Punjab-Haryana High Court
Satnam Singh vs State Of Punjab on 29 May, 2019
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
CRA-D-728-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CRA-D-728-DB of 2010
Satnam Singh
.... Appellant
Versus
State of Punjab
..... Respondent
(2) CRA-D-848-DB of 2010
Mangal Ram alias Mangali
.... Appellant
Versus
State of Punjab
..... Respondent
(3) CRA-D-878-DB of 2010 ( O&M )
Shingara Singh alias Shingari
.... Appellant
Versus
State of Punjab
..... Respondent
(4) CRA-D-694-DB of 2011 ( O&M )
Jagan Nath
.... Appellant
Versus
Shingara Singh alias Shingari and others
..... Respondents
Reserved on : 24.05.2019
Date of decision : 29.05.2019
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CRA-D-728-DB of 2010 -2-
CORAM :- HON'BLE MR. JUSTICE RAJIV SHARMA
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Ms. Isha Goyal, Advocate,
for the appellant
in CRA-D-728-DB of 2010.
Mr. T.C. Bansal, Advocate,
for the appellants
in CRA-D-848-DB of 2010 and CRA-D-878-DB of 2010.
Mr. G.S. Sidhu, Advocate,
for the appellant
in CRA-D-694-DB of 2011.
Mr. S.P.S. Tinna, Addl. A.G., Punjab.
***
RAJIV SHARMA, J.
1. Since common questions of law and facts are involved in CRA- D-728-DB of 2010, CRA-D-848-DB of 2010, CRA-D-878-DB of 2010 and CRA-D-694-DB of 2011, therefore, these are taken up together and being disposed of by a common judgment.
2. These appeals are instituted against judgment and order dated 31.05.2010, rendered by learned Additional Sessions Judge, Ferozepur, in Sessions Trial No. 92 of 2010. Appellants Satnam Singh, Mangal Ram alias Mangali and Shingara Singh alias Shingari were charged with and tried for the offences punishable under Sections 302, 302 read with Section 34 IPC, 382 IPC, 27 and 25 of the Arms Act. They were convicted and sentenced as under :-
2 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -3- Name of Sentenced to RI Under Fine of ` In default of appellant Section payment of fine Shingara Life Imprisonment 302 IPC 10,000/- One year Singh alias Shingari Five years 382 IPC 5,000/- One year Three years 25 Arms Act 2,000/- Three months 27 Arms Act 2,000/- Three months Three years Mangal Ram Life Imprisonment 302 IPC 10,000/- One year alias Mangali Five years 382 IPC 5,000/- One year Satnam Singh Life Imprisonment 302/34 IPC 10,000/- One year Five years 382 IPC 5,000/- One year All the substantive sentences of imprisonment were ordered to run concurrently.
3. CRA-D-728-DB of 2010, CRA-D-848-DB of 2010 and CRA-
D-878-DB of 2010 have been filed by accused Satnam Singh, Mangal Ram alias Mangali and Shingara Singh alias Shingari, respectively, challenging their conviction and sentence.
4. CRA-D-694-DB of 2011 has been filed by complainant Jagan Nath seeking enhancement of sentence imposed upon the accused persons, and also for grant of compensation to legal heirs of his deceased son.
5. The case of the prosecution, in a nutshell, is that complainant Jagan Nath got recorded his statement before the police to the effect that he was running a Karyana shop. He had four sons and one daughter. Out of them, Ashok Kumar was a doctor and Pawan Kumar was running a medical shop in Bahmni Bazar, Jalalabad. On the night of 29.08.2003, Pawan Kumar 3 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -4- did not come back to his house. He accompanied by his son Kewal Krishan went to see him at his shop. His son was closing the shop. In the meantime, three boys in the age group of 20 to 25 years came on a motor cycle. They parked the motor cycle in front of the shop. They were clean shaven. Two of them were wearing shirts and trousers and one of them was wearing Kurta Pajama. One of them kept sitting on the motor cycle. Two persons entered the shop on the pretext of purchasing medicines. One of them was having a kirch in his hand. The other person was having a pistol. They tried to snatch a bag, which was containing about ` 8,000/-. Pawan Kumar resisted the same. Then the person, who was carrying kirch in his hand, gave a kirch blow on the neck of Pawan Kumar. The other person fired a shot on the right flank of Pawan Kumar. He collapsed. Thereafter, many kirch blows were given on various parts of the body of Pawan Kumar. The complainant and his son Kewal Krishan raised hue and cry. These persons snatched the money bag and ran towards village Bhamniwala on their motor cycle. Several persons gathered there. Blood was oozing from the wounds of Pawan Kumar. He was removed to Civil Hospital, Jalalabad. Thereafter, he was referred to Adesh Hospital, Muktsar. The occurrence took place at 11.00/11.15 PM. The lights were on. FIR was registered. When Pawan Kumar died, Section 302 IPC was inserted. The post mortem was got conducted. The accused were arrested. Weapons of offence were taken into possession. The investigation was completed and challan was put up after completing all the codal formalities.
6. The prosecution examined as many as 14 witnesses in support of its case. The accused were also examined under Section 313 Cr.P.C. They 4 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -5- denied the case of the prosecution. According to them, they were falsely implicated. They were convicted and sentenced, as noticed above. Hence, CRA-D-728-DB of 2010, CRA-D-848-DB of 2010 and CRA-D-878-DB of 2010 have been filed by them against their conviction and sentence. Complainant Jagan Nath has filed CRA-D-694-DB of 2011 seeking enhancement of sentence of the accused and grant of compensation.
7. Learned counsel appearing on behalf of the accused have vehemently argued that the prosecution has failed to prove its case. Learned counsel appearing for the State has supported the judgment and order of the learned Court below. Learned counsel appearing on behalf of the complainant has argued that the sentence of the accused be enhanced and family members of the deceased be awarded adequate compensation.
8. We have heard learned counsel for the parties and gone through the judgment and record very carefully.
9. PW.1 Dr. Parveen Kumar Garg testified that he sent information to the police vide despatch No. 901 dated 28.08.2003.
10. PW.4 Dr. L.C. Thukral conducted post mortem examination on the body of Pawan Kumar. He led his evidence by filing affidavit Ex.PW.4/A. He noticed the following injuries on the body of the deceased :-
1. A lacerated punctured wound 1 cm x 1 cm with inverted margins, with collar of abrasion and blackening present around the wound, present on the front lateral aspect of chest on left side, 10 cm below and lateral to left nipple.
2. On removal of stitches and drain from the wound from the right hypochondrium laterally the wound was found to be 3 cm x 1.14 cm with everted margins with laceration of tissues underneath. On passing through 5 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -6- probe from injury No.1, it was going downward, forward and towards the right side and was coming out of injury No.2. On dissection the diaphragm on the left side was lacerated, stomach transfer collan, part of left lobe and right lobe of liver was lacerated and abdominal cavity contained about two liters of blood. 10th rib was fractured and left side of chest cavity contained about 300 cc of blood.
3. An incised wound 6 cm x 1 cm x bone deep present on the occipital region in middle on both sides of mid lines.
4. An incised wound 3 cm x 1 cm x bone deep present on the left parietal region posteriorly.
5. An incised wound 1 cm x half cm present on the right side of the face below the eye laterally. On dissection of injuries No.3, 4, 5 underlying tissues were congested.
Clotted blood was present. On opening skull bones, membranes and brain were found healthy.
6. An incised wound 3 cm x 1 cm present on the left scapular area medially.
7. An incised wound 4 cm x 1 cm present 6 cm above injury No.6.
8. An incised wound 1.5 cm x .6 cm on the right shoulder.
9. An incised wound 1.4 cm x .6 cm on the left shoulder.
10. An incised wound 2 cm x 1 cm on the left thenar eminence.
11. A stitched wound 4 cm present on the lower lip on the mucoutaneous junction on both sides of mid line. On dissection injuries No.6 to 11, underlying tissues were congested and clotted blood was present.
The cause of death was haemorrhage and shock due to injuries No.1 and 2 caused by fire arm and multiple injuries, which were sufficient to cause death in due course of events. The probable time duration between injuries 6 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -7- and death was within few hours, and time between death and post mortem was between 6 to 24 hours. He proved the post mortem report Ex.PW.19/A.
11. PW.1 Jagan Nath is the material witness. According to him, his son Pawan Kumar was running a Chemist shop in Bahmni Bazar, Jalalabad. Pawan Kumar did not come back to his house from his shop upto 11.00 PM. Thereafter, he along with his son Kewal Krishan went to the shop of his son Pawan Kumar to see why he had not come back. When they went there, Pawan Kumar was closing the shop. In their presence, a motor cycle came there. Three persons, aged about 20 to 25 years, were riding on the motor cycle. He could recognise those persons. He identified them in the court. They snatched money bag from the hands of his son Pawan Kumar. His son resisted. His son was attacked with kirch by Mangat Ram alias Mangal. He gave so many kirch blows to his son. Shingara Singh was carrying a pistol. Shingara Singh fired a shot in the waist of Pawan Kumar on the left side of abdomen. His son collapsed on the spot. When he was lying, the man holding kirch again gave kirch blows on the leg and waist of Pawan Kumar. The third man kept standing near the motor cycle. His son raised alarm. All the three persons ran away from the spot. The bag containing money was taken away by them. He took his son to Civil Hospital, Jalalabad. The time of occurrence was 11.00/11.15 PM. The light was on. He made statement Ex.P1 to the police. The contents of the same were read over to him. He was confronted with his statement. He deposed that he mentioned the injuries on the right side of the waist of his son, but the injuries were caused on the left side of waist. His son expired at about 5.00 AM on 29.08.2003. He was cross-examined on 01.04.2010. He identified the accused in the court. In 7 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -8- cross-examination, he deposed that he did not try to catch hold of the accused or tried to save his son, because the accused were armed. Even Pawan Kumar had collapsed, when he received gun shot. He was still attacked by kirch.
12. PW.2 Kewal Krishan is also the eye witness. He deposed that on 28.08.2003, Pawan Kumar did not come back to his house from his shop. He went to the shop of Pawan Kumar along with his father PW.1 Jagan Nath. Pawan Kumar was closing the shop. In their presence, a motor cycle came there. Three persons were riding the motor cycle. He identified them in the court. These persons tried to snatch money bag from the hands of his brother Pawan Kumar. His brother resisted. His brother was attacked with kirch by Mangal Singh. Mangal Singh gave kirch blow on the back side of neck of Pawan Kumar. Shingara Singh was armed with pistol. He fired at his brother, which hit on the left flank of his brother. His brother collapsed. Then Mangal Singh gave kirch blows to his brother. He witnessed the entire occurrence. The light was on. He along with his father took his brother to Civil Hospital, Jalalabad. He was referred to Adesh Hospital, Muktsar and thereafter to DMC, Ludhiana. His brother died on the way. On 04.10.2003, accused Satnam Singh and Shingara Singh were apprehended by the police. Shingara Singh made a disclosure statement Ex.P4. In pursuance of his disclosure statement, he got recovered one pistol .315 bore along with one live cartridge of the same bore. These were taken into possession. The motor cycle was also taken into possession from Satnam Singh accused. In his cross-examination, he deposed that name of the shop of his brother was Kathpal Medical Hall.
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13. PW.3 Inspector Kuldip Singh deposed that he was posted at Police Station City Jalalabad on 29.08.2003. He came to know that injured Pawan Kumar was referred to Adesh Hospital, Muktsar. He went to Adesh Hospital, Muktsar. He recorded statement of Jagan Nath. He read over and explained the contents of the same. Pawan Kumar died on the same. The post mortem was got conducted. Rough site plan was prepared. Blood stained earth was lifted from the spot. He prepared inquest report. Accused Shingara Singh and Satnam Singh were apprehended. Motor cycle was recovered. Accused Shingara Singh made disclosure statement, on the basis of which pistol was got recovered. He denied the suggestion that pistol was fired at Police Station.
14. PW.5 HC Nihal Chand led his evidence by filing affidavit Ex.23. He denied the suggestion that the pistol was test fired at Police Station.
15. PW.6 HC Salwinder Singh also led his evidence by filing affidavit Ex.P27. In his affidavit, he deposed that on 29.08.2003, SI/SHO Kuldeep Singh handed over to him the case property, and one parcel of blood stained earth bearing seal impression `KS'. One parcel of small plastic box having one bullet of .315 bore duly sealed with seal bearing impression 'KS' and parcel of empty cartridge .315 bore duly sealed with the seal `KS' were deposited with him in the Malkhana of Police Station. The case property was handed over by him to Constable Lakha Singh on 12.11.2003 in an intact condition, with directions to deposit the same in the office of Forensic Science Laboratory, Chandigarh.
16. PW.7 SI Des Raj deposed that in his presence, SI Kuldip Singh 9 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -10- prepared the inquest report of the body of Pawan Kumar.
17. PW.8 Harmit Singh prepared the scaled site plan Ex.P22.
18. PW.10 HC Lakha Singh led his evidence by filing affidavit Ex.P24. According to the averments made in his affidavit, the case property was handed over to him by MHC Salwinder Singh on 12.11.2003 to be deposited in the office of Forensic Science Laboratory, Chandigarh vide RC No. 239/24. He went to the office of SSP and got numbered the docket on the same day. Thereafter, he deposited the case property in the office of Chemical Forensic Science Laboratory, Chandigarh on 13.11.2003.
19. PW.11 Constable Jaswinder Singh led his evidence by filing affidavit Ex.P28. He deposed that he was posted as a Constable in Police Station City Jalalabad on 14.01.2004. The case property, i.e. parcel containing one pistol of .315 bore duly sealed with the seal of `BS' bearing four seals along with sample seal and docket, along with five live cartridges of .315 bore, was handed over to him to be deposited in the office of Forensic Science Laboratory, Chandigarh. He deposited the same in the office of Forensic Science Laboratory, Chandigarh, on 15.01.2004.
20. The FSL report is Ex.P32. According to the result of examination, the caliber of one jacketed bullet marked CB/1 contained in parcel `B' was 0.315 inch. This bullet could have been fired from .315 inch country made firearm.
21. The case of the prosecution precisely is that on the night of 29.08.2003, Pawan Kumar did not come back to his house. His father, PW.1 Jagan Nath, along with his son, PW.2 Kewal Krishan, went to see him at his chemist shop. Pawan Kumar was closing the shop. In the meantime, accused 10 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -11- came on a motor cycle on the spot. Two of them entered the shop. One was standing outside near the motor cycle. They had come to snatch the money bag. One of them gave kirch blow on the body of Pawan Kumar. Another person, who was carrying pistol, fired shot at Pawan Kumar. Pawan Kumar collapsed. Thereafter, he was also given kirch blows. One person was standing near the motor cycle. Pawan Kumar was taken to hospital. He succumbed to his injuries. Body was sent for post mortem examination. The doctor noticed as many as 11 injuries on the body of the deceased. According to the post mortem report Ex.PW.19/A, the cause of death was haemorrhage and shock due to injuries No.1 and 2 caused by fire arm and multiple injuries, which were sufficient to cause death in due course of events. The probable time duration between injuries and death was within few hours, and between death and post mortem was between 6 to 24 hours. Kirch was recovered from Mangal Ram alias Mangali. The pistol was got recovered on the basis of disclosure statement made by Shingara Singh alias Shingari. The pistol was sent for ballistic examination. According to the FSL report Ex.P32, the caliber of one jacketed bullet contained in parcel `B' was 0.315 inch. The motor cycle was recovered from Satnam Singh.
22. The incident had been seen by PW.1 Jagan Nath and PW.2 Kewal Krishan. They had no enmity with the accused. They had identified the accused in the court. According to both of them, Mangal Ram alias Mangali had given kirch blows on the body of Pawan Kumar. Shingara Singh alias Shingari had fired at Pawan Kumar. Satnam Singh was standing near the motor cycle. There was some delay in arrest of the accused, since they had absconded. The minor contradictions were bound to occur, for the 11 of 19 ::: Downloaded on - 30-06-2019 03:50:14 ::: CRA-D-728-DB of 2010 -12- simple reason that the incident had happened on 29.08.2003 and statements of the eye witnesses were recorded in the year 2010. The motive attributed to the accused was that they wanted to snatch money bag of Pawan Kumar. They had snatched the bag, containing about ` 8,000/- along with gold ornaments.
23. Learned counsel appearing on behalf of the accused have vehemently argued that neither PW.1 Jagan Nath nor PW.2 Kewal Krishan tried to catch hold of the accused or to save Pawan Kumar. According to them, the accused were armed with deadly weapons. However, the fact of the matter is that Pawan Kumar was given kirch blows and fire was shot at him. He was taken to Civil Hospital, Jalalabad. Thereafter, he was referred to Adesh Hospital, Muktsar and then to DMC,Ludhiana. He died in the way.
24. Satnam Singh, one of the accused, has taken the plea that he had opposed the sitting MLA and for this reason, he was falsely implicated. This plea cannot be believed. The plea taken by Mangal Ram alias Mangali was that he was falsely implicated. There was no occasion for the complainant to falsely implicate the accused. The plea taken by Shingara Singh alias Shingari was that false case was registered against him. There is no evidence led by the accused to prove their respective pleas.
25. The accused had entered the shop of Pawan Kumar with common intention to snatch money bag and kill Pawan Kumar. They had come on one motor cycle and left the spot on the motor cycle after the incident. The presence of PW.1 Jagan Nath and PW.2 Kewal Krishan on the spot is not doubtful, since Pawan Kumar had not come back after closing the shop.
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26. Their Lordships of the Supreme Court in Krishnan and another vs. State represented by Inspector of Police, (2003) 7 Supreme Court Cases 56 have held that the applicability and rationale of common intention depends upon facts and circumstances of each case. Acts of all accused need not be the same or identically similar. They must be actuated by one and the same common intention. Their Lordships have also explained inter-relation between "that act" and "the act". Their Lordships have held as under:-
"28. It is to be seen whether the accused persons in furtherance of their common intention caused the death of the deceased on the alleged date, time and place. A charge under Section 34 of IPC presupposes the sharing of a particular intention by more than one person to commit a criminal act. The dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a prearranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 of the IPC. The existence of common intention is to be the basis of liability. That is why the prior concert and the prearranged plan is the foundation of common intention to establish liability and guilt.
29. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself; for "that act" and "the act" in the latter part of the section must include the whole section covered by a 13 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -14- "criminal act" in the first part, because they refer to it. Constructive liability under Section 34 may arise in three well- defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of:
(1) the common intention of all to commit such an offence (Section 34) (2) his being a member of a conspiracy to commit such an offence (Section 120A) (3) his being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (Section 149). Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually.
xxx xxx xxx
31. Applicability of Section 34 depends upon the facts and circumstances of each case. As such no hard and fast rule can be laid down as to the applicability or non-
applicability of Section 34. For applicability of the section it is not necessary that the acts of 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 14 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -15- the provision.
27. Their Lordships of the Supreme Court in Balu alias Bala Subramaniam and another vs. State (UT of Pondicherry), (2016) 15 Supreme Court Cases 471 have laid down principle when Section 34 IPC can be invoked. Their Lordships have held as under:-
"11. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention.
12. The classic case on the subject is the judgment of the Privy Council in Mahbub Shah v. Emperor, AIR 1945 PC 118, wherein it was held as under:-
"...Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all". Under the section, the essence of that liability is to be found in the existence of a common intention 15 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -16- animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from his act or conduct or other relevant circumstances of the case."
(emphasis supplied) Reiterating the above principles laid down by the Privy Council in Mahbub Shah's case, in Shankerlal Kacharabhai and Others vs. State of Gujarat, AIR 1965 SC 1260, this Court held that the criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself.
13. In Ramesh Singh v. State of A.P., (2004) 11 SCC 305, this Court held as under:-
"12. ... As a general principle in a case of criminal liability it is the primary responsibility of 16 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -17- the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion 17 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -18- whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC
696)"
(emphasis supplied)
14. Common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor.
15. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proving facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted."
28. Accordingly, the prosecution has proved its case against the accused persons beyond reasonable doubt. There is no merit in CRA-D-727- 18 of 19 ::: Downloaded on - 30-06-2019 03:50:15 ::: CRA-D-728-DB of 2010 -19- DB of 2010, CRA-D-848-DB of 2010 and CRA-D-878-DB of 2010 filed by them and the same are dismissed.
29. As far as CRA-D-694-DB of 2011 filed by complainant Jagan Nath for enhancement of sentence is concerned, there is no merit in the same, since the accused were already convicted and sentenced by the trial court to undergo life imprisonment and to pay fine. Even, no case is made out for awarding of compensation to the legal heirs of the deceased. Hence, the appeal filed by the complainant is also dismissed.
( RAJIV SHARMA )
JUDGE
May 29, 2019 ( HARINDER SINGH SIDHU )
ndj JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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