sunil Sethi, Sr. Advocate with
Mr. Ravi Dogra, Advocate.
1. Whether to be reported in : Yes Press/Journal/Media
2. Whether to be reported in : Yes Digest/Journal Per Massodi, J
1. Station House Officer, Police Station, Pir Mitha, Jammu on 23.03.2002, presented a charge-sheet against the appellants before learned Chief Judicial Magistrate, Jammu, alleging therein that appellants on 04.02.2002, at 6.45 P.M. came to the grocery shop of one Shakti Kumar Gupta son of Janak Raj Gupta at Bawe Wali Gali, Jammu, demanded money from him and on his refusal, appellant Simon alias Sonu stabbed Shakti Kumar Gupta, while two other appellants, namely, Darshan Gill and Suram Chand alias Surma caught hold of his arms 2 and that the victim of the murderous assault breathed his last on way to a local hospital.
2. The case being one exclusively triable by the Court of Sessions, learned Chief Judicial Magistrate, Jammu, committed the case to Sessions Court, Jammu on 23.03.2002. Appellants were on 27.05.2012 formally charged of the offences punishable under Sections 302/34 Ranbir Penal Code (hereinafter for short, RPC) and 4/25 Arms Act. They denied the charge and asked for regular trial. The prosecution, therefore, was left with no option but to examine the witnesses listed in the charge sheet to substantiate the charges against each of them.
3. The prosecution of the 18 witnesses, listed in the charge-sheet, examined as many as 12 witnesses. The witnesses appearing in the witness box to substantiate the prosecution case, were PWs-Janak Raj Gupta father of victim, who reported the occurrence to the Police Station, Pir Mitha, Parvesh Gupta widow of deceased, Suraj Parkash, his brother in law, PW-Chuni Lal, a local shopkeeper - all witnesses to the occurrence and Constable- Mohd. Aslam, HC-Daljit Singh, Manohar Singh-Naib Tehsildar, Baldev Raj-Patwari, were associated with the investigation, Dr. Manju Tickoo, 3 Medical Officer - who conducted the post mortem examination on the dead body and Dr. K. K. Raina, and Dr. S. C. Bhagat, Scientific Officers, FSL-who gave their expert opinion touching some aspects of the investigation. PW-Munir Bhat, Investigating Officer, was also examined by the prosecution to substantiate its case. The prosecution witnesses who for one or other reason stayed away from the witness box were Gandharb Singh, ASI, Rajesh Kumar, SPO, Gopal Krishan, Kamal Kishore, Kuldeep Kumar, and Pushpa Devi.
4. The incriminatory material come across in the prosecution evidence, was put to each of the appellants on 03.01.2011. Appellants denied veracity of the prosecution evidence and insisted that they were not falsely implicated and that testimony rendered by the prosecution witnesses was false and fabricated. The appellants, however, did not examine any witness in their defence.
5. Trial Court, on going through the charge-sheet, evidence and record, stand taken by the appellants in their statements recorded under Section 342 Cr.PC and upon hearing learned counsel for the parties, held the prosecution to have proved its case against the appellants beyond reasonable doubt. Appellants, were 4 held guilty of offences punishable under Sections 302/34 RPC. The trial Court found that the appellants with criminal attention came to the shop of deceased at Bawe Wali Gali on 04.02.2002 at 6.45 P.M to extort money from deceased and on his refusal to pay, they dragged the deceased from the shop and made a murderous assault on him with intention to commit his murder. The appellants, were, accordingly, convicted of offences punishable under Sections 302/34 RPC and sentenced to imprisonment for life and fine of Rs.10,000/- each. In default of payment of fine, they are to further suffer imprisonment of six months.
6. Trial Court judgment dated 30.01.2012 whereby appellants have been convicted of offences punishable under Sections 302/34 RPC and order dated 31.01.2012 imposing sentence, are questioned in the criminal appeal on hand on the grounds set out in the memo of appeal.
7. Learned trial judge in compliance of mandate of Section 374 Cr.P.C has also submitted the record for confirmation of sentence. It is registered as Confirmation No. 8 of 2012 and is taken up along with the appeal.
8. We have gone through the trial Court judgment and order dated 30.01.2012, the grounds set out in the 5 memo of appeal and the trial court record. We have heard learned counsel for the parties at length.
9. The trial Court judgment is assailed in the present Criminal Appeal on the grounds that the prosecution evidence, as regards information to Police regarding the occurrence, identity of the accused, recovery of weapon of offence, suffers from serious contradictions and, therefore, does not inspire confidence. It is pleaded that the investigation has not been properly conducted and the gaps in investigation are not superficial but go to the core of prosecution case. The expert (medical) evidence brought on record, according to the appellants/accused, does not lead to the conclusion that the injuries inflicted were sufficient in ordinary course to cause death. Learned Trial Judge is said to have failed to appreciate that injuries found on person of the deceased having regard to their dimensions reflected in the post-mortem report were not sufficient in all probability to cause death. The appellants/accused 2 and 3 further lay emphasis on absence of "common intention" on their part to commit the offence alleged against them. It is insisted that prosecution evidence does not lead to the conclusion that the appellants/accused had conceived a prearranged plan to do away with the deceased, or they 6 to share common intention with the appellant no. 1 to commit murder of the deceased. It is pointed out that the appellants/accused 2 and 3 were admittedly unarmed did not plan to kill the deceased and no such intention was discernible from record.
10. The case set up by the appellants/accused to question the trial Court judgment makes it a necessary to go through the prosecution evidence, to find out whether the trial Court judgment is based on proper appreciation of the evidence brought on the file or as contended by the appellants/accused, the prosecution evidence suffers from serious discrepancies and contradictions and ought not have been relied upon by the trial Court to record conviction and hold the appellants/accused guilty of offence punishable under Section 302/34 RPC. Once a closer look is given to the prosecution evidence, the focus is to shift to presence of "common intention" so as to rope in the appellants/accused 2 and 3 in the alleged occurrence with the aid of Section 34 in Ranbir Penal Code.
11. The case set up by the prosecution as unfolded in the charge sheet was that on 04.02.2002 at about 6.45 P.M. the appellants/accused went to the shop of the deceased at Bawe Wali Gali, Shahidi Chowk, Jammu, 7 demanded money from deceased and on his refusal dragged him out of the shop and while the appellants/accused 2 and 3 caught hold of his arms, the appellant no. 1 gave few blows with Kirch on the chest and belly of the deceased, inflicting injuries on him that resulted in his death. The appellants/accused are said to have left the deceased in a pool of blood and run away from the place of occurrence.
12. The prosecution to prove the charge against the appellants/accused, examined Shri Janak Raj Gupta - father of the deceased, Parvesh Kumari - his widow, Shri Suraj Parkash - brother in law of the deceased, Shri Chuni Lal, a resident of Bawe Wali Gali, running his shop in front of the shop of deceased. The prosecution also examined witness associated with the investigation of the case, namely, Daljit Singh - Photographer, Manohar Singh - Executive Magistrate in whose presence different items were resealed and sent to Forensic Science Laboratory, Dr. K. K. Raina and Dr. S. C. Bhagat, Forensic Scientific Officers, Forensic Science Laboratory, Dr. Manju Tickoo, who conducted post mortem examination on the dead body and Shri Baldev Singh - Local Patwari. PW-Shri Muneer Ahmad, SHO P/S City also appeared in the witness box.
8
13. It is pertinent to point out that the deceased ran his small business from a shop located in ground floor of his residential house. The presence of the witnesses claimed by the prosecution, to have witnessed the occurrence is, therefore, natural and cannot be doubted on any ground. PWs - Shri Janak Raj Gupta & Parvesh Kumari are not to be disbelieved when they claim that they were sitting in upper room i.e. room above the shop at the time of occurrence. Presence of PW - Suraj Parkash, son in law of PW - Janak Raj and brother in law of the deceased at the time of occurrence is explained by PWs-Shri Janak Raj & Parvesh Kumari stating that the family was having consultations about the marriage ceremony of sister of the deceased and PW - Suraj Parkash visited them a little before the occurrence in said connection. Presence of PW - Chuni Lal another eye witness at the scene of occurrence also sounds convincing as he, admittedly, is running a shop in front of the shop of the deceased. Let us now go to the testimony rendered by the witnesses.
14. PW-Shri Janak Raj stated before the trial Court that on 04.02.2002 at 6.45 P. M. when he was present in his house with PWs Suraj Parkash, Parvesh Kumari and his wife Pushpa Devi, he heard noise from the shop, situated downstairs and someone asking money from his son 9 (deceased); that he opened the window and saw the appellants/accused demanding money from the deceased and the deceased refusing to accede to their demand. The witness added that the appellants/accused are local goons and indulge in extortion. The witness stated that he rushed out from his room and found the appellants/accused 2 and 3 to have caught hold of the deceased and the appellant no. 1 inflicted 7 to 8 Kirch blows on the body of the deceased. He claimed to have rushed to the Police Station, lodged report EXPWJR, made the statement EXPWJR1 in support of EXPWJR and rushed to the hospital with the police personnel as the deceased had been evacuated to hospital while he lodged the report. PW - Janak Raj admitted to be a witness to the seizure memos EXPWJR2 to EXPWJR8 whereby blood stained clay, clothes of the deceased were seized and other procedures in connection with investigation completed. The witness denied that it was dark at the time of occurrence and maintained that there was sufficient light, as the road in front of shops, was lit by the light from shops and adjoining houses. PW - Janak Raj Gupta claimed to have seen PW - Chuni Lal intervening at the time of occurrence and that only PW- Chuni lal's shop was open at the time of occurrence. The 10 witness in his cross examination reiterated that, when he came down, he saw the appellants/accused 2 and 3 holding the deceased and appellant no. 1 giving Kirch blows. The witness claimed to have gone on foot to a police station, at the short distance from the place of occurrence and to have provided the paper on which EXPWJR was scribed.
15. PW-Parvesh Kumari claimed to have been busy in consultation with other family members including PW - Suraj Parkash in the evening of 04.02.2002, when she heard noise from downstairs; that she opened the window and saw the appellants/accused, known to her prior to the occurrence, demanding money from the deceased. The witness added that the appellants/accused were previously harassing the deceased and demanding money from him and that they are habitual of extortion. The witness further stated that when her husband (deceased), refused to meet the demand, the appellants/accused dragged him out of the shop; that the witness alongwith PWs Suraj Parkash and parents-in-law rushed out and saw that the appellants/accused 2 and 3 had caught hold of the deceased by his arms and appellant no. 1 inflicted 5/6 Kirch blows on the belly and chest of the deceased; that 11 the deceased tried to save himself, but did not succeed and the appellants - accused ran away from the scene of occurrence leaving the deceased in a pool of blood; that the deceased was shifted to hospital where he succumbed to his injuries. The witness in his cross examination admitted that projections/sunshades laid over the shops, make it impossible for one sitting upstairs to see someone inside the room and that the three windows in the first floor of their house opening towards the lane have iron grill fixed making it impossible to protrude out the head. The witness has, however, maintained that there was sufficient light at the place of occurrence from the adjoining houses and shops including house of one-Lone Sahib and shop of PW- Chuni Lal running a grocery store near the shop of the deceased.
16. PW-Suraj Parkash claimed to have known the appellants-accused prior to occurrence and to have in the evening of 04.02.2002 gone to the house of his father in law - PW Janak Raj; that while he was busy interacting with his parents in law regarding marriage arrangements of his sister in law, he heard noise from the lane and on looking out from the window, he saw the appellants/accused demanding money and cosmetic 12 items from the deceased and later refusing to fulfil their demand; that the appellants-accused dragged out the deceased from the shop and on witnessing this, he alongwith other family members PWs - Janak Raj, Parvesh Kumari & Pushpa Gupta rushed down and saw that the appellants/accused 2 and 3 - accused, had caught hold of the deceased while appellant no. 1 inflicted Kirch blows on chest, belly and arms of the deceased; that though he tried to intervene the appellants-accused ran away from the scene of occurrence; that while PW-Janak Raj rushed to the Police Station, the witness with the assistance of some other persons assembled on spot shifted the deceased in an auto-rickshaw to hospital; that the doctors declared the deceased brought dead. The witness claimed to have been present at the time of recovery of the weapon of offence and to have put his signatures on the Seizure Memos EXPWJR2 & EXPWJR3 as also the Recovery Memo EXPWSP and site plan of place of recovery - EXPWSP1. The witness deposed that the appellants-
accused ran towards Gujjar Nagar, hid themselves near the Church and were arrested by the 13 Police; that the appellant no. 1 had hidden the weapon of offence under his belt and the weapon was recovered from him in his presence. The witness maintained that PW-Chuni Lal was present on the shop at the time of occurrence, the shop was open and the lane was lit by a light from the shop. PW-Chuni Lal, in turn, admitted to have been present in a shop at the time of occurrence and to have seen a crowd at the place of occurrence at about 7.00 P.M, but did not give details of events, insisting that he was busy with a few customers at the time of occurrence. The witness added that the deceased was evacuated to the hospital, and lot of blood was spilt on the ground at the place of occurrence. The witness in his cross examination admitted to have seen the deceased falling on the ground. He, however, maintained that it was dark and after the occurrence he left for his home. PW-Chuni Lal, though reluctant to give full details of the occurrence, nevertheless lend support to the version given by the PWs-Janak Raj Gupta, Parvesh Kumari and Suraj Parkash. The three eye witnesses in their statements insisted that PW-Chuni Lal was present in his shop at the time of occurrence and the lane i.e. place of occurrence, between his shop and that of the deceased was amongst other sources of light, lit by light 14 from PW-Chuni Lal's shop. PW-Chuni Lal claimed to have been busy with his customers at the time of occurrence. PW-Chuni Lal added that his son-Gopal, running a cosmetic shop next to the shop of the deceased had also his shop open and was present inside the shop. The witness also admitted that the house of Mr. Lone is adjacent to the place of occurrence.
17. The witness to the occurrence examined by the prosecution, therefore, gave a vivid account of the occurrence and sequence of events that took place near the residential house of the witnesses in the unfortunate evening of 04.02.2002. It may be recalled that PWs- Janak Raj, Parvesh Kumari & Suraj Parkash in their statements identified Mr. Lone's house as one of the sources of light that lit the lane or place of occurrence. PW-Chuni Lal obviously would not have been able to transact business with his customers without proper light in the shop.
18. The eye witness account, therefore, is not to be disbelieved on the ground that it would not have been possible for the eye witnesses to identify the assailants of the deceased. It is to be kept in mind that the appellants- accused were from the locality and known to all the three eye witnesses. They frequented the shop of the deceased 15 to extort money. This apart, the eye witnesses were present in the room above the shop and ought to be believed when they claim that they heard the appellants- accused demanding money and the deceased refusing to oblige them. The fact that the room where they were present has three windows towards the lane, where shop in the ground floor opened reinforces their statements. The fact that the windows have iron grill fixed, does not make any difference as none of the witness claimed to have protruded, his head out of window. They only stated to have opened the window and heard the exchange of words between the appellants-accused and the deceased and once the situation started to take an ugly turn, to have rushed down to the scene of occurrence. The fact that they were just one flight of stairs, away from the scene of occurrence, supports their claim that they immediately reached the place of occurrence and saw appellant no. 1 giving one after another Kirch blow on the chest and belly of the deceased, while his arms were held by other two appellants/accused. It, therefore, sounds convincing that the witnesses recognized or identified the appellants-accused and witnessed the occurrence.
19. The testimony of the PWs-Janak Raj, Parvesh Kumari & Suraj Parkash does not suffer from serious 16 contradictions and discrepancies as would rob it of its creditworthiness and reliability. It is well settled law that minor contradictions point to veracity of the testimony rather than its unreliability. When the witnesses who incidentally are close relationship of the victim, see the occurrence and are witness to the painful events, each one of them is likely to see and register the events against the background of the mental trauma, he undergoes while watching his dear one being subjected to murderous assault. It is quite natural that minor discrepancies in their statements surface when they recount such events. The minor discrepancies and contradictions are to lead us to the belief that the testimony is untutored and free from any concoctions and afterthought. We, on the other hand, must be alarmed, while evaluating the evidence in a case like one on hand, when the versions of occurrence given by witnesses to the occurrence are free from such minor discrepancies.
20. Supreme Court in Kuria and anr. V. State of Rajasthan, AIR 2013 SC 1085, while dilating on the importance to be given to the discrepancies and improvements in the statements of the prosecution witnesses, has observed:-
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"Discrepancies or improvements, which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, nor directly related to the occurrence, is not a ground to doubt the testimony of a witness."
In the present case, there are no discrepancies in the statements made by the prosecution witness as regards core of the prosecution case. The contradictions and improvements, if any, are minor and peripheral in nature. These do not create any dent in the prosecution case.
21. Let us now turn to the indirect evidence, to find out whether such evidence corroborates or belies the testimony of eye witnesses. The FSL report EXPWAK duly proved by PW-Dr. K. K. Raina, Scientific Officer substantiates that the blood found on the ground at the scene of occurrence, the clothes on the body of the 18 deceased, was that of the deceased. PW-Dr. H. C. Bhagat also Forensic Science Experts has on examination of the clothes on the body of the deceased at the time of occurrence, as recorded in his report EXPWHC, found possibility of five cuts on the front of the shirt, sweater and undershirt to have been caused by the Kirch recovered from the appellant no.1. The weapon of offence
- Kirch was recovered from possession of appellant no. 1 on his arrest, two hours after the occurrence from a lane near Church at Prem Nagar, Jammu in presence of witnesses to the Recovery Memo EXPWSP. PW-Dr. Manju Tickoo who conduced post-mortem examination on the dead body, on examination of the weapon of offence (Ext.M-MT/2) - Kirch certified vide Ext.P-MT/1 that the injuries found by her on the dead body could have been inflicted by the Kirch. The post mortem report - Ext.P-MT corroborated the testimony of eye witnesses as regards nature of the attack and the part of the body of the deceased on which Kirch blows were inflicted by the appellant no. 1. The statements made by the prosecution witnesses therefore, were sufficiently corroborated by the circumstantial and expert evidence brought on record.
22. The incriminating material come across in the prosecution evidence was put to the appellants-accused. 19 The appellants-accused did not make any effort to offer any explanation except that the statements made by the prosecution witnesses were not true but false. The appellants-accused did not make even a feeble attempt to point to the reasons that made the prosecution witnesses to falsely implicate the appellants-accused No explanations came forth regarding any of the aspects of the prosecution evidence. The appellants-accused did not adduce any evidence in their defence.
23. Having regard to the quality of prosecution evidence brought on record and the fact that the testimony of the prosecution witnesses was tested on the anvil of cross examination and came out unscathed and un- impeached, and furthermore that the testimony was fully corroborated and reinforced by indirect evidence, the trial court was justified in declaring the prosecution to have proved its case against the appellants-accused beyond reasonable doubt.
24. Let us now deal with the stand taken by the appellants/accused 2 and 3 regarding absence of "common intention" with appellant no. 1 to commit murder of Late Shakti Kumar. Section 34 Ranbir Penal Code is an extension of principle of constructive liability, to criminal law. It provides that when a criminal act is 20 done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act as if it were done by him alone. Once more than one persons share a common intention to commit an offence, each one of them may not do an act in furtherance of such common intention as may be done by another person or persons with whom he shares common intention and who are his partners in the crime. However, on the principle of joint criminal liability, he would be responsible for the act done by such other person or persons as if it was done by him. To illustrate, two persons share common intention to commit murder of a third person, one of the two persons opens fire on the victim resulting in his death, while his colleague does not commit any overt act except immobilizing the victim, or making it impossible for the victim to leave the place where he is attacked. The second person though not opening fire on the victim or causing any bodily harm to him, would be roped in for murder of the victim on the principle of joint criminal liability as laid down in Section 34 Ranbir Penal Code. Common intention would require preplanning or developing intention to commit crime, anterior in any point of time. The expression "in furtherance of common intention" would imply that 21 intention to commit crime is shared by the perpetrators of crime before they actually commit the crime. However, cases can be visualised where "common intention" may develop on spot and in furtherance of such "common intention" the crime may be committed. Let us take example of two persons planning to abduct a businessman for ransom. They in furtherance of such common intention go to his house to commit the crime. They while executing their plan face stiff resistance from the victim and to avoid being trapped and caught and to silence the victim, one of the assailants opens fire on the victim resulting in his instantaneous death. His colleague though having on role in murder of the victim, may be roped in with the aid of Section 34 Ranbir Penal Code on the ground that a common intention to commit the murder developed on spot and murder was committed in furtherance of such common intention. Everything depends upon the attending circumstances and evidence available on the file. However, the evidence regarding development of common intention to commit an offence more serious and grave than the one originally designed during execution of the initial plan, should be clear, cogent and convincing. To understand true scope and applicability of Section 34 Ranbir Penal Code, one 22 has to place focus on expressions "in furtherance of", "common intention of all" and "that act". These words and expressions make it clear that the "common intention" must animate the accused to do a criminal act and that the accused must act in concert. Common intention is to be distinguished from "similar intention". More than one persons may have a "similar intention" to commit same criminal act, they may individually proceed and the act may be accomplished. They nonetheless would be responsible for their individual act and cannot be held responsible on the principle of joint criminal liability for the acts of others. Suppose more than one persons individually intend to trespass into a public premises and illegally pull down a building standing thereon. They may without there being any meeting of minds individually proceed to the spot and commit different acts to achieve their object. They would be responsible for their individual acts. Again, after a general intention is shared by a few persons and they are driven by the common purpose to commit a criminal offence, each one of them may not participate in commission of the crime by physical presence. But all those who assist in commission of the crime, irrespective of the role played would be equally guilty of the crime. 23 Having taken an overview of the nature of "joint criminal liability" let us redirect our attention to the case in hand.
25. It is argued by learned counsel for the appellants/accused 2 and 3, that even if it assumed that all the appellants/accused shared a "common intention"
to extort money from the deceased and in furtherance of that intention proceeded to the shop of the deceased, the appellants/accused 2 and 3 cannot be said to have shared "common intention" with the appellant no. 1 to commit murder of the deceased. Learned counsel points out that, neither of the two accused i.e. appellants/accused 2 and 3 was armed at the time of occurrence and, therefore, cannot be said to have intended to commit the crime. It is argued that had the appellants/accused 1, 2 and 3 planned to kill the deceased, the appellants/accused 2 and 3 would have come armed to facilitate commission of the crime.
Learned defence counsel insists that merely because the appellants/accused 2 and 3 caught hold of the deceased by his arms when the appellant/accused no. 1 stabbed the deceased, should not have led the trial Court to the conclusion that appellants/accused 2 and 3 shared common intention with the appellant no. 1 to commit murder of the deceased.24
26. Mr. Goja, learned defence counsel to reinforce his stand places reliance on cases reported as Dajya Moshya Bhil v. State of Maharashra, 1984 AIR (SC) 1717, Ajay Sharma v. Stae of Rajasthan, 1998 AI R(SC) 2798, Rana Partap v. State of Haryana, 1983 AIR (SC) 680, Gambir v. State of Maharashtra, 1982 AIR (SC) 1157 and Bechara Kora Modi v. State of West Bengal, 2006 AIR (SC) 638.
27. In Dajya Moshya Bhil's case (supra) the appellants 2 and 3, without being armed accompanied the appellant no. 1 armed with the Dharya to the place of occurrence, where the appellant no. 1 gave a blow with Dharya on the forehead of the deceased resulting into lacerated wounds to the deceased while appellants 2 and 3 pelted stones at him. The Supreme Court observing that in order to attract Section 34, it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act but that each must share intention of the other, held that appellants 2 and 3 though in company of appellant no. 1 were not to be taken to have shared common intention to commit murder of the deceased. In Ajay Sharma's case (supra) the appellants 2 and 3 were found to have caught hold of the deceased and exhorted main accused to strike the deceased whereupon the main accused inflicted a single 25 Kirpan blow on the deceased resulting in his death. The Supreme Court in the facts of the case held the other accused not to have shared common intention with the main accused to commit murder of the deceased. In Rana Pratap's case (supra) the evidence was not very clear whether the appellant and one Satpal continued to hold the deceased even after the main accused started stabbing him. The evidence did not reveal that the appellant and Satpal had exhorted the main accused to kill the deceased. The Supreme Court held that the appellant and Satpal, having regard to the evidence on the file, not to have shared common intention with the main accused to kill the deceased. In Bechara Kora Modi's case (supra) there was no evidence to indicate that the appellants were carrying any incriminatory material with them or had any prior meeting of mind or that the criminal act was done in furtherance of common intention. They were, accordingly, given benefit of doubt.
28. Learned Special Public Prosecutor, on the other hand, insists that the evidence brought on record proved beyond reasonable doubt that the appellants/accused 2 and 3 were united by common intention with the appellant/accused no. 1 to commit murder of the deceased. It is argued that the appellants/accused 2 and 26 3 came together with appellant/accused no. 1 to the scene of occurrence, were present with the appellant/accused no. 1, joined him in extorting money from the deceased, caught hold of the deceased by his arms when he was stabbed by appellant/accused no. 1 and ran away together from the scene of occurrence. It is argued that all these facts and events, convincingly proved by the prosecution, lead to the only conclusion that the appellants/accused shared a common intention to kill the deceased and that the crime was committed in furtherance of such intention. Learned Special Public Prosecutor seeks to draw support from law laid down in State of J&K & anr. v. Haba Ganai & ors. 2003 (3) JKJ 32 (HC), Harbans Kaur and another v. State of Haryana, (2005) 9 SCC 195, Raju Ram v. State of Bihar, (2005) 10 SCC 571 and Mohan Lal & ors. v. State, 2008 (1) JKJ 315 (HC).
29. In Harbans Kaur's case (supra) both the accused physically participated in the crime, though they were armed with different weapons. The Supreme Court observing that under the provisions of Section 34, the essence of liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such common 27 intention, held both the accused to have been rightly convicted of offence punishable under Section 302 with the aid of Section 34. In Raju Ram's case (supra) three assailants, one armed with a dagger and two carrying toy pistols to extort money from the deceased, went to the place of occurrence. Two of the assailants put toy revolvers to the head of the victim and demanded money and on his failure to meet the demand, the third appellant plunged dagger into abdomen of the deceased resulting in his death. The Supreme Court rejecting the argument that the weapons carried by the two accused were toy weapons and they in any case could not have committed the offence, held the two accused to have shared common intention with the accused stabbing the deceased, to kill the deceased. The Court observed:-
"3. However, Mr. Ashok Kumar Sharma, counsel appointed as amicus curiae made a bold endeavour to contend that the maximum which the present appellant would have intended along with his co- assailants was to commit extortion and nothing more. We applied our mind seriously to various facets of the said contention. Learned counsel first submitted that it is possible that the two persons who held the victim with revolvers would not have intended to murder him because if they had so intended they would certainly have used the revolver. Second is an alternative contention that they would have carried and shown only toy revolvers.
4. Either of the said alternatives is not enough to dispel the possibility of the three persons entertaining common intention to commit the murder of the deceased. Our 28 reasons are the following; if the two persons carried only toy revolvers, that would explain why those two persons could not kill the deceased. If the revolvers were genuine, why one of them at least did not use it need not be countenanced by us because the third one had plunged his dagger which itself was a lethal weapon. If the three persons had decided to go for committing extortion they would have thought of what should be done in case they failed to extract the money. It is unthinkable for us that the three would have decided to walk back coolly on failure of their mission to commit extortion."
30. The scope and applicability of Section 34 Ranbir Penal Code fell for consideration of Supreme Court in Goudappa and ors. v. State of Karnataka, AIR 2013 SCC 1595. The Courts summed up the law on the subject in following words:-
"Ordinarily, every man is responsible criminally for a criminal act done by him. No man can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and he can only be held guilty. However, Section 34 of the Indian Penal Code makes an exception to this principle. It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention, animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar or adverse by several persons, if all are done in furtherance of common intention. In such situation, each person is liable for the result of that as if he had done that act himself. Section 34 of the Indian Penal Code thus lays down a principle of joint criminal liability which is only a rule of evidence but does not create a substantive offence. Therefore, if the act is the result of a common intention that every person who did the criminal act share, that common 29 intention would make him liable for the offence committed irrespective of the role which he had in its perpetration. Then how to gather common intention? The common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature and injury caused by one or some of them. Therefore, for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration."
31. In the present case, the appellants came together to the scene of occurrence to extort money from deceased. On his refusal to meet their demand all the three appellants dragged him out from the shop to the lane in front of the shop. The appellants/accused 2 and 3 caught hold of his arms while the appellant/accused no. 1, gave 8 to 9 Kirch blows to the deceased resulting in his death. In the first place, as observed by the Supreme Court in Raju Ram's case (supra), if the appellants had decided to go for committing extortion, they would have thought of what should be done in case they failed to extort the money. In words of Supreme Court, "it is unthinkable -----that the three would have decided to walk back coolly on failure of their mission to commit extortion". Secondly, the appellant/accused no. 1 did not give a single Kirch blow to the deceased. Had it been, so 30 the appellants/accused 2 and 3 could have been very well heard saying that they never shared "common intention" with the appellant/accused no. 1 to commit murder of the deceased and that they at the most can be taken to have shared a "common intention" to cause injury or bodily harm to the deceased on his refusal to meet their demand. The appellants/accused 2 and 3, as the evidence on file would reveal, caught hold of the deceased by his arms all through the attack by appellant no. 1 and while the appellant no. 1 inflicted as many as eight Kirch blows on chest and abdomen of the deceased.
32. It would be appropriate to reproduce hereunder the details of injuries found on the body of the deceased as reflected in the post mortem report Ext.P-MT.
"1. Incised puncture would 1 cm x 0.5 cm on left side of the chest in posterior axillary line.
2. Incised punctured wound 2 cm x 0.5 cm on the left side of the upper abdomen.
3. Incised punctured wound 1.5 cm x 0.5 cm in epigastric region towards left.
4. Incised punctured wound 2 cm x 0.5 cm in the 6th intercoastal space on right side of the chest 4 cms from the midline.
5. Incised punctured wound 2 cm x 0.5 cm on upper front of the right side of hte chest in 3rd intercoastal space 7 cms from idline.
6. Incised punctured wound 2 cm x 0.5 cm in right hypochondrium of abdomen 15 cms from midline.31
7. Incised punctured wound 5 cm x 1.5 cm on front and outer aspect of left forearm in the middle third.
8. Incised punctured wound 2 cm x 0.5 cm on ulnar aspect of left forearm."
The fact that the appellants/accused 2 and 3 kept arms of the deceased in their grip while the appellant/accused no. 1 with ten inch long Kirch with six and a half inch long, and 1 ¼ inch broad sharp part, stabbed the deceased on the vital parts of the body i.e. chest and belly, points to the irresistible conclusion that appellants/accused 2 and 3 shared "common intention"
with the appellant, that had roots in their initial plan and was developed on spot, to kill the deceased. The case law relied upon by the learned defence counsel is markedly distinguishable on the facts and, therefore, does not extend any support to the arguments advanced at bar.
The trial Court, therefore, rightly held the appellants/accused 2 and 3 to have shared "common intention" with the appellant/accused no. 1 to commit murder of the deceased.
33. This takes us the argument that the weapon of offence used by the appellant/accused no. 1, the injuries found on the body of the deceased and in particular failure on the part of PW-Manju Tickoo to record depth of 32 the injuries found on the body of the deceased should have persuaded the trial Court to hold the appellants guilty of the offence of culpable homicide and not that of murder. The appellant no. 1 as noticed gave eight Kirch blows on the chest and belly of the deceased. The injuries with their dimensions have been reproduced in the preceding para. It would be appropriate to notice internal injuries found by PW-Dr. Manju Tickoo on post- mortem examination, on the dead body:-
"1. Incised punctured wound present on upper lobe of left lung.
2. Incised punctured wound on middle lobe of right lung.
3. Incised punctured wound on upper lobe of right lung.
4. Incised punctured wound 3 cm deep into the right lobe of liver.
5. Incised punctured wound 1 cm deep into the substance of spleen."
34. A bare look on the post mortem report Ext.MT would reveal that though PW-Dr. Manju Tickoo has not given the depth of injuries, yet the fact that the weapon of offence had pierced and punctured both the lungs at more than one places and the right lobe of the liver as well as spleen, makes sufficiently clear that the intention on part of the appellants was to commit murder of the deceased. The nature of injuries inflicted, the weapon of offence used and the part of the body selected for attack, 33 lead to the conclusion that intention was not to cause an injury likely to cause death but an injury as would in all probability cause death. It is to be appreciated that intention is to be gathered from the surrounding circumstances. We are not to expect the prosecution to prove intention on the strength of direct evidence. One intends what he does. Same is true about 'common intention'. It is to be carried from the conduct of the accused sought to be roped in with the aid of Section 34 RPC. In the present case, as already stated, the conduct of the appellants/accused leads to the conclusion that they at the time of murderous assault on the deceased, shared 'common intention' to do away with the deceased and were driven by such intention to commit the offence. The case squarely fell within the purview of Section 300 Ranbir Penal Code. Reliance on State of Karnataka v. Siddappa Basanagouda Patil, AIR 1990 SC, 1047, therefore, is misplaced and the law laid down does not extend any support to the appellants' case.
35. For the reasons discussed, we do not find any merit in the appeal. The trial Court judgment, that is well reasoned reflecting a threadbare discussion of all the aspects of the matter, is upheld and so is conviction of all the appellants for the offences punishable under 34 Section 302 read with 34 Ranbir Penal Code. Since, the trial Court in its wisdom has, for the reasons discussed awarded lesser of the alternative punishments prescribed under Section 302 Ranbir Penal Code and the punishment awarded is not questioned by the State, the sentence imposed does not warrant any discussion, more so, when it otherwise is just and reasonable.
36. In the circumstances and for the reasons discussed, the appeal is dismissed and the trial Court judgment dated 31.01.2012, convicting the appellants of the offence punishable under Section 302 read with Section 34 Ranbir Penal Code and the trial Court order dated 31.01.2012 sentencing the appellants, are upheld.
37. The Confirmation no. 8/2012 is answered accordingly.
(Bansi Lal Bhat) (Hasnain Massodi)
Judge Judge
Jammu
27.01.2014
Parshant