Rajasthan High Court - Jaipur
Jogender Singh And Daljeet Singh vs State Of Rajasthan on 7 February, 1989
Equivalent citations: 1990(1)WLN406
JUDGMENT S.S. Byas, J.
1. Jogendra Singh and Daljeet Singh, appellants before us, are real brothers inter-se. They were convicted Under Sections 302/34 326 and 323/34 IPC and eath was sentenced to imprisonment for life with a fine of Rs. 500/-, in default of payment of fine, to further undergo one year's rigorous imprisonment on the first count and rigorous imprisonment for one year with a fine of Rs. 100/-, in default of payment of fine to further undergo one month's like imprisonment under the second count and one month's rigorous imprisonment under the third count by the Additional Sessions Judge by his judgment dated December 20, 1985.
2. Briefly stated the prosecution case is, that the appellants are the residents of village Badi, Police Station Khairthal, district Alwar. The deceased-victim was also a resident of the same village. PW 1 Vishambbar Dayal, PW 5 Om Prakash, PW 7 Naresh Kumar, PW 8 Sumar, PW 11 Suman Devi, PW13 Rajeshkumar, PW14 Phoolkaur and PW 15 Dhankaur are his close relatives. In the morning on 25-4-1984, Om Prakash and his brother Rajesh went to their well for preparing the bricks. The two appellants accompanied with their brothers Amarjeet Singh alias Amru and Birendra Singh alias Biru came there They destroyed the bricks and asked Om Prakash not to prepare the bricks any more. Om Prakash and Rajesh retreated to their house. At about 4 or 4.30 P.M. on the same day, Om Prakash, Rajesh and others again went to prepare the clay bricks. While they were preparing the bricks, the two appellants accompanied with Amru and Biru came there. Accused Amru had a Ballam, Dolu also had a Ballan, Jogender Singh had a Farshi and Biru had a lathi. They opened an onslaught on Rajesh and others. They raised cries. Hearing their cries, Vishambhar, Shiv Lal Naresh Kumar, Sumar, Suman Devi, Phool Kaur and Dhan Kaur who were working nearby in the filed, came rushing there Amarjeet Singh alias Amru thrust the Ballam in the abdomen of Shivlal. Shivlal fell down. Suman, Dhan Kaur and others fried to intervene and they too were not spared by the appellants and their brothers Anru and Biru. Acoused Daijeet Singh struck a blow of his Ballam to Vishambhar Dayal, Shivlal on account of the injuries caused in his abdomen, fell down and became unconscions. The appellants and their brothers thereafter ran away. There was profused bleeding from the wound of Shivlal. Vishambhar Dayal also became unconscious. They were taken in a bullock-cart for treatment to Alwar Shivlal how ever did not survive and breathed his last while in the way to Alwar. Vishambhar Dayal was admitted in the General Hospital, Alwar for treatment. The Hospital authorities informed the Officer-in charge Police, Kotwali, Alwar that a dead body was received in the Hospital and an injured was admitted for treatment. The Station House Officer deputed PW 19 Chiranjilal, ASI to proceed to the General Hospital and record the statement of Vishambhar Dayal. PW 18 Chiranjilal went to the General Hospital, Alwar and recorded the statement Ex. P 1 of Vishambhar Dayal at about 1.30 a.m. on 26-4-1984. At about 8.00 a.m. Chiranjilal prepared the Inquest Report of the dead body of Shivlal. Since the offence was committed within the territorial jurisdiction of Police Station, Khairthal, the report Ex. P/1 and the Inquest Report of the victim's dead body were sent to Police Station, Khairthal. The Police, Khairthal registered a case and proceeded with the investigation. The Investigating Officer Mahesh Chandra (PW 20) visited the spot and prepared the site plan. He seized and sealed the blood stained soil found there. The post-mortem examination of the victim's dead body was conducted at about 10.30 a.m. by the Medical Jurist Dr. Mishra (PW 21). The doctor found the following injuries on the victim's dead body.
External Injuries:
(1) Incised wound epigastric region 4" long with stomach and omtntom lying out side; (2) Incised wound left side abdomon and in the middle cavity deep 2 inch long; (3) Incised wound on left kg 2 inch bone deep 3 inch below knee joint; (4) One inch long incised wound 3 inch below to injury No. 3 on the left leg.
Internal Injuries:
(1) Incised wound 2 inch long on stomach would material was present out side the stomach; (2) Small incised wound about 1 inch long to in number on small insestine. (3) Incised wound 3 inch long lever and congested.
3. The injuries were ante-mortem caused by sharp edged weapons. In the opinion of Dr. Mishra, the cause of death of the victim was injuries to vital organ, liver, stomach and small intestine. The post mortem examination report prepared by him is Ex. P. 30. The injuries of the other injured persons, viz., Phool Kaur, Om Prakash, Vishambhar Dayal, Suman, another Suman and Naresh were examined by PW 9 Dr. Gupta, the then Medical officer-in-charge, Government dispensary, Khairthal. The X-ray examination was also conducted. All these persons received injuries. Some of the injuries of Vishambhar Dayal and Om Prakash were found to be grevious. The injury reports are Ex. P. 7. to Ex. P. 11. The appellants were arrested. Accused Birendrasingh alias Biru was found below 16 years in age during investigation. Accused Amarjeet Singh alias Amru was in the active service and he was, therefore, not spared by the Army. On the completion of investigation, the Police submitted a crime report against the appellants in the court of Judicial Magistrate, Kishangarhbas. The case against Birendra Singh was referred to the Children's court. Learned Magistrate committed the case for trial to the court of Sessions. Learned Sessions Judge framed charge Under Sections 302, 323, 326 and 324 read with Section 34, IPC against both the appellants, to which they pleaded not guilty and faced the trial. Accused Jogendra Singh pleaded alibi and denied that he was present on the place of incident when it took place. Accused Daljeet Singh put a counter version of the incident. According to him, the relations between the complainant and the accused party were not cordial on account of some litigation between them. On the date of incident when he was returning to his house, he found Om Prakash, Rajesh and Shivlal and others digging his filed Khasra No. 392. He forbade them to do so. Thereupon, deceased Shivlal and others made an assault on him. He received injuries. He snatched away the Zelly from Naresh and swirled at around. He did so to ward of further aggrasion and to protect himself from being further beaten In support of its cace, the prosecution examined 21 witnesses and filed some documents. In defence, the accused examined 2 witnesses, namely, Dr. Major N. Roy Chaudhary (PW I) and R. Pandian, Admn Officer Commanding (PW 2) On the conclusion of trial, the learned Judge found no substance in the defence version. He held the charges duly proved against both the appellants. The appellants were consequently, convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction, the accused have taken this joint appeal.
4. We have heard Mr. N.I. Tibrewal, learned Counsel for the appellants and Mr. Ashok Parihar, learned Public Prosecutor. We have also gone through the case file carefully.
5. Mr. Tibrewal did not challenge the medical evidence relating to the cause of death of deceased victim Shivlal or the number and nature of the injuries found on the other injured-victims We need not therefore, touch the medical evidence in details. Suffice it to say that PW 1 Vishambhar Dayal and PW 5 Om Prakash sustained injuries, some of which were grevious. The death of Shivlal was homicidal and not natural.
6. Mr. Tibrewal also did not challenge the conviction of the appellants for offences Under Sections 326 or 323 or 324 IPC. He has challenged the conviction of the appellants Under Section 302 read with Section 34 IPC. It was argued and argued vehemently by him that even if the evidence of the ocular witnesses who are also the injured persons, is accepted on its face, no case for the applicability of sec 34 IPC is made out so as to make the appellants vicariously liable for the killing of Shivlal. It was argued that according to all the eye witnesses and also according to the finding of the trial court, it was Amarjeet Singh alias Amru who thrust the Ballam in the abdomen of the deceased victim Shivlal. It was the injury caused in the abdomen, which caused the death of Shivlal. Amarjeet Singh was thus the principal offender, who caused the death of Shivlal. According to the eye witnesses, accused Jogender Singh struck a blow of Farshi on the head of Shivlal. But they are wrong on this point as no injury was found on his head. Further, according to the eye witnesses, accused Daljeet Singh struck only one below with his Ballam on the knee of Shivlal. The injury was not doubt found on the knee of the deceased, but according to Dr. Mishra, PW 21 who conducted the post-mortem examination that injury could not be caused by a Ballam. The knee injury which is described, as No. 3 in the post-mortem examination report ExP. 30, is the incised wound 2" x 3". The eye witnesses are unanimous that accused Daljeet Singh had a Ballam. That makes it highly suspicious that accused Daljeet Singh struck a blow on the knee of Shivlal. It was also argued that the incident had taken place in the field of the appellants and they, therefore, had a right to restrain the complainant party from digging the earth to prepare the bricks. The incident took place on the spur of moment without any pre-meditation. The whole trouble was invited by the members of the complaint party who started digging the appellant's field. In these circumstances, the killing of Shivlal by Amarjeet Singh alias Amru should be taken to be his individual act. The appellants cannot be imputed with the sharing of the common intention for killing Shivlal Reliance in support of the contention was placed on a member of decisions of the Apex Court and this Court, to which we will make a reference at the proper place.
7. Countering these contentions, it was argued by Mr. Parihar, learned Public Prosecutor that the appellants had come with shard edged weapons. The digging of soil in the appellants field did not permit them to use the violance against Shivlal and the other members of his party.
8. All efforts were made by the learned Public Prosecutor to convince us that it is a case where Section 34, IPC was correctly applied.
9. We have taken the respective submissions into consideration.
10. It is a trite law that Section 34, IPC does not create a substantive offence. It imports only a rule of evidence. The common intention in Section 34, IPC is the intention to commit the crime actually committed and one can be convicted only if he has participated in that common intention. The dominant feature of Section 34 IPC is the element of participation in action. This participation need not be by any physical act. The participation will include even the verbal instigation or incitement given by one to the other. How ever, the common intention implies acting in concert. Direct evidence relating to the common intention is seldom available. Generally the existence of common intention is gathered from the circumstances in which the offence was committed. The inference to be drawn from the circumstances should be a rational inference. In Mahboob Shah v. Emperor (AIR 1945 PC 118) their Lordships sounded a caution that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances.
11. We may also stated here that the common intention mentioned in Section 34, IPC must be to commit the particular crime. In other words, common intention is the intention to commit the crime actually committed. In Devilal and Ors. v. State of Rajasthan (AIR 1972 SC 1444) it was laid down that Under Section 34 IPC it has to be established by the prosecution that there was common intention before the participation by the accused. In Hardeo Singh v. State of Punjab it was held that the common intention must be to commit particular crime. What is thus required its Under Section 34 IPC is, that the common intention of one should be known to the other and each should share it.
12. The common intention should to commit the offence. Now protecting his property by one is not the offence. Therefore, if the persons assemble to protect their property, there cannot be any common intention or common object prohibited by law Vide State of Bihar v. Nathur and Ors. . In.... v. State of Rajasthan [1986 Cr. LR (Raj.) 567] decided by a Division Bench of this Court (to which one of us, namely, Justice S S. Byas was a Member) it was held that merely because one accompanies the other, it cannot be inferred that they formed a common intention to commit murder of the deceased or that one had shared common intention with the other for committing murder.
13. In the instant case, the incident took place in the field of the appellants. According to the eye witnesses, the appellants and their brothers forbade the members of the complainant party from digging the earth in their field for preparing the bricks. When there was commotion, deceased Shivlal and PW1 Vishambhar Dayal arrived on the spot. It was thereafter that Amarjeet Singh alias Amru struck a blow in the abdomen of deceased Shivlal with his Ballam and thereby caused his death. The evidence of the eye witnesses that accused Jogender Singh struck a blow of Farshi on the head of Shivlal is not true as no injury was found on his head. Accused Jogender Singh thus inflicted on injury to the deceased victim Shivlal. Accused Daljeet Singh, according to the eye witnesses, struck a blow on the knee of deceased Shivlal. He inflicted no injury on any vital part of the deceased victim In Surat Singh and Ors v. State of Punjab three persons made an assault on the deceased victim. One of them caused two simple injuries not on vital parts. Their Lordships took the view that accused who caused two simple injuries on the non-vital part cannot be said to have shared common intention of causing the death. Thus, on the totality of the circumstances and the evidence adduced by the prosecution, we are unable to subscribe the view of the court below that appellant Amerjeet Singh and Daljeet Singh had formed a common intention with Amarjeet Singh alias Amru to commit the murder of Shivlal. Section 34, IPC has no applicability against the appellant. Killing of Shivlal by Amarjeet Singh alias Amru was his individual act. The murder was not committed in furtherance of the common intention of the appellants.
14. The conviction of the appellants Under Sections 326, 324 and 323/34 IPC and the sentences awarded to them thereunder was not challenged before us.
15. In the result appeal of accused Jogender Singh and Daljeet Singh is partly allowed. Their conviction Under Section 302/34 IPC and the sentences awarded to them thereunder, are set-aside. They are acquitted of the said offence. How ever their conviction Under Sections 326, 323/34 and 324 IPC and the sentences awarded to them there under are maintained. Since the appellants are in custody right from 29-4-1984 to till today, they have served the sentence of imprisonment awarded to them. They shall, therefore, be immediately set forth at liberty, if not wanted in any other case.
16. The appeal shall stand accordingly disposed of.