Punjab-Haryana High Court
Rakesh And Another vs State Of Haryana on 3 October, 2011
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 282-DB OF 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: October 03 , 2011.
Parties Name
Rakesh and another
...APPELLANTS.
VERSUS
State of Haryana
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. J.S. Bedi,
Advocate, for the appellants.
Mr. P.S.Punia, Addl. A.G., Haryana,
for the respondent.
Mr. Nitin Rathi, Advocate, for the complainant.
Jasbir Singh, J.
JUDGMENT
Accused, namely, Rakesh and his father Dharampal (aged about 71 years) have filed this appeal against judgment dated March 28, 2002, and order dated March 30, 2002, vide which they were convicted for commission of an offence under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each, with a default clause. It was allegation against them that they along with Yogesh son of Dharam Pal ( a juvenile, who was tried separately) had CRIMINAL APPEAL NO. 282-DB OF 2002 -2- committed murder of Ajit Singh son of Mange Ram on March 20, 2000. Case of the prosecution, as noted by the trial Court, reads thus:
"Shorn of unnecessary details the facts of the prosecution case are that on 20.03.2000 a telephonic message was received from General Hospital, Sonepat about the receipt of dead body of Ajit Singh son of Mange Ram. Thereafter Sub Inspector/ Station House Officer (SI/SHO) Sahab Singh went to Civil Hospital, Sonepat and recorded statement Ex. PB of complainant Surender, wherein it is stated by him that on 16.03.2000 there was panchayat election in their village. An altercation had taken place in between his brother Ajit Singh (since deceased) and accused Rakesh. On the day of occurrence at about 5 p.m. he was coming as a pillion rider on motor cycle along with his brother Ajit. When they reached near the house of accused Dharampal, the accused came from inside i.e. Dharampal, Rakesh and one Yogesh. They stopped their motor cycle and accused Dharampal asked to teach lesson to Ajit regarding altercation on the election day. Thereafter, accused Dharampal and Yogesh caught his brother. Rakesh took out a knife from the right side 'dub' of his pant and gave two knife blows on the chest of his brother. On hearing noise PWs Jai Kishan and Karambir also came to the spot. On seeing them accused ran away alongwith the respective weapons. When they were bringing his brother Ajit to the hospital he breathed his last near the canal."CRIMINAL APPEAL NO. 282-DB OF 2002 -3-
Process of law was set in motion on a statement made by Surender Singh (PW5), brother of the deceased, which resulted into registration of an FIR (Ex. PB/1) against the above accused on March 20, 2000, in Police Station Rai, district Sonepat. The statement of Surender Singh (PW5) was recorded in Civil Hospital at Sonepat by SI Sahab Singh (PW9). Thereafter, the Investigating Officer went to the spot, took into possession a motor-cycle and blood-stained earth against recovery memos. A rough site plan of the place of occurrence (Ex. PH) was also prepared. He again went back to the hospital, got the dead body snapped, prepared an inquest report (Ex. PJ) and sent the dead body for post-mortem examination, which was conducted by Dr. S.S.Bhogal (PW10) along with Dr. R.N. Tehlan on March 21, 2000, at 9.50 AM. Following injuries were found on the person of the deceased:
"1. 4 x 2 cm incised wound viscera deep obliquely placed just medial and below the left memory area (nipple). On opening the chest, would track was going upward, backward and deep into the chest cavity ending into the heart at its interior aspect. Thoracic cavity was full of blood. Cari cardial cavity also contained blood.
2. 1.5 x 0.5 cm incised wound skin deep placed horizontally just below right nipple. Abdominal wall mouth pharynx and esophagus were normal peritoneum was pale. Stomach was empty. Small intestines contained only normal intestinal juices. Large intestine contained faecal matter only. Liver CRIMINAL APPEAL NO. 282-DB OF 2002 -4- spleen and kidney were normal anatomically but pale. Bladder external and internal sexual organs normal and our final opinion is given as: The cause of death was shock and haemorrhage as a result to the injuries of vital organs like heart and lung which were ante mortem in nature and sufficient to cause death in normal course of life."
Cause of death was shock and haemorrhage as a result of injuries to the vital organs, which were sufficient in nature to cause death in ordinary course of life. It was further noticed that duration of injury and death was within few minutes and between death and post-mortem within 24 hours. It was opined that only injury No. 1 was fatal. Appellant - accused Rakesh was arrested on March 22, 2000. His disclosure statement led to the recovery of weapon of offence, i.e., knife Ex. P3.
On completion of investigation, final report was put in Court for trial. Necessary documents were supplied to the appellant - accused as per provisions of Section 207 Cr.P.C. The appellants - accused were charge-sheeted for commission of an offence under Section 302 read with Section 34 IPC and Section 25 of the Arms Act. They pleaded not guilty and claimed trial:
To prove its case, the prosecution produced as many as ten witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, statements of the appellants - accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied and claimed false implication. CRIMINAL APPEAL NO. 282-DB OF 2002 -5- Appellant No. 1, namely, Rakesh in answer to question No. 10 has stated as under:
"I am innocent. Deceased Ajit was a professional criminal. Prior to the occurrence several cases were pending against him. He was having the company of criminal boys. On that account they became his enemies.
On 20.03.2000 Billu son of Chander Bhan and Ajit son of Rajinder, resident of Rathdhana were going on a motor cycle. A fight took place between them and deceased Ajit. He (accused Rakesh) remained admitted as indoor patient in Mukhi Hospital, Sonepat from 18.03.2000 to 21.03.2000"
Similar defence was taken up by appellant No. 2. They also led evidence in defence. Dr. Pardeep Kumar (DW1) was brought in the witness-box to show that on the date of alleged occurrence, i.e., March 20, 2000, appellant No. 1 was admitted in Mukhi Hospital at Sonepat.
The trial Court on appraisal of evidence came to a conclusion that the prosecution was successful in bringing home guilt of the appellant
-accused. Accordingly they were convicted and sentenced as found mentioned in earlier part of this order. Hence this appeal.
Shri J.S. Bedi, Advocate, counsel for the appellants, has vehemently contended that the alleged eye witnesses, namely, Surender Singh PW5) and Jai Kishan (PW6) were not present at the spot. He has stated that as per case of the prosecution, besides the deceased, three more persons from his side were available at the spot. Had they been present, it CRIMINAL APPEAL NO. 282-DB OF 2002 -6- would not have been possible for the appellants - accused to commit the crime. The very fact that all the three did not intervene to save the deceased shows that they were not the eye- witnesses. He has further stated that there is nothing on record to show that clothes of Surender Singh (PW5) were soiled with blood. He also argued that recording of the FIR was delayed and there is no explanation to explain the same. By making reference to the evidence of the prosecution, he vehemently argued that the prosecution has failed to prove any common intention on the part of appellant No. 2 Dharampal to commit murder of Ajit Singh. He also tried to impress upon the Court that at the maximum , in the alternative, offence committed by appellant No. 1 Rakesh would fall within the provisions of Section 304 part II and not Section 302 IPC, as alleged. He prayed that the appeal be allowed and the appellants be acquitted of the charges framed against them.
Prayer made has vehemently been opposed by the State counsel, who by making reference to the medical and ocular evidence on record, argued that the prosecution was successful in proving guilt of the appellants - accused. The occurrence was seen by PW5 Surender Singh and two others and further that the recording of the FIR was very prompt. All the three accused came together at the place of occurrence. Dharampal and co-accused Yogesh caught hold of the deceased from his arms and fatal blow was given by appellant No.1 Rakesh. This clearly shows that they had a common intention to commit the murder. He prayed that the appeal having no substance be dismissed.
Heard.
It is stated by PW5 that at about 5.30 PM, when he along with CRIMINAL APPEAL NO. 282-DB OF 2002 -7- his brother, riding on a motor-cycle, reached near the house of the appellants, all the three accused came out and said that they would teach a lesson to Ajit Singh ( deceased), with whom Dharampal had some altercation on the date of election, i.e., March 16, 2000. It is further stated that accused Dharampal and Yogesh caught hold of the deceased and injuries were caused to him by Rakesh with a knife. It is further deposed that after arranging a conveyance, the injured was shifted to the General Hospital at Sonepat. However, he succumbed to the injuries during journey. On receipt of a telephonic message from the Hospital, the Investigating Officer SI Sahab Singh (PW9) reached there and recorded statement of Surender Singh (PW5) at about 8.40 PM. He sent a ruqqa to the Police Station, on the basis of which FIR Ex. PB/1 was recorded at 9.20 PM on March 20, 2000. Special report reached the Ilaqa Magistrate at 12.30 AM on March 21, 2000.
Above facts clearly indicate that there was no delay in getting the FIR recorded. The first priority of the family was to shift the injured to the Hospital for treatment. Arrangement for a transport might have taken some time. In the hospital, deceased was declared brought dead and intimation was sent to the police on a telephone. Thereafter the police officials might have taken some time to reach the hospital. Then statement of PW5 was recorded, which started the process of registration of an FIR, which was done at 9.20 PM on March 20, 2000. Special report reached the Ilaqa Magistrate at 12.30 AM on March 21, 2000. Time taken appears to be reasonable and just. In view of above, it cannot be said that the recording of FIR was delayed and the intervening period was used by the prosecution CRIMINAL APPEAL NO. 282-DB OF 2002 -8- to concoct a story.
It is apparent on record that the occurrence had taken place just in front of a vacant plot owned by the appellant - accused. Motive to commit the crime is stated to be an altercation, which had taken place between the parties on March 16, 2000, at the time of election in the village. The statement given by PW5 has been corroborated by PW6, who was attracted to the place of occurrence on raising of hue and cry by the deceased. His coming to the spot along with one more person made the accused to flee away from the scene of crime.
The post-mortem on the dead body was conducted by Dr. S.S.Bhogal (PW10), who had noticed that shirt of the deceased was torn at two places, corresponding to the seat of injuries caused to him by the appellant No. 1. Perusal of post-mortem report shows that injury No. 1 was given on the chest with such a force that it had gone deep into the chest cavity ending into the heart at its anterior aspect. The mode and the manner of giving injury clearly indicate that the intention of appellant No. 1 was to kill the deceased. Assault was repeated when second injury was caused, again at the chest, though it was declared simple in nature. It has also come on record that when the deceased along with PW5 was passing in front of the house of the appellants, they were intercepted. The deceased was caught hold from the arms by Dharampal, appellant No.2, and Yogesh accused. Appellant No. 1 brought out a knife from his pocket and gave two blows to the deceased in his chest, which resulted into his death. In view of above, there is no escape from a conclusion that appellant No. 1 Rakesh has committed an offence punishable under Section 302 IPC. CRIMINAL APPEAL NO. 282-DB OF 2002 -9-
Shri J.S. Bedi, Advocate, contended that Dharampal , appellant No.2-accused, did not share any common intention with appellant No. 1 to commit murder of Ajit Singh; that it was not known to Dharampal that Rakesh had any knife with him and he would cause fatal injuries to the deceased.
Merely because all the three accused came together to attack the deceased, it cannot be inferred that they shared common intention to kill him. In this respect, the prosecution has failed to bring home guilt of appellant No. 2. In the case of Sripathi and others v. State of Karnatak, 2009(2) RCR (Criminal) 597, the Supreme Court has dealt with the parameters to fasten liability upon a co-accused by invoking the provisions of Section 34 IPC. In that case also, it was alleged by the prosecution that the three accused had caught hold of the deceased and the fourth had caused fatal injury to him by bringing out a knife from his pocket. To acquit those, against whom it was alleged that they had caught hold of the deceased, it was observed as under:
"9. 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 CRIMINAL APPEAL NO. 282-DB OF 2002 -10- common intention is seldom available and, therefore, such intention can only be inferred form 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, 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 vs. 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.
10. The Section does not say; "the common intention of all", nor does it say ;"and intention common to all";. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the CRIMINAL APPEAL NO. 282-DB OF 2002 -11- accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. vs. State of Andhra Pradesh , 1993(3) RCR (Criminal)319: ( AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.
11. The conviction of the appellant Nos. 1,2 and 3 by application of Sec.34 IPC does not appear to be in order. However, the conviction as recorded so far as A.4 is concerned, is well founded and no interference is called for. In the result, the appeal filed by A.1, A.2 and A.3 (Sripathi, Mallikarjun, Sanjaya) stands allowed while that of Pandit (A.4) stands dismissed. "
To the same effect is the opinion of the Supreme Court in the case of State of Uttar Pradesh v. Gajadhar Singh and others, (2009)3 Supreme Court Cases (Cri) 1379, in which there were three accused against CRIMINAL APPEAL NO. 282-DB OF 2002 -12- whom it was alleged that two had caught hold of the deceased and fatal shot was fired from a pistol by the third accused. By taking note of a fact that availability of the pistol with the third accused was not known to the other two accused, benefit of doubt was given to them and it was held that they did not have any common intention to kill the deceased. Same is the ratio of a judgment of a Division Bench of this Court in Vijay Kumar v. State of Punjab, 1997 (4) RCR (Criminal) 479.
In the present case also, it is case of the prosecution that appellant No. 1 Rakesh had concealed a knife in his pocket. When deceased was caught hold from his arms by appellant No. 2 and another accused, he brought out the knife from his pocket and stabbed the deceased.
In view of above, liability to commit offence under Section 302 IPC by invoking the provisions of Section 34 IPC cannot be fastened upon appellant No. 2. At the maximum, he can be held guilty for commission of an offence under Section 323 IPC. As he has already undergone more than four years and nine months of actual sentence, it is not necessary to pass any order qua sentence. Accordingly, he is ordered to be set at liberty.
In view of facts, mentioned above, this appeal is partly allowed. Qua appellant No. 1 Rakesh Kumar, it is dismissed. His conviction and sentence for commission of an offence under Section 302 IPC is maintained. However, qua Dharampal, appellant No. 2, it is partly allowed in the terms as indicated in the earlier part of this order.
( Jasbir Singh )
Judge
( Sabina)
October 03 , 2011 Judge
DKC
CRIMINAL APPEAL NO. 282-DB OF 2002 -13-
DKC