Rajasthan High Court - Jaipur
Bharat Singh And Anr. vs State Of Rajasthan on 30 September, 2005
Equivalent citations: RLW2006(1)RAJ9, 2006(1)WLC94
JUDGMENT Shiv Kumar Sharma, J.
1. Out of eight accused persons, who were put to trial in Sessions Case No. 22/1997, the learned Additional Sessions Judge No. 2, Jaipur District, Jaipur convicted two and acquitted six vide Judgment dated March 23, 2001. The two convicted accused Bharat Singh and Jagdish Singh were sentenced as under :
Jagdish Singh:
Under Section 302 IPC:
To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month rigorous imprisonment. Under Section 323/34 IPC:
To suffer six months simple imprisonment.
Bharat Singh:
Under Section 302/34 IPC:
To suffer life imprisonment and fine of Rs. 500/-, in default to further suffer one month simple imprisonment. Under Section 323 IPC:
To suffer six months simple imprisonment.
Substantive sentences were ordered to run concurrently.
Findings of conviction and acquittal have been assailed in appeal No. 198/2001 and revision petition No. 228/2001, respectively.
2. The prosecution story as unfolded during trial is like this-
On March 24, 1997 the informant Inder Singh (PW. 2) submitted a written report (Ex.P.5) at the police station Chaksu to the effect that in the preceding night around 10.30 PM while the informant along with Mittu Singh, Madan Singh, Gokul Singh, Bal Singh, Bahadur Singh, Nathu Singh and Ummed Singh were celebrating the festival of Holi by singing songs in the chowk of Badbawanpura, Bharat Singh, Mohan Singh, Jagdish Singh, Samundra Singh, Guman Singh, Bhanwar Singh, Prahlad Singh and Ragho Singh (accused) came over there. Finding them singing with the beats of CHANG, the informant and his group also joined them in singing the songs. This act of complainant party was not liked by them and they objected to it. After some altercations Bharat Singh grabbed the color of informant and Mohan Singh gave a fist blow. When informant's son Mitthu Singh intervened, he was also given beating with legs and fists: In the meanwhile Jagdish Singh went to his nearby house and came out with 12 bore gun and opened fire at Mitthu Singh as a result of which Mitthu Singh sustained gunshot injury on his abdomen and he fell down. The informant took injured Mitthu Singh to police station and lodged the report. A case thereafter was registered under Sections 147, 323, 341, 307, 148 and 149 IPC and investigation commenced. After the death of Mitthu Singh Section 302 IPC was added. Autopsy on the dead body was performed, statement of witnesses under Section 161 Cr.P.C. were recorded, necessary memos were drawn, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Jaipur District, Jaipur. Charges under Sections 148, 323, 325/149, 302 and 302/149 IPC were framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C, the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions decided the case as indicated above.
3. Death of Mitthu Singh was indisputably homicidal in nature. As per post mortem report (Ex.P.37) following ante mortem injuries were found on the dead body:
1. Abrasion red 12 x 1/2 cm over back crossing thorasic vertenrac with tissue staining.
2. Multiple punctured lacerated wound with size 1/4 cm in diameter margin with inverted, color of abrasion present with blackening tattooing present with dry dark rend clotted blood present in an area of 22 x 16cm on (R) side front of abdomen lower part (R) iliac fossa (R) Public region extending upto (R) iliac crest and medial part of (R) buttock with a lacerated punctured wound of size 3x2cm on (R) inguinal region with cartridge in the wound.
The cause of death was shock due to hammorhage brought about as a result of antemortem injuries. According to Dr. M.L. Kanwat (PW. 24), who performed autopsy on the dead body, the injury No. 2, caused by fire arm was sufficient, in the ordinary course of nature, to cause death.
4. It will be appropriate at this juncture to refer to the injuries sustained by the informant Inder Singh and accused Jagdish Singh 7 Bharat Singh. Inder Singh vide injury report (Ex.P.7) had sustained following injuries:
1. Abrasion 1 1/2 cm x 1cm middle of forehand on frontal region.
2. Swelling with tenderness 2 1/2 cm x 1 1/2 cm Dorsal aspect of mid of right middle finger.
3. Diffuse swelling with tenderness left ankle joint.
5. Accused Jagdish Singh vide injury report (Ex.P.16A) received following injuries:
1. Stitched wound 4 cm long obliquely irregular in shape just above left nipple extending medially with diffuse swelling.
2. Lacerated wound 5 cm x 1/2 cm x sub cutaneous deep transversely with fresh dry clotted blood.
3. Multiple lacerated wound 5 in number 1 x 1/2 to 1/2 x 1/4 cm up to sub cutaneous deep on (illegible) skin 5 cm lateral to chest.
6. Following injuries were found on the person of accused Bharat Singh vide injury report (Ex.P.18A):
1. Lacerated wound irregular Margin deep clotted blood obliquely extending from left eye upto left eye brows laterally 3cm x 1/2 cm x sub cutaneous tissue deep & 1 cm x 1/2 cm x S.C. deep extend. Left eye lid.
2. Two lacerated wound irregular margin on left parietal region 2 x 1/4 & 1 1/2 x 1/4 cm up to scalp deep.
3. Lacerate wound 1 x 1/2 cm x muscle deep on (illegible) medial aspect of left.
7. Although Mr. N.A. Naqvi, learned Counsel for the accused criticised the impugned judgment from various angles, his main contention was that non explanation of the injuries sustained by accused Jagdish Singh and Bharat Singh is fatal to the prosecution case. The prosecution has suppressed the genesis of the incident therefore it can be inferred that the incident had not occurred in the manner as suggested by the prosecution. It was also contended that the incident had taken place all of sudden without any premeditation and so many persons were having guns in their hands while they were celebrating Holi festival, therefore the charges against the accused are not established beyond reasonable doubt. Moreso, no case under Section 302 IPC is made out against the accused. It is also canvassed that accused Bharat Singh did not share common intention with Jagdish Singh, therefore his conviction under Section 302/34 IPC also deserves to be set aside.
8. Per contra, Mr. S.R. Surana, learned Counsel for the complainant and Mr. M.L. Goyal, learned Public Prosecutor, supported the finding of learned trial Judge qua the accused Jagdish Singh and Bharat Singh and urged that not only Bharat Singh & Jagdish Singh but Mohan Singh, Prahlad Singh, Samunder Singh, Bhanwar Singh, Guman Singh and Radho Singh were liable to be convicted with the aid of Section 149 IPC as they were members of unlawful assembly and their common object was to kill Mitthu Singh.
9. In support of their contention learned Counsel for both the sides placed reliance on various authorities, that shall be considered at appropriate juncture.
10. With the help of learned Counsel we have scrutinised the material on record. The star witness of the prosecution is Inder Singh (PW. 2), who is father of deceased and had himself sustained injuries. In his deposition Inder Singh stated that while he along with his son Mitthu Singh, Madan Singh, Bodu Singh, Balsingh and others were sitting infront of the door of Madan Singh and were gossiping, Jagdish Singh, Bharat Singh, Samunder Singh, Guman Singh, Raghav Singh, Bhanwar Singh and Prahlad Singh assembled near them, squeezed his son Mitthu Singh and started beating him. Jagdish then went to his house came with gun. Bharat Singh then exhorted Jagdish to kill Mitthu Singh and Jagdish opened fire that hit on the left side of abdomen of Mitthu Singh. Finding Mitthu Singh dead, the accused fled away. Other prosecution witnesses viz. Bal Singh (PW. 4), Madan Singh (PW. 5), Bodu Singh (PW. 6), Ummed Singh (PW. 7) and Nathu Singh (PW. 8) corroborated the testimony of Inder Singh. Having gone through the evidence we find that the complainant party and accused party were neighbours and incident had occurred while they were celebrating Holi in the common chowk.
REVISION PETITION NO. 228/2001:
11. Elaborating the submissions Mr. S.R. Surana, learned Counsel for the informant Inder Singh contended that co-accused Mohan Singh, Prahlad Singh, Samunder Singh, Bhanwar Singh, Guman Singh and Radho Singh were the members of unlawful assembly and for the purpose of taking revenge on the pious day of Holi all the accused persons assembled and started beating Inder Singh. When his son Mitthu Singh tried to rescue Inder Singh the accused gave beating to Mitthu Singh, thereafter they dragged the informant and accused Jagdish Singh went to his house, took out 12- bore gun, Bharat Singh then exhorted Jagdish to kill Mitthu Singh and Jagdish opened fire at Mitthu Singh and on account of gunshot injury Mitthu Singh died. According to learned Counsel the trial Court did not properly take into consideration the statements of Inder Singh (PW. 2) and Ummed Singh (PW. 4) who categorically deposed that all the . accused persons formed unlawful assembly. Learned Counsel placed reliance on State of U.P. v. Kishan Chand , wherein the prosecution evidence disclosed that it was Raksha Bandhan day when the singing was going on, the accused appeared at the scene with gun and country-made pistols and hockey sticks, attacked the prosecution party and started firing indiscriminately resulting in the death of Sheo Ram and Mool Chand. Deduced from the surrounding fact and circumstances of the case, their Lordships of Supreme Court indicated that the accused did form an unlawful assembly and in furtherance of that common object of the unlawful assembly, crime was perpetrated.
12. In Lalji v. State of U.P. , it was observed that common object of the unlawful assembly can be gathered from the nature of the assembly arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
13. In State of U.P. v. Dan Singh , it was held that while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149.
14. In Shahbuddin v. State of Rajasthan (RLW 2005 (1) Raj. 526), Division Bench of this Court indicated thus:
It is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or which act. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. While overt act and active participation may indicate common intention of the person perpetrating the crime the mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149 IPC. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.
15. Having analysed the evidence adduced at the trial we find that the complainant party and accused party both resided near the place of occurrence and from the behaviour of the assembly at or before the scene of occurrence no inference can be drawn that co-accused Mohan Singh, Prahlad Singh, Samunder Singh, Bhanwar Singh, Guman Singh and Ragho Singh formed unlawful assembly. As already noticed while complainant party was singing songs the accused party arrived there singing songs with the beats of CHANG, Complainant party then joined the accused party in singing songs. When objection was raised by the accused party as to why they had joined in singing, quarrel started and then Bharat Singh caught hold of the informant Inder Singh and Mohan Singh gave fist blow. Others also started giving blows, when Mitthu Singh intervened, he was also given beating by fists and legs, thereafter the informant was dragged. At that point of time Jagdish Singh went to his house, came out with 12-bore gun and opened fire at Mitthu Singh that hit on the abdomen of Mitthu Singh. In these circumstances, we find ourselves unable to fasten vicarious criminal liability under Section 149 IPC on Mohan Singh, Prahlad Singh, Samunder Singh, Bhanwar Singh, Guman Singh and Ragho Singh and in our opinion they have been rightly acquitted by the learned trial judge.
APPEAL NO. 198/2001:
16. Mr. N.A. Naqvi, learned Counsel for the accused Bharat Singh and Jagdish Singh took us to Exception 1 to Section 300 IPC, which provides thus:
Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisions:
First that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly- that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
17. A look at the aforequoted provision demonstrates that the doctrine of provocation depends on the fact that it causes, or may cause, sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. It is well settled that before an accused can draw any benefit from Exception 1 to Section 300 IPC, there should be some circumstance to indicate that the act of the accused was done in the same transaction in which he received the grave and sudden provocation. If there is an interval of time then the act of the accused ceases to be a part of the same transaction and it cannot be pleaded by him that it was his spontaneous reaction to the provocation which he had received. Interval of time, is therefore, extremely material. In order to remove culpable homicide from the category of murder, provocation must not merely be grave but also sudden and must have by its gravity and suddenness deprived the accused of the power of self control. In order to invoke the benefit of the exception, circumstances must be established which may lead to the only conclusion that the act of violence was a simultaneous reaction to an act or situation which enured for the purpose of causing grave and sudden provocation.
18. The alternative contention of learned Counsel Mr. Naqvi was that Jagdish Singh and Bharat Singh both sustained lacerated wounds and on account of this grave and sudden provocation, this possibility could not be ruled out that accused Jagdish Singh lost his self control and opened fire. Therefore, Jagdish Singh could not be held guilty under Section 302 IPC. Reliance was placed on Munna v. State of Rajasthan (2003(3) RCC 1113), wherein the Division Bench of this Court observed in para 17 thus:
In the instant case as already noticed by us that on seeing his wife with the deceased on the cot, the appellant might have deprived of self control on account of the sudden provocation given and committed callous act of giving two blows on the head of the deceased with axe. We are thus of the view that the case of the appellant comes under the purview of Exception 1 to Section 300 of the Indian Penal Code. We thus hold the appellant, who has been remanded in custody since October 7, 1994 and remained in jail throughout, guilty under Section 304 Part I of the Indian Penal Code.
19. In Narendra Singh v. State of Rajasthan (19), the Division Bench of this Court in para 10 observed thus:
Had the appellant intended to kill Gajendra Singh he could have shot at him when he came out of the house after hearing the abuse hurled by the appellant. The appellant although had gun with him he decided to go away from the house. It was when the complainant party rushed after him up to railway track the shooting incident occurred probably on account of sudden and grave provocation. The circumstances available on record make it clear that the appellant would not have intentionally shot Gajendra Singh with a view to kill him or even with a view to cause an injury which would be sufficient in the ordinary course of nature to cause death. We find that Exception 1 of Section 300 IPC is attracted in the facts and circumstances of the case.
20. In Jagat Singh v. State of Haryana , their Lordships of Supreme Court in para 4 observed thus:
The circumstances in which the incident had taken place did not, according to the High Court, justify the sentence of death. It seems to us that the circumstances as found by the High Court are not merely a valid ground for commuting the sentence of death to one for imprisonment for life but also bear upon the nature of the offence. In the situation described in the judgment of the High Court it would seem that the appellant brought the gun from his house to protect himself having seen the aggressive posture of the students and then, faced with the fury of the students, he lost nerve and fired from the gun. On the findings of the High Court we hold that the case comes under the first part of Section 304 of the mdian Penal Code and not Section 302.
21. Coming to the facts of the instant case, as already noticed, that according to first information report the complainant party and accused party had altercations, thereafter Bharat Singh caught the color of informant Inder Singh and Mohan Singh gave fist blow on his person. When Mittu Singh intervened, he was also beaten up with fists and legs. At that point of time Jagdish Singh went to his house, came back with 12 bore gun and opened fire at Mitthu Singh, who sustained gunshot injury on his abdomen.
22. From the material on record, we find that the circumstances that the act of Jagdish Singh was done in the same transaction in which he received grave and sudden provocation do not exist. Because of interval of time the act of the accused Jagdish Singh ceases to be a part of the same transaction and it cannot be pleaded by him that it was his spontaneous reaction to the provocation which he had received. The circumstances which existed in the instant case do not lead to the only conclusion that the act of violence on the part of accused Jagdish Singh was a simultaneous reaction to an act or situation which enured for the purpose of causing grave and sudden provocation. The authorities cited on behalf of accused Jagdish Singh are distinguishable and not applicable in the facts of the instant case.
23. That takes us to the allegations made against accused Bharat Singh. Learned trial judge convicted accused Bharat Singh under Section 302/34 and 323 IPC.
24. Section 34 as it originally stood, was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of the section clear. Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.
25. In the instant case evidently the informant Inder Singh did not mention in the FIR that accused Bharat Singh exhorted accused Jagdish Singh to kill Mitthu Singh. While Mitthu Singh was given beating with fists and legs, Jagdish went to his house and came back with 12 bore gun and immediately opened fire. It was not stated in the FIR that it was Bharat Singh who exhorted Jagdish Singh to go to the house to bring gun and kill Mitthu Singh. Inder Singh (PW. 2) in his cross examination admitted this fact that he did not state in the FIR that on the pursuation of Bharat Singh, Jagdish Singh opened fire.
26. It is trite law that Section 34 IPC is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually. Common intention requires a prior consent or a pre-planning. It is intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop at the instant when such crime is committed.
27. Having carefully scanned the material on record we find that the accused Bharat Singh did not share common intention with accused Jagdish Singh. Thus charge under Section 302/34 IPC is not established beyond reasonable doubt against accused Bharat Singh. In view of the fact that free fight took place between the parties and Bharat Singh also sustained injuries charge under Section 323 IPC is also not made out against him.
28. For these reasons, we dispose of instant matters in the following terms:
(i) Revision Petition No. 228/2001 stands dismissed.
(ii) Appeal of Bharat Singh stands allowed and he is acquitted of the charges under Sections 302/34 and 323 IPC Srlaraf Singh is on bail, he need not surrender and his bail bonds stand discharged.
(iii) Conviction and sentence awarded to appellant Jagdish Singh under Section 302 IPC stands confirmed. However, his conviction under Section 323/34 IPC is set aside.
(iv) The impugned judgment of trial Court stands modified as indicated above.