Punjab-Haryana High Court
Didara And Others vs State Of Haryana on 12 March, 2013
Author: Ritu Bahri
Bench: Hemant Gupta, Ritu Bahri
Crl. A. No. 480-DB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRA No.480-DB of 2003 (O&M)
Date of decision: March 12, 2013
Didara and others ...Appellants
versus
State of Haryana ...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. A.S. Virk, Advocate, for the appellants.
Ms. Mamta Singhal Talwar, AAG, Haryana,
for the respondent-State.
RITU BAHRI, J.
This is a criminal appeal against the judgment of conviction dated 30.04.2003 rendered by the learned Additional Sessions Judge (I), Kaithal, vide which all the accused namely Suresh Kumar, Rajbir, Randhir Singh, Rishi Pal, Jai Parkash and Om Parkash were convicted for the offences punishable under Sections 302/307/323/148 read with Section 149 IPC. However, two accused namely Jai Parkash and Om Parkash were also convicted under Sections 25/27 of the Arms Act. All the accused were sentenced to undergo rigorous imprisonment for varying terms, vide order of sentence dated 02.05.2003. All the sentences were ordered to run concurrently.
The prosecution agency was set into motion on the statement (Ex.PB) made by Birbal S/o Ram Dhari-deceased to SI Badri Parshad recorded in the hospital. In pursuance of such statement, F.I.R No.171 dated 21.03.1998 was registered at Police Station Sadar Kaithal for the Crl. A. No. 480-DB of 2003 -2- offences punishable under Sections 148/302/307/323/149 IPC and Sections 25/27 of the Arms Act. In his statement (Ex.PB), Birbal stated that the marriage of the daughter of Nafe Singh, his uncle was being celebrated in the village Saran on 20.03.1998. The accused Rishi Pal s/o Didara was also present in the marriage party. He started giving abuses and uttering filthy words towards the girls present at the time of marriage ceremony. He along with Ram Dhari, Sher Singh, Amar Singh (husband of father's sister), his younger brother Ramesh objected to this behaviour of Rishi Pal-accused. Rishi Pal-accused lost temper and hot words were exchanged between both the parties. Some villagers intervened and the matter was pacified. On 21.03.1998 at about 2.30/3.00 P.M, he and other members of the family were attending to guests. The children belonging to their family were playing near the window of the houses of accused Didara and one Sardara. Thereafter, the wife of Subhash s/o Sardara started giving abuses to children as well as to other members of the family. He along with other close relatives i.e Ram Dhari, Sher Singh, Amar Singh, Ramesh and Mohan Lal went in front of the house of Didara accused. After reaching, they observed that all the seven accused were standing on the roof of the house of Didara- accused. Accused Om Parkash and Jai Parkash, who are sons of Didara were armed with one gun each. On seeing this, he and other family members folded hands before all the seven accused that the children had committed mistake by playing there and they be pardoned. However, Rajbir-accused started throwing brick bats towards them. Two brick bats hit him, one on his fore-head and another on his cheek. At this, accused Didara gave lalkara that they would taught us a lesson for insulting Rishi Pal-accused, on the Crl. A. No. 480-DB of 2003 -3- previous day. The accused Om Parkash thereafter fired 3-4 shots from his gun, which hit his father Ram Dhari on his face and chest. Jai Parkash- accused also fired 2-3 shots from his gun and the same hit on the face, neck and chest of his cousin Mohan Lal. Mohan Lal went inside the house by running to save himself. Accused Rishi Pal, Randhir and Suresh also threw brick bats towards them which hit Ramesh and Sher Singh. Birbal further stated that his father ran up to some distance to save himself, however, he fell on the ground. In the meantime, other villagers collected there and the accused ran away with the weapons. Ram Dhari succumbed to his injuries at the spot. He further stated that after leaving Sher Singh and Baldev Singh near the dead body of his father, he and Mohan were removed to General General Hospital, Kaithal by Pala Ram, where they were medico legally examined.
Thereafter, on the directions of S.P.Kaithal, Inspector Sant Ram, SHO Police Station City, Kaithal visited the spot and after conducting necessary investigation, he prepared the inquest report under Section 174 Cr.P.C on the dead body of Ram Dhari. It was on 25.03.1998, the investigation of this case was handed over to Inspector Kirat Pal Singh. He arrested all the accused on 26.03.1998. On interrogation, accused Om Parkash made a disclosure statement that he had kept concealed a DBBL gun of .12 bore along with 13 live cartridges in his residential house. In pursuance of such disclosure statement (Ex.PF), accused Om Parkash got recovered the gun and cartridges. These were converted into sealed parcels and taken into possession vide recovery memo Ex.PH. On 28.03.1998, accused Jai Parkash has also made disclosure statement (Ex.PC) with regard Crl. A. No. 480-DB of 2003 -4- to the concealment of gun and thereafter, in pursuance of such statement, he got recovered the same form the disclosed place, which was taken into possession vide recovery memo Ex.PE. Rough site of the place of recovery was also prepared. Statement of the witnesses under Section 161 Cr.P.C were recorded.
Challan was presented in the Court of Illaqa Magistrate. Copies of the challan were supplied to the accused under Section 207 Cr.P.C and the case was committed to the Court of Sessions Judge vide order dated 04.06.1998. Vide order dated 21.03.1998, charges were framed against all the accused. During the course of trial on 31.08.2002, a confirmation was received from the concerned police station that accused Didara has expired on 31.08.2002 and the proceedings against him stood abated.
To prove its case, apart from proving certain documents, the prosecution examined as many as 16 witnesses. However, in their statements recorded under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against them in the prosecution evidence and examined 5 witnesses in their defence.
The trial Court after going through the entire evidence led by the parties, convicted and sentenced the aforesaid accused-appellants, as mentioned above.
Before this Court, Mr. Virk learned counsel for the appellants has argued that on 21.03.1998 the incident had taken place which had the background to a scuffle which took place between Birbal's family and accused Rishi Pal, who uttered filthy words towards the girls present at the time of marriage ceremony. Birbal, author of FIR and his family members Crl. A. No. 480-DB of 2003 -5- objected to his behaviour. However, with the intervention of the villagers, the matter was sorted out between the parties. This incident was not sufficient enough for the accused to cause death of Ram Dhari and inflict injuries upon the other family members of Birbal. There was no occasion with the accused to teach a lesson to Birbal and his family members on 21.03.1998, when wife of Subhash allegedly got annoyed with the children playing on the street. The allegation that Didara had raised lalkara to kill the deceased-Ram Dhari, is the version of the interested witnesses.
It is argued that as per the prosecution story, Birbal and his family members marched towards the house of accused, who were alleged to be on the roof top of their residential house. Since Birbal and others marched towards the house of the accused, there was no meeting of mind or common intention to assault Birbal and others. It is argued that the provocation came from Birbal & others, when they marched towards the house of the accused and such sudden provocation does not warrant invocation either of Section 149 or Section 34 IPC.
On the other hand, learned State counsel submitted that the order of conviction of the trial Court is liable to be upheld as all the accused were on the roof top and accused Om Parkash and Jai Parkash were armed with guns without there being any provocation or aggression by the Birbal's family who were standing down 20-25 feet. He further submitted that Didara raised lalkara and accused Jai Parkash and Om Parkash fired 2-3 gun shots, which hit the deceased and Mohan Lal. As per the ocular version along with medical opinion given by P.W.5, it is proved that in the incident Mohan Lal had suffered gun shots. Mohan Lal was unarmed at the time of Crl. A. No. 480-DB of 2003 -6- the incident. 13 injuries were found on him as well as pellets were recovered from his body (Ex.PN/1). As per the medical report (ExPJ), three injuries were found on the person of the injured as depicted in the MLR and all the injuries were kept under observation, which were caused by blunt weapon within the duration of six hours. Another member of Birbal's family namely Ramesh Kumar also suffered injuries and he was medico legally examined and it has been opined that injuries could be a result of brick bat. Without there being any provocation or aggression by the victims, all the accused with a common object had collected on the roof top and thereafter opened fire, which resulted in to the death of Ram Dhari. The cause of death was due to shock and hemorrhage and injuries to the vital organs due to fire arm injuries which were anti mortem in nature and sufficient to cause death in the ordinary course of nature.
Heard learned counsel for the parties.
Before we examine the role of each of the accused, Section 149 of IPC contemplates that if an offence is committed by any member of an unlawful assembly i.e. five or more persons in prosecution of the common object of that assembly, then each member of the same assembly, is guilty of that offence. Whereas, Section 34 of IPC provides when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Sections 34 and 149 of the IPC read as under:
"34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
"149. Every member of unlawful assembly guilty of offence committed in Crl. A. No. 480-DB of 2003 -7- prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly, is guilty of that offence."
The prosecution case is that on 20.03.1998 during the marriage of daughter of Nafe Singh, accused Rishi Pal had used filthy words towards the girls present at the time of marriage. Birbal and his family members objected to the behaviour of the accused. However, with the intervention of the villagers, the matter was sorted out between the parties. It seems that the heart burning of 20.03.1998 continued and on 21.03.1998 when the children from the Birbal's family were playing in the street, wife of Subhash got annoyed and started abusing them. Subhash was present in the house of Didara-accused at that time. Birbal along with his family members had gone to the house of Didara-accused where Didara along with other accused were present on the roof top and Didara raised a lalkara on seeing the victims to teach a lesson for insulting Rishi Pal-accused on 20.03.1998. Thereafter, the gun shots were fired by accused Jai Parkash and Om Parkash and brick bats were thrown by the other accused. The above incident does not make out a case that all the accused had an intention to take life of Ram Dhari to avenge the insult given to Rishi Pal-accused on 20.03.1998.
Birbal and others have marched towards the house of the accused. Such group consisted of more than five persons. Therefore, it is for the accused to be alarmed and protect themselves. But still, the accused could not cause more harm then necessary to protect their life and property. There could not be any meeting of minds in view of the sudden action of the Crl. A. No. 480-DB of 2003 -8- Birbal and others of marching towards the house of the accused. The gun shots were fired from a distance of 20-25 feet from the roof top by the accused Jai Parkash and Om Parkash without any pre-meditation and with intention to cause death.
The essential ingredients of Section 149 IPC are that a member of an unlawful assembly should have a common object and had the knowledge of an offence which was likely to be committed. The background of the events which took place on 20.03.1998 and 21.03.1998 did not create a situation where all the accused had a common object to commit the murder of Ram Dhari by opening fire. As per Birbal-author of FIR, accused Didara gave lalkara that they would taught us a lesson for insulting Rishi Pal- accused, on the previous day. The fact remains that the accused were in their house, whereas Birbal & others have marched towards the home of the accused. There was lack of premeditation and intention to cause death.
As far as Section 34 IPC is concerned, the liability under Section 34 IPC can arise when two conditions are fulfilled i.e. the mental element or the intention to commit the criminal Act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
Hon'ble the Supreme Court in a case of Virendra Singh vs. State of Madhya Pradesh, (2010) 8 SCC 407 has discussed the applicability of Section 34 IPC in para Nos. 45, 46 and 47 which reads as under:-
"45. The dominant feature of section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
46. The essence of section 34 IPC is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a Crl. A. No. 480-DB of 2003 -9- particular result. Russel in his celebrated book "Russel on Crime" 12th Edn. Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step, intentionally taken for the purpose of effecting that felony. It was observed by Russel that any act of preparation for the commission of felony is done in furtherance of the act.
47. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a pre-arranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
Hon'ble the Supreme Court in another case reported as Jagan Shravan Patil and another vs. State of Maharashtra, (2009) 11 SCC 517 has observed in paragraph 6 as under:-
"6. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, Crl. A. No. 480-DB of 2003 -10- whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
In the light of the principles of law discussed above and keeping in view the fact that Birbal and others, as per the prosecution version itself, were going to the house of the accused. It was sudden event at the instance of Birbal and others and, therefore, there was no meeting of mind to commit the offence by the accused, who were in their house. The prosecution has not proved by leading evidence that all the seven accused had a plan or meeting of mind to commit the offence when they had gone to the roof top. Thus, the essential ingredients of Section 34 IPC are also not made out.
The prosecution has relied upon the eye witness account deposed by PW- 2 Birbal and PW-3 Mohan Lal. Mohan Lal in his statement said as under:-
"However, Rajbir accused started throwing brick bats towards us. However, three of the brick bats hit Birbal-complainant son of my Tau. However, accused Dildara gave a lalkara that we should be taught a lesson for insulting Rishi Pal, the previous day. After that Om Parkash accused fired 3-4 gun shots towards us which hit my tau Ram Dhari. My Tau Ram Dhari ran for safety. Thereafter Jai Parkash accused also fired 2-3 gun shots which hit me on my cheek, neck and chest. It also ran for safety and went inside my Crl. A. No. 480-DB of 2003 -11- house."
PW-2 Birbal while appearing in the witness box has also deposed to the same effect. Specific role has been attributed to Om Parkash that he had fired 3-4 gun shots towards Birbal & others, which hit Ram Dhari. Ram Dhari ran for safety. Thereafter, accused-Jai Parkash fired 2-3 gun shots which hit Mohan Lal on his cheek, neck and chest. Mohan Lal is very categoric about the fire arm injuries inflicted upon Ram Dhari-deceased by Om Parkash. This fact has not been disputed by the defence in cross- examination. The fire arm injury to Mohan Lal was by accused-Jai Parkash which hit him on his cheek, neck and chest. This fact is corroborated by the medical evidence given by P.W.5 Dr. B.B. Kakkar, Medical Officer, Civil Hospital, Kaithal, who had medico legally examined Mohan Lal and as per his opinion Ex. PN/1 there were pellets found in his body. Thus, it could be concluded that due to the gun shots fired by Om Parkash, Ram Dhari had died. P.W.7 Dr. D.C. Thukral, who has conducted the post mortem examination on the dead body of Ram Dhari on 22.03.1998, has opined that cause of death was due to shock and hemorrhage and injuries to the vital organs due to fire arm injuries which were anti mortem in nature and sufficient to cause death in the ordinary course of nature.
More so, in his statement recorded under Section 313 Cr.P.C., Didara Singh (since deceased) gave a lengthy explanation pointing out that on 21.03.1998 at about 3.30 PM, Ram Dhari and others came in front of his house and raised lalkara that he would be taught a lesson. All of a sudden, they started throwing brick bats upon him. He entered his baithak and bolted the door from inside. On hearing the commotion created by Birbal & Crl. A. No. 480-DB of 2003 -12- others, Randhir and Suresh also reached his court-yard from the back side, while passing through the roofs of the intervening houses. Ram Dhari, Mohan Lal and many others climbed upon the wall of his house including outer gate and had been throwing brick bats on his family members. Sensing trouble to the life of his family members, he went inside his house from the back door and had brought his licensed gun alongwith the cartridges. Guessing immense danger to their life, he fired 2-3 shots in the air to control the activities of Ram Dhari etc., but upon this they laughed and proclaimed that the gun was not a real gun. He received injuries on his face and head from the brick bats hurled by Ram Dhari etc. Nirmla wife of Jai Parkash, Santro wife of Om Parkash and his wife also suffered injuries from the brick bats. Finding no way out, he fired 2-3 shots from his gun towards Ram Dhari and Mohan Lal etc. Ram Dhari and Mohan Lal fell down in the gali on receipt of injuries. He also stated that after few days, Nirmla succumbed to injuries at the hands of Ram Dhari etc. Om Parkash in his statement recorded under Section 313 Cr.P.C., denied his presence and stated that gun has been planted on him. The other accused also denied the prosecution allegations.
But the fact remains that PW-2 Birbal and PW-3 Mohan Lal, injured have graphically deposed about the 3/4 gun shots fired by Om Parkash and 2/3 gun shots fired by Jai Parkash. The gun shots fired by Om Parkash, hit Ram Dhari, which led to his death, whereas gun shots fired by Jai Parkash, hit Mohan Lal on his cheek, neck and chest. The injuries suffered by PW-3 Mohan Lal and deceased Ram Dhari are corroborated by medical evidence of PW-5 Dr.B.B.Kakkar and PW-7 Dr.D.C.Thukral. Crl. A. No. 480-DB of 2003 -13- Since the gun shots fired by Om Parkash has taken life of Ram Dhari, therefore, there is no reason to take a different view than what has been taken by the learned trial Court to convict Om Parkash for an offence punishable under Section 302 IPC.
On the other hand, gun shots fired by Jai Parkash have not taken life of any person, but have hit Mohan Lal. Therefore, his conviction for an offence punishable under Section 302 IPC is not sustainable and consequently, he is convicted for an offence punishable under Section 307 IPC.
Further, as per Section 39 of the Arms Act, no previous sanction was sought to prosecute the appellants Jai Parkash and Om Parkash under Section 25 of the Arms Act from the District Magistrate, therefore the conviction under Section 25 of the Arms Act is liable to be set aside.
Didara-accused died on 31.08.2002 during the pendency of the trial and the proceedings against him stood abated. The role attributed to the other co-accused namely Suresh Kumar, Rajbir, Randhir Singh, Rishi Pal is that they were throwing brick bats on the victims in the company of accused Jai Parkash and Om Parkash, who had fired gun shots. In the facts of the present case, though a dispute arose on account of uttering a filthy jokes by Rishi Pal-accused on 20.03.1998 in the marriage ceremony, but the fact remains that on 21.03.1998 when the victims had gone to the house of the accused to seek their pardon, all the accused had gone on to the roof top. The role attributed to them is that they were throwing brick bats on the victims in the company of accused Jai Parkash and Om Parkash who had fired gun shots on Birbal & others.
Crl. A. No. 480-DB of 2003 -14-
The accused, while standing on the roof top, though can be said to have an intention to avenge the insult inflicted upon Rishi Pal -accused on 20.03.1998 and had thrown brick bats but the common intention to inflict injuries which resulted in to the death of Ram Dhari, is entirely untenable.
In view of the above discussion, we partly accept this appeal. Resultantly, the appellant Om Parkash is convicted under Section 302 IPC and is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine to further undergo imprisonment for two months. Appellant Jai Parkash is convicted under Section 307 IPC and is sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/-. In default of payment of fine to further undergo imprisonment for one month. Appellants Suresh Kumar, Rajbir, Randhir Singh and Rishi Pal are convicted for an offence punishable under Section 323 IPC and are sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- each. In default of payment of fine to further undergo imprisonment for one month each.
With the above modification in the judgment of conviction and order of sentence, the present appeal stands disposed of.
(HEMANT GUPTA) ( RITU BAHRI )
JUDGE JUDGE
March 12, 2013
G.Arora/Vimal