Rajasthan High Court - Jaipur
Jai Singh And Ors. vs State Of Rajasthan on 7 November, 2003
Equivalent citations: RLW2004(4)RAJ2240
JUDGMENT Khem Chand Sharma, J.
1. This criminal appeal under Section 374 Cr.P.C. arises out of the judgment and order dated 21.9.2000 passed by the Additional Sessions Judge, Khetri, district Jhunjhunu, whereby the learned trial Judge convicted and sentenced the accused appellants in the following manner-
Appellant Jai Singh
Under Section 302 IPC Life Imprisonment with a fine of Rs. 2500/-,
in default of payment of fine, to further
undergo simple imprisonment for one
year.
Under Section 307 IPC Imprisonment for seven years with a fine
of Rs. 1000/-, in default of payment of fine,
to further undergo simple imprisonment
for six months.
Appellants Om Prakash and Balbir Singh
Under Section 302/34 IPC Life Imprisonment with a fine of Rs. 2500/-
, in default of payment of fine,
each to further undergo simple
imprisonment for one year.
Under Section 307/34 IPC Imprisonment for seven years with a fine
of Rs. 1000/- in default of payment of fine,
each to further undergo simple
imprisonment for six months.
2. The facts leading to this criminal appeal may be summerised as follows:-
3. On 28.5.96 at 12:35 AM, PW 12 Bajrang Lal, Head Constable recorded Parcha Bayan (Ex.P/14) of injured Ajay Kumar. In his parcha Bayan, injured Ajay Kumar stated that on 27.5.96 there was a meeting in respect of a public well. His father had also attended the meeting. At about 9.30 PM while he and his father were returning and when they reached the passage situated near the house of Subhash, accused Jai Singh. Om Prakash and Balbir came running towards them. Accused Balbir caught hold of him, while accused Om Prakash caught hold of his father and accused Jai Singh who had a knife in his hand, struck knife blow on the neck of his father, as a result thereof his father ell down. Thereafter accused Jai Singh inflicted three knife blow on his chest and stomach. The injured stated that on their raising hue and cry, Sahi Ram, Nihal Singh, Ummed Singh, Hoshiyar Singh and Sardar Singh saved them. Hoshiyar Singh and Sardar Singh removed the injured and his father to the hospital in a Jeep he stated that his father succumbed to the injuries on way to the hospital. Lastly, the injured stated that about 8-10 days prior to the incident, there was some dispute in regard to a dog belonging to subhash and that being the reason, the accused assaulted the informant and his father.
4. On the basis of above Parcha Bayan, the police registered a criminal case vide FIR, Ex.P.24 for office under Sections 302, 307, 341 and 34 IPC and proceeded with the investigation. In the course of investigation, the police rushed to the place of incident and prepared site plan, Ex.P4 and seized controlled soil and blood stained soil from the place of incident vide seizure memos Exs. P5 and P6. The inquest report (Ex.P.1) of the dead body was prepared and the cloths of injured Ajay and deceased Dilip Singh were also seized vide seizure memos Ex.P2 and P3 respectively.
5. The post mortem on the dead body was conducted by PW 10 Dr. Ranveer Singh, who prepared the post mortem report Ex.P.8. On dissection of body the Doctor found following injuries:
"Stab Wound size 8 cm in length x 1 cm wide x 4 cm deep extending from upwards angle of left mandible to mid point between mandible and clavicle on left side of neck along anterior border of sternomastoid muscle common carotid artery and jugular vein cut, both cuts end visible".
6. In the opinion of Dr. Ranveer Singh the cause of death was hemorrhagic shock resulting from cut carotid artery and juguler vein on left side of neck. The injuries were antemortem in nature and were sufficient in the ordinary course of nature to cause death.
7. Injured Ajay Kumar was also medically examined vide injury report Ex.P.9 and following 3 injuries by sharp edged weapon were found on his person:
1. Stab would (incised would 1"x 1/2"x 1/4" right side of chest on 4th intra costal space just above right nipple.
2. Incised would 1" x 1/2"x 1/4" on left side of chest just lateral to xiphi-sternum, and
3. Incised wound 1 x 1/2"x 1/4" on right side of chest on back 3" below angle of right scapula.
8. Accused Om Prakash, Jai Singh and Balbir Singh were arrested vide arrest memos Exs. P7, P17 and P18, respectively. Accused Jai Singh furnished information (Ex.P/19) as regards recovery of a open shirt which had blood stains. Pursuant to this information, police recovered a open shirt vide memo Ex.P.20. Accused Jai Singh also furnished information, EX.P21 as to the recovery of a knife and pursuant to his information, police recovered a knife vide memo Ex.P.22 and also prepared site plan, Ex.P.23 of the place of recovery. The articles recovered and seized were sent to FSL for examination. The FSL report, Ex.P7 indicates the presence of blood stains to be of human origin on the above articles.
9. After completion of entire formalities as to the investigation, the police submitted a charge sheet against the accused appellants in the court of Additional Chief Judicial Magistrate, Khetri, The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case to the court of Sessions.
10. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the accused and the Public Prosecutor, framed charges against the appellants. The appellants denied the charges and claimed trial.
11. In the course of trial, the prosecution, in order to prove its case, examined as many as 16 witnesses and got exhibited some documents. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. In their explanation, the accused appellants pleaded that they have been falsely implicated. However, they did not examine any witness in their defence.
12. At the conclusion of trial, the learned trial Judge found the prosecution case as alleged proved and accordingly, vide its impugned judgment and order convicted and sentenced the appellants in the manner stated hereinabove. Feeling aggrieved by the judgment of conviction, the appellants have preferred the present appeal.
13. We have heard Mr. Sr Bajwa, Sr. Advocate appearing for the appellants, Mr. R. Yadav, Public Prosecutor and Mr. Vishal Bansal appearing for the complainant and have gone through the impugned judgment and the evidence and material available on record.
14. At the very out set it may be stated that appellant Balbir died during pendency of this appeal and his appeal stands abetted vide order dated 15.9.2003 of this Court.
15. The learned trial Judge, on the basis of evidence and material on record concluded that there was sufficient motive behind commission of crime, inasmuch as there was enmity between the complaint's family and the accused in regard to a pet dog of Jai Singh. The complainant and his family members used to complain to accused Jai Singh and his family members regarding the nuisance being created by the pet dog of Jai Singh. Some altercation between the two families had taken place about 8-10 days prior to the incident. Even on the day of incident there was some altercation between the parties in respect of dog of jai Singh attending the call of nature at the roof of complainant. Jai Singh had threatened the members of the complainant side that he will kill them and on that day the present incident happened. Having concluded that there was sufficient cause behind commission of crime, the learned trial Judge relying upon the testimony of eye witnesses Nihal Singh, Hoshiyar Singh, Sahi Ram and Rajbala as being worthy of credence, and supported by the contents of Parchaya Bayan, came to the conclusion that the accused appellant were guilty of causing death of deceased and grevious injuries to Ajay Kumar. In doing so, the learned trial Judge also sought corroboration of the prosecution version with the medical evidence.
16. Before proceeding further, we deem it appropriate to have reappraisal of the evidence of eye witnesses.
17. PW 14 Nihal Singh has deposed that there was a meeting in the village in respect of a public well. The meeting came to be over at 9:30 PM After the meeting was over, all the persons left to their respective house. Master Dilip (since deceased) and his son Ajay Kumar also proceeded towards their house. On way to their house, the accused appellants encircled both the them and asked to kill them. Accused Om Prakash caught hold of Dilip, while accused Balbir caught hold of Ajay and accused Jai Singh struck knife blow on the left side of neck of Dilip. He also struck three blows by knife on Ajay, out of which one blow was struck on the left side of his chest and two blows hit on the right side of his chest. As a consequence of knife blows, Dilip and Ajay fell down. The witness stated that the incident took place in front of the gate of Jai Singh. According to him, he came running on the spot. On being asked as to why the accused were assaulting them, the accused threatened the witness that he will also be killed, if he come forward to their rescue. On hearing hue and cry, wife of Dilip also came at the spot. The injured were removed in a Jeep to Copper Hospital. In cross examination, the witness slated that he reached the spot on hearing cries and when he reached there, only accused persons were present. The witness clarified that he along with Ummed Singh, Sahi Ram and Hoshiyar Singh reached the place of incident. Ummed Singh and Sahi Ram had come running from their respective houses. According to this witness, the wife of deceased Dilip had reached there after the witness had arrived at the place of incident. None other was present. He further stated in cross examination that 10 days prior to the incident some quarrel had taken place between the complainant and the accused in respect of a dog.
18. PW 6 Sahi Ram has stated similar to what PW 5 has deposed. According to him, immediately after the meeting was over, master Dilip and his son were proceeding towards their house. Jai Singh, Om Prakash and Balbir encircled them. On hearing loud voice 'MARLO MARLO', he along with Nihal Singh, Ummed Singh and Hoshiyar Singh went there and Rajbala also came there. He saw in the light of bulb that accused Jai Singh had a knife in his hand. Accused Om Prakash had caught hold of Dilip Master, while Balbir had caught Ajay. Accused Jai Singh inflicted a knife blow on the left side of neck of Masterji. Jai Singh inflicted two knife blows on the right side of chest and one blow on the left side of chest (just below the nipple) of Ajay. After infliction of knife blow, Masterji became unconscious and fell down. Masterji tried to move but again fell down. Ajay also become unconscious. According to the witness, the accused threatened him to kill if he comes forward and therefore, he remained stayed there. The others were raising hue and cry. Hoshiyar Singh then brought a Jeep from manana and removed Masterji and his son to the Copper Hospital in the said jeep. In the morning it was found that Dilip died on the way. Ajay remained hospitalized in Copper Hospital for 4-5 days and thereafter he was referred to Jaipur. According to this witness, some altercation in regard to a dog had taken place about 10 days prior and this incident was an out come of that enmity. In cross examination, the witness has denied the fact that prior to this incident, Rajbala, Nirmla and Anita visited the house of Jai Singh and did any incident.
19. PW 7 Mst. Rajbala, wife of deceased Dilip has deposed that on 27.5.96 there was a meeting in respect of a public well (concerning use of cement of below standard) in the public chowk of the village. Her husband Dilip Singh and her son Ajay Kumar had also gone there. Soon after the meeting was over, they proceeded to their house. Accused Jai Singh, Om Prakash and Balbir came out of the house and encircled Dilip Singh and Ajay in front of the house of Jai Singh. Om Prakash caught hold of her husband and accused jai Singh inflicted a knife blow. Balbir caught hold of his son Ajay Kumar and struck knife blows. The accused persons were crying loudly 'AAJ SALO KO JAAN SE MAR DO'. Immediately after infliction of knife blow, her husband became unconscious and fell down and her son also become unconscious and fell down. Soon after hearing the voice, she came out in the gallary. According to this witness, accused jai Singh, Om Prakash, Balbir and the villagers, namely Nihal Singh, Ummed Singh, Hoshiyar Singh and Sahi Ram had reached the place of incident a minute earlier. She had also reached the place of incident a minute earlier to the happening of incident. She claims that incident took place in her presence. She stated that some altercation in regard to jai Singh's dog had taken place about 10-12 days earlier. She clarified that accused jai Singh had a dog. Her husband asked accused Jai Singh to keep his dog tied. Leaving the dog free was not proper. But accused Jai Singh abused and replied that he will not do so. She stated that on the same day, her younger son Vijay saw the dog of Jai Singh easing at their roof and Vijay threw a stone at the dog. The wife of Jai Singh started abusing her and his son. The witness further stated that her husband tried to make him understand that it would be better to keep the dog tied. Thereupon, Jai Singh told that they will be done to death and that he will get them dismissed from service. In cross examination the witness stated that 12-13 days prior to the present incident, some incident had taken place in the matter of Jai Singh's dog attending the call of nature at the roof of complainant, thereby spreading dirtiness in their house, but no complaint to that effect was made. She denied to have entered the house of Jai Singh on the day of incident and gave beating to his wife. According to her, she was present inside the gate at the time when accused were busy in beating on the way. She had seen Ajay and Dilip from the gate and has come out on hearing he and cry. According to the witness since it was night and therefore, she was waiting for their arrival. She has certified the presence of Nihal Singh, Sahi Ram and Hoshiyar Singh.
20. PW 8 Hoshiyar Singh has stated similar to what PWs 5, 6 and 7 have stated in their examination in chief.
21. PW 9 Ajay Kumar S/o deceased Dilip Singh is the injured eye witness. He has deposed that on 27.5.96 at about 9:30 PM he and his father were returning home after attending the meeting of the village. Soon they reached infront of the house of Subhash, accused Jai Singh, Om Prakash and Balbir came there and caught hold of his father. Jai Singh who had a knife in his hand struck a knife blow on the left side of neck of his father. On their raising an alarm, Nihal Singh came running. According to him, he sustained three injuries by knife, two on his chest and one on back. At the time when accused Jai Singh was assaulting his father, accused Om Prakash and Balbir raised voice to kill both father and son and they will see the later consequences. Hearing hue and cry, witnesses Nihal Singh, Sahi Ram, Ummed Singh and his uncle Hoshiyar Singh came to their rescue. When witnesses asked the accused to spare them, the accused told them that they will meet the same consequence. According to the witness, his mother also came out of the house, he father fell down. Thereafter his uncle left for village Shyampura Manna to bring jeep. His uncle Hoshiyar Singh and Sardar Singh took both the injured to Copper Hospital. His father scummbed to the injuries on way to hospital after covering the distance of 1 Km. He was medically examined by the doctors of Sindhana and Copper Hospital. In cross examination, the witness stated that after she meeting was over, he and his father left for their house. All the three accused persons came out of the house of Jai Singh. Soon after coming out of the house, accused Balbir caught hold of him, while accused Balbir caught hold of his father. Accused Jai Singh first told that he will not leave them alive. The other two accused told that they will see as to what would happen thereafter. After sustaining injury, his father had run two-three steps towards house. According to him, he remained conscious through-out after sustaining injuries and just after assaulting his father, accused Jai Singh ran towards him. He denied the suggestion that his mother Mst. Rajbala and aunt (Mausi) visited the house of Jai Singh and gave beating to his wife. He also denied that his father went to the house of accused Jai Singh armed with a knife and in the course of scuffle his father sustained injuries. However, the witness admitted that accused Om Prakash and Balbir were empty handed.
22. PW 10 Dr. Ranveer Singh was, at the relevant time, posted as Medical Officer at Singhana. He conducted autopsy on the dead body of deceased Dilip Singh between 9:40 to 10:10 AM on 28.5.96. On dissection of body, he found deep cut (stab wound) of the size of 8cm x 1 cm x 4 cm extending from upwards angle of left mandible to mid point between mandible and clavical on left side of neck along anterior border of sterno-mastoid muscle, common carotid artery and jugular vein cut. According to him, both cuts end were visible. He stated that in his opinion, the cause of death was haemorrhagic shock as a result of cutting of left carotid artery and jugular vein. The injuries were antemortem and were sufficient in the ordinary course of nature to cause death. The doctor admitted the post mortem report to be prepared by him and also admitted his signature on it. The doctor stated that on the same day, he examined the injuries of injured Ajay Kumar on the requisition of police and found 3 injuries on his person, one on right of chest on fourth intra costal space just above right nipple, another on left side of chest just lateral to xihpi- steronum and third on left side of chest on back 3" below the angle of right scapula. He stated that all these injuries were caused by sharp edged weapon. The injuries were on vital parts of the body and were sufficient in the ordinary course of nature to cause death. However, he stated that exact opinion can be given only by the surgeon.
23. At the first instance, injured Ajay Kumar was examined and treated by PW 13 Dr. R.P. Chaudhary at KCC Hospital, Khetri. The doctor has deposed that injured Ajay Kumar was admitted in K.C.C. Hospital, Khetri on 27.5.96 at 9.45 PM. He stated that there were three injuries on the person of injured, which were caused by sharp edged weapon and were on the vital organs, according to him the injuries could have caused death, as the injuries were grevious. In cross examination, the witness stated that there was no bleeding at the time when injured came to him. The witness admitted that he did not record his opinion in Ex.P. 8 that injuries were sufficient in the ordinary course of nature to cause death because the Chief Medical Officer had referred the injured.
24. PW 16 Dr. Usha Jaipal, who at the relevant time was posted at Radiologist in S.M.S. Hospital, Jaipur. On the requisition of Medical Jurist, her Radiographer X-rayed the chest of injured Ajay Kumar. She admitted her signatures on X-ray plates Exs. P.28 and 29. She gave her opinion, Ex.P.25 on the basis of X-ray plates. According to her, no bone injury was noticed.
25. As per the prosecution case, the weapon of offence was the knife, with which two persons were assaulted, one scummbed to the injuries and another sustained 3 injures on vital parts of his body. Accused jai Singh was apprehended by the police on 30.5.96 vide arrest memo Ex.P17, He furnished information, Ex.P.21 as regards recovery of knife. Pursuant to his information, the police recovered a knife which had blood stains on its upper part and prepared recovery memo Ex.22. The accused got the knife recovered from his residential house. The recovery was made in the presence of PW 15 Mahipal and Jai Lal witness Mahipal has fully proved the recovery of knife. He admitted his signatures of Ex.P.22 and has stated that accused himself got the knife recovered which was kept concealed in his house. The witness stated that accused Jai Singh took out the knife which was lying concealed beneath a bucket (Balti. He has also admitted his signatures on the site plan (Ex.P.23) of the place of recovery of knife. The recovered knife as also the blood stained clothes of deceased, injured and appellant Jai Singh and control soil and blood smeared soil were sent to the Forensic Science Laboratory. The FSL report Ex.P.27 speaks about the presence of blood of human origion on the clothes of deceased, injured, appellant Jai Singh, knife (weapon of offence) and blood smeared soil collected from the place of incident. However, the blood group on the knife could not be detected.
26. From the evidence discussed above, following facts emerge out:
1. There was previous enmity between the parties and the quarrel has also taken place on the very day of incident;
2. There was exhortation and then accused Balbir and Om Prakash caughty hold of deceased and injured so as to facilitate and promote the execution of their common design.
3. Accused jai Singh, Balbir and Om Prakash way laid the deceased and injured when they were infront of their house. Appellant Jai Singh duly armed with knife came at the place of incident along with accused Balbir and Om Prakash;
4. Accused jai Singh inflicted knife injury on the neck of deceased, which proved fatal. This neck injury, in the opinion of doctor who conducted autopsy, was found to be sufficient in the ordinary cause of nature to cause death;
5. Accused Jai Singh inflicted injuries on the chest and back of injured Ajay, son of the deceased;
6. All the accused went together inside the house of Jai Singh.
27. Thus, from a careful scrutiny of the evidence of eye witnesses, it can safely be concluded that it was accused appellant Jai Singh who inflicted knife blow on the neck of deceased Dilip, who along with his son Ajay was returning home in the night after attending the village meeting. In our considered view the trial court was thus right in holding appellant jai Singh responsible for causing knife blow on the neck of deceased, which ultimately proved fatal.
28. Having concluded that it was accused appellant jai Singh who inflicted one injury on the vital part of the body of deceased which proved fatal, the question which emerges for our consideration is as to what offence, in the facts and circumstances of the case and in the light of the evidence, is made out against him?
29. Learned counsel appearing for the accused vehemently contended that as per the prosecution case, appellant Jai Singh inflicted only one blow. There is no allegation that the repeated the knife blows on the person of deceased. According to him, it cannot be said that appellant had any intention to cause death of the deceased. Therefore, in a case of solitary blow without there being any intention to cause death, the accused cannot be convicted under Section 302 IPC. In this back-ground, learned counsel submitted that conviction of appellant Jai Singh under Section 302 IPC is not sustainable. In the alternative, learned counsel submitted that at the most it can be said to be case of culpable homicide not amounting to murder, thereby bringing the offence under Section 304 Part II IPC.
30. We have considered the above argument. While dealing with a case of single injury, the Hon'ble Supreme Court in Jagrup Singh v. State of Haryana (1), observed that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code; If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
31. The Apex Court again had an opportunity to examine the issue in the case of State of Karnataka v. Vedanayagam (2), and observed that it is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances.
32. The scope of clause Thirdly of Section 300 IPC had been the subject matter of decision of the Apex Court in Virsa Singh v. State of Punjab (3), and on analysing clause thirdly, it was held in the case as under:-
"Firstly, it must establish, quite objectively, that a bodily injury is present, Secondly, the nature of the injury must be proved; these are purely objective investigations, Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
33. As to how the intention is to be inferred even in a case of single injury, it was further held by their Lordships:-
"The question is not whether the prisoner intended to inflict a serious injury of a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here not there. The question, so far as the intention is concerned, is not whether he intended to kill, or it inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion, but whether the intention is there or not is one of the fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question."
34. In the case at hand, undisputely, appellant Jai Singh inflicted only one injury by sharp weapon on the person of deceased. The part of the body selected for causing injury was the neck of deceased. A glance at the post mortem report indicates that there was stab wound of the size 8cm in length x 1 cm wide x 4 cm deep extending from upwards angle of left mandible to mid point between mandible and clavical on left side of neck along anterior border of sternomastoid muscle common carotid artery and jugular vein cut, both cuts end visible. Dr. Ranveer Singh who conducted autopsy on the dead body has categorically deposed that the cause of death was haemorrhagic shock resulting from cut carotid artery and jugular vein on left side of neck and this injury on the neck of deceased was sufficient in the ordinary course of nature to cause death. In view of the nature of injury whereby important carotid artery and jugular veins were cut and when the doctor opined the death was caused due to haemorrhagic shock resulting from cut carotid artery and jugular vein on left side of neck, undoubtedly it can be reasonable inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature. This circumstances would show that appellant Jai Singh intentionally inflicted the injury and the infliction of such injury would indicate such a state of mind of appellant jai Singh that he aimed and inflicted the injury with a deadly weapon. In the absence of evidence or reasonable explanation to show that appellant Jai Singh did not intend to inflict injury by knife on the neck of deceased with that degree of force sufficient to cut the important carotid artery and juguler vein, it would be perverse to conclude that he did not intend to inflict the injury that he did. When once the ingredient "intention" is established then the office would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. In this view of the matter, the inevitable conclusion would be that Appellant Jai Singh committed the offence off murder and not culpable homicide not amounting to murder. The trial Judge was thus right in convicting appellant Jai Singh for offence under Section 302 IPC. We find support from a decision of the Apex Court in Abdul Waheed Khan v. State of A.P. (4. In this case their Lordships of the Supreme Court relying upon a decision of the Apex Court in Virsa Singh v. State of Punjab (supra) and other cases, observed:-
"These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz., that the injury found to be present was the injury that was intended to be inflicted.
Their Lordships then observed:
"Thus according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder, illustration (c) appended to Section 300 clearly brings out this point."
35. We now proceed to decide the question whether conviction of appellant Om Prakash Under Sections 302/34 IPC is sustainable or not? The learned trial court, on appreciation of evidence, came to a conclusion that accused Om Prakash caught hold of deceased Dilip and appellant Jai Singh first inflicted knife injury on the neck of deceased Dilip and ten caused three injuries by knife, two on the chest and one on the back of injured Ajay Kumar. In the course of events the, the accused appellants were crying loudly that "AAJ SALO KO JAAN SE MAR DO". In this way, accused Om Prakash shared a common intention with appellant Jai Singh in respect of ultimate criminal act.
36. Section 34 IPC recognises principle of vicarious liability in criminal jurisdictions. It makes an accused liable for the ultimate criminal act done by several co-accused persons in furtherance of common intention of all of them. In other words, it makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. To attract Section 34 IPC, no overt act is needed on the part of an accused if he shares the common intention with others in respect of ultimate criminal act which may be done by anyone of the accused sharing such intention.
37. In Suresh v. State of UP (5), their Lordships of the Apex Court while considering the scope and applicability of Section 34 IPC made an elaborate discussion in paras 21 to 25 of the judgment, which may be reproduced here below:-
"Obviously Section 34 is not meant to cover a situation which may fall within the fictitiously concocted section caricatured above. In that concocted provision the accused need not do anything because the act done by the principal accused would nail the co-accused also on the ground that such act was done by that single person in furtherance of the common intention of all the several persons. But Section 34 is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act." (para 21) "Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g. the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that the participating accused can inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this: One of such persons, in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations." (para 22) "Thus to attract section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cummulatively resulting nature commission of criminal offence should have been in furtherance of the common intention of all such persons." (para 23) "Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act, this is the purport of Section 32 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall to the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the other for the accomplishment of the crime, section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC." (para 24) "There may be other provisions in the IPC like Section 120B or Section 109 which could them be invoked to catch such non-participating accused. Thus participation in the crimine in furtherance of the common intention is a sine qua non for Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any act." (para 25)
38. Keeping in mind the above settled position as to the scope and applicability of Section 34 IPC, we have to very carefully evaluate the evidence available on record. All the five eye witnesses, namely, PW 4 Nihal Singh, PW 6 Shahi Ram, PW 7 Mst. Rajbala, PW 8 Hoshiyar Singh and PW 9 injured Ajay Kumar have categorically deposed that all the accused appellants came together, encircled the deceased and his son Ajay Kumar. Accused Balbir caught hold of injured Ajay Kumar, while accused Om Prakash caught hold of deceased Dilip. Firstly, appellant Jai Singh struck knife blow on the neck of deceased Dilip while he was in the clutches of Om Prakash, and then he struck three knife blow on the person of Ajay Kumar who was held by accused Balbir. PW 7 Must Rajabala has Reposed that the accused persons were crying loudly "AAJ SALON KO JAAN SE MAR DO". It has also come in the evidence of eye witnesses including the evidence of injured eye witness that the accused threatened them that they would be done to death, in case they come to the rescue of deceased and his son. It is thus clear that accused late Balbir and Om Prakash actively participated in the commission of crime.
39. In some what similar circumstances, their Lordships of the Supreme Court in Lakhan Sao v. State of Bihar (6), have held as under:
"As far as motive is concerned, PW 6 deposed that Parmeshwar was on inimical terms with Lakhan Sao and Baldeo Chauhan, the first because of a land dispute and the second because of a money lending transaction. DW 1 also stated that before this incident, there were differences between Parmeshwar and both the accused. The fact that either may have had his own motive for killing Parmeshwar is not relevant in determining the common object or intention required under Section 34 of the Indian Penal Code. The common intention or object in this case was the killing of Parmeshwar. Lakhan Sao's facilitating the offence by holding Parmeshwar and asking Baldeo Chauhan to shoot is sufficient to hold Lakhan Sao guilty under Section 302 IPC."
40. Reference may also be made to a decision of the Apex Court in Narinder Singh v. State of Punjab (7. In this case, the question before their Lordships was as to who should be held guilty for offence under Section 302 IPC simplicitor and who should be held guilty with the aid of section 34 IPC. The relevant observations of the Apex Court need be quoted below:
"Both the appellants were acting in concert. Their intention to do away with Gurdev Singh, Granthi was manifest when a couple of days before the occurrence they openly threatened him to kill him in case he did not give up the post of Granthi of Gurudwara of Village Talwandi Fattu. This is no argument for the defence that since the Granthi is appointed by the Management Committee of the Gurudwara, appointment of the appellant Narinder Singh as Granthi of the Gurudwara would not have been automatic and, therefore, there was no occasion to hold a threat to gurdev Singh. It was then submitted that it was dangerous to return the finding of guilt merely on the sole statement of one witness. Hardeep Singh in the present case. It is contended that the conduct of Hardeep Singh was not natural, he took to his heels when his father was being assaulted and he made no efforts to protect his father which was natural for a son. But then Hardeep Singh has stated him and to protect himself, he ran from the spot. The statement of Hardeep Singh is cogent and reliable, he gets corroboration from Bikar Singh (PW 3), both Hardeep Singh (PW2) and Bikar Singh (PW 3) are natural witnesses. The statement of Narinder Singh Sarpanch (PW 4) has been disbelieved to the extent that any extra-judicial confession was made to him by the appellants and in our opinion, rightly so. That, however, does not in any way deviate from the evidence on record which is cogent clearly pointing to the murder of Gurdev Singh by the appellants with a common intention. It has to be held that narinder Singh appellant grabbed Gurdev Singh by him arms and the second appellant stabbed him. When appellant Narinder Singh grabbed Gurdev Singh, he said in so many words that Gurdev Singh would now be taught a lesson as he did not resign as Granthi of the Gurudwara of Village Talwandi Fattu, it is not disputed that Amritdhari Sikhs always carry Kirpans on their bodies and in that view of the matter, is not necessary for the appellants to carry any other arm or weapon. The kirpan (Exh.Pl) was used to commit the murder. The trial court totally went wrong when it said that the recovery of the kirpan from the second appellant was of no consequence and was not sufficient to connect the appellants with the crime. Both the appellant committed the murder of Gurdev Singh, Granthi in furtherance of their common intention. It was submitted by Mr. Gupta that Narinder Singh could not have been convicted with the aid of Section 34 IPC as this section is nowhere mentioned in the impugned judgment. Mention of the section in the judgment is not the requirement of law to convict a person. If the ingredients of the offence are present, conviction can be made. It is not material to bring the case under Section 34 IPC as to who, in fact, inflicted the fatal blow. The High Court has rightly interfered in the matter and sentenced the appellants accordingly."
41. Learned counsel for the appellants has strenuously argued that the mere fact that appellant Om Prakash caught hold of the deceased and injured is not sufficient to hold him guilty under Section 302 with the aid of Section 34 IPC. It was argued that the prosecution has not been able to establish beyond doubt that all the accused acted in concert or that there was pre-arranged plan. The circumstances put forth and the evidence relied upon are not sufficient to prove that there was prior concert of meeting of minds. In support of his argument, learned counsel has relied upon a decision of the Apex Court in Ramashish Yadav and Others v. State of Bihar (8), wherein their Lordships have held as under:-
"Coming to the question of applicability of section 34 for the murder of Tapeshwar, we find from the evidence of the there eye witnesses that while Ram Pravesh Yadav and Ramanand Yadav caught hold of Tapeshwar, accused Samunder Yadav and Sheo Layak Yadav came with Gandasa and gave blows on the head of Tapeshwar, as a result of which Tapeshwar died. Section 34 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. The distinct feature of Section 23 is the element of participation in action. The common intention implies acting in concert, existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a prearranged plan and presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert. This being the requirement of law for applicability of requirement of law for applicability of Section 34 IPC, from the mere fact that accused Ram Pravesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, where after Samunder Yadav and Sheo Layak Yadav came with gandasa in their hands and gave blows by means of gandasa, it cannot be said that accused Ram Pravesh Yadav and Ramanand Yadav shared the common intention with accused Samundar Yadav and Sheo Layak Yadav.
42. We have given our thoughtful consideration to the above argument and have carefully gone through the case law cited at the bar. In our considered view the case of Ramashish Yadav (supra) has no application to the facts and circumstances to the present case. In the above cited case the two accused caught hold the deceased and the other two came later with gandasa in their hands and gave blows by means of gandasa. However, in the case at hand, the prosecution has proved beyond doubt that there was sufficient motive to commit the offence, inasmuch as accused jai Singh had threatened the deceased and his family members that they will be done to death, at the time when Dilip went to accused Jai Singh so as to make him understand that he should keep his dog tied as his dog used to attend the call of nature at the roof of his roof, thereby spreading dirtiness in his house. From the evidence on record coupled with the parcha Bayan of injured Ajay Kumar, it can well be presumed that all the accused persons knew that deceased and his son had gone to attend village meeting and at the three were waiting for their arrival while sitting in the house of accused Jai Singh. Soon they reached near the house of accused Jai Singh, all the accused persons Came together and encircled the deceased and his son. In these circumstances, prior concert or meeting of minds may be determined from the above conduct of the offenders unfolding itself during the course of action. The accused exhorted and made declaration 'AAJ SALO KO JAAN SE MAR DO' just before mounting the attack. In this view of the matter the fact that accused Om Prakash caught hold of deceased has nexus with the offence. The act done by appellant Om Prakash is sufficient fasten him with the liability on the strength of Section 34 IPC as both the appellants committed the murder of Dilip in furtherance of their common intention.
43. Learned counsel for the appellants, relying upon a decision of Supreme Court in Periasami and Anr. v. State of Tamil Nadu (9), contended that the deceased was the aggressor in the incident and hence the appellants had the initial right of private defence, though the accused would have exceeded that right.
44. Their Lordships of the Apex Court in the above cited case considered the evidence of witnesses and found that the witnesses could not state as to how the occurrence started and therefore concluded that the possibility that before the witnesses reached the place of incident some events would have already taken place, cannot be ruled out. We deem it appropriate to quote the conclusion drawn by their Lordships of the Supreme Court:
"Keeping the above legal position in mind, we scrutinised the evidence to ascertain whether the deceased could have been the aggressor. Neither PW 1 nor PW 2 could say how the occurrence started. The possibility that before they reached the place, some events would have already taken place cannot be ruled out. PW 1 and PW 2 overheard the squeal of a pig. They also overheard he sound of a quarrel. When they reached the scene they saw the carcass of a slain pig lying nearby. The motive suggested by the prosecution was sufficient for the deceased as well to entertain animus towards the second appellant. Further, both sides would have confronted with each other on that morning abruptly without prior knowledge or inkling that the deceased might go to the plantain grove at the crucial time for answering the call of nature.
The above circumstances are broad enough to instill reasonable doubt in our mind that the accused would have picked up a quarrel with the second appellant and then the other events had followed. Law entitles the appellants to have benefit of that reasonable doubt concerning the begining part of the occurrence and renders them liable for culpable homicide not amounting to murder."
45. In the case at hand, the position is quite clear. The injured eye witness, PW 9 Ajay Kumar and others have stated in specific terms that when deceased and injured were coming to their house after attending the village meeting, the accused appellants way laid them infront of their house and inflicted injuries to deceased Dilip and his son Ajay Kumar. Therefore, the above cited case is of no help to the accused and the argument that deceased and his son were the aggressors has no legs to stand.
46. As regards conviction of appellant Jai Singh under Section 307 IPC and that of accused Om Prakash under Section 307/34 IPC, suffice it to observe that conviction of the appellants under these sections is not sustainable. The injuries described in the injury report, Ex.P.9 by PW 10 Dr. Ranver Singh are on vital parts of the body of injured Ajay. The doctor has deposed that opinion about the nature of injuries can be expressed only after perusing they X-ray plates Exs. P28 and 29 stated that she did not notice any bone injury. PW 13 Dr. R.P. Chaudhary who prepared the injury report, Ex.P.8 of Ajay Kumar has stated in his statement that the injuries being grevious and on vital parts of the body were likely/sufficient to cause death. But no such opinion was expressed by him in Ex.P8. However, it appears from the record that Surgeon was not examined to prove the operation note Ex.P26. Therefore, there appears to be no evidence to conclude that injuries sustained by Ajay Kumar were either grevious or sufficient to cause death. In these circumstances the conviction of appellant Jai Singh under Section 307 IPC and that of appellant Om Prakash under Section 307/34 IPC is not sustainable. Instead, appellant Jai Singh should be convicted under Section 324 IPC and appellant Om Prakash should be convicted under Section 324/34 IPC.
47. In the result, the conviction of appellant Jai Singh under Section 302 IPC and that of appellant Om Prakash under Section 302/34 IPC and the sentences awarded to them thereunder are confirmed. The conviction of appellant Jai Singh under Section 307 IPC and that of appellant Om Prakash under Section 307/34 IPC is set- aside. Instead, appellant Jai Singh is convicted under Section 324 IPC and appellant Om Prakash is convicted under Section 324/34 IPC and each of them is sentenced to undergo imprisonment for two years. Appellant Jai Singh is already in jail. Appellant Om Prakash is on bail. His bail bonds stand cancelled he should surrender himself before the trial court. In case of failure on his part to surrender himself, the trial court shall take all necessary steps to ensure his arrest and to send him to jail so as to serve out the sentences awarded.
48. The substantive sentences shall run concurrently.