Rajasthan High Court - Jaipur
Pyarelal vs Sohan Lal And Ors on 19 December, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Criminal Appeal No.272/2005 Ramkumar and Another Vs. State of Rajasthan through Public prosecutor
2. D.B. Criminal Appeal No.721/2005 State of Rajasthan through Public Prosecutor Vs. Sohanlal and Others
3. D.B. Cr. Revision Pet. No.176/2005 Pyarelal Vs. Sohanlal and Others Date of Order ::: 19.12.2012 Present Hon'ble Mr. Justice Mohammad Rafiq Hon'ble Dr. Justice Mrs. Meena V. Gomber Shri Biri Singh Sinsinwar, senior counsel with Shri Rajesh Choudhary, for accused-appellants Shri J.R. Bijarnia, Public Prosecutor Shri Gurvinder Singh, counsel for complainant/revisionist #### //Reportable// Per Hon'ble Mr. Justice Mohammad Rafiq:-
Of these matters, Criminal Appeal No.272/2005 has been filed by accused-appellants, namely, Ramkumar and Harikishan, which seeks to challenge judgment and order of learned Additional Sessions Judge (Fast Track) Kishangarhbas, District Alwar, dated 28.01.2005 in Sessions Case No.49/2003, by which they were convicted for offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.2000/- each, in default of payment of which, they were further directed to further undergo one year's rigorous imprisonment.
Facts leading to present appeal are that one Pyarelal submitted a written report on 08.12.2002 to Station House Officer, Police Station Khairthal, Alwar, alleging therein that in the morning of 08.12.2002 at about 6.30 Hrs., he, i.e. the informant, Phoolsingh, Lalaram, Gangaram, Chandram and Ramesh. were going from village Sorkha Khurd to Khairthal for selling their tomato-crop; on the road they were intercepted by Sohanlal, Ramchandra, Harikishan, Ramkumar, Lajja, Anaro, Bimla, Kamla; who were armed with 'lathis', 'pharsis' and 'chantia', started beating them. Complainant had ten thousand rupees with him, which were also snatched by them. All injured were hospitalized in Government Hospital, Kishangarhbas. Action be taken against culprits.
Police on the basis of aforesaid written report, chalked out a regular First Information Report No.277/2002 for offence under Sections 143, 341, 323 and 379 IPC. During treatment, Phulu @ Phoolchand died on 11.12.2002. Thereafter offences under Sections 302/149, 147 and 148 IPC were also added thereto.
Police, after investigation, filed challan against accused-appellants and five more accused, namely, Sohanlal, Ramchandra, Bimla, Anaro and Lajja for offence under Sections 302, 341, 323, 147, 148 and 149 IPC. Since the police did not find any offence against accused Kamla, charge-sheet was not filed against her. Charges against all seven accused were framed for offence under Sections 147, 148, 341, 323, 302 read with 149 IPC. Accused denied the charges and claimed to be tried.
One of accused Smt. Lajja W/o Sohanlal died during trial and therefore proceedings against her were dropped vide order dated 27.01.2005, therefore trial proceeded only against six accused.
Prosecution, in support of its case, examined as many as 22 witnesses and exhibited 42 documents, whereas defence examined one witness, namely, DW-1 Dr. Raghuvar Dayal Madhaiya and exhibited 20 documents.
Learned trial court, after conclusion of trial, acquitted four accused, namely, Sohanlal, Ramchandra, Smt. Bimla and Smt. Anaro, and convicted accused-appellants, namely, Ramkumar and Harikishan and sentenced them in the manner indicated above. Hence, Criminal Appeal No.272/2005.
Apart from Criminal Appeal No.272/2005 filed by accused Ramkumar and Harikishan against their conviction, the State of Rajasthan has filed Criminal Appeal No.721/2005 with the leave of the court against acquitted accused, whose acquittal has also been challenged by complainant in Revision Petition No.176/2005.
Since all these matters arise out of a common judgment and order, they were heard together and are being decided by this common judgment.
We have heard Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, Shri J.R. Bijarnia, learned Public Prosecutor for the State and Shri Gurvinder Singh, learned counsel for complainant/revisionist, and perused the material on record.
Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that from site plan Exhibit P-7 (prepared in FIR No.277/2002 of complainant) and site plan Exhibit D-14 (prepared in cross FIR No.278/2002 of accused) it is proved that incident had taken place in front of house of Sohanlal, a member of accused-party, who has been acquitted by learned trial court. Evidence in present case also shows that it is complainant-party, which was aggressor and came to house of accused-party. Whatever was done by accused-party was done in exercise of its right of private defence. Presence of members of accused-party in their house soon after incident, was natural, whereas there is no explanation for presence of members of complainant-party in front of house of accused-party and this makes it clear that they had come to attack members of accused-party. Learned senior counsel in this connection referred to statement of PW-3 Jummaram and argued that a member of accused-party owed some money to Puran. Gangaram, another member of complainant-party, and Puran visited the house of accused to reprimand them. In this connection, learned senior counsel referred to statement of PW-6 Puran, wherein he himself stated that he demanded a sum of Rs.100/- from Puran but he refused to give the same and then a quarrel took place between them on previous night of fateful day. Gangaram assured son of Sohanlal that if Puran would not refund the money, then he would give him the same. Learned senior counsel submitted that PW-11 Bachan Singh, though he has been declared hostile, but his statement to this extent is clear that quarrel took place between the parties over the dispute of payment of Rs.100/- on previous night of fateful day. In the morning also when Phoolsingh, Lalaram, Gangaram, Pyarelal, Chandram and Ramesh, were passing through the road in front of house of accused-party on two motorcycles, altercation took place between the parties. He tried to pacify them but both the parties started pelting stones at each other and then he left. Learned senior counsel for accused-appellants submitted that it was on a trifle issue that the entire incident started, which resulted into free fight and further culminated into unfortunate death of Phulu @ Phoolchand. In this connection, learned senior counsel referred to statement of PW-2 Pyarelal and argued that if his statement is read with that of PW-13 Gangaram, it would be clear that immediately after the incident turned into a free fight, both parties started pelting stones then to attack each other. In the case of free fight, there can be no question of any common intention being attributed to two accused appellants.
Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that even otherwise, PW-2 Pyarelal, PW-4 Chandram, PW-5 Savitri, PW-9 Chandro, PW-12 Lalaram, PW-13 Gangaram and PW-14 Phoolsingh, in their statements, categorically stated that, initially when incident started, deceased Phulu @ Phoolchand, Chandro, Jumaram and Savitri were not at the scene of occurrence. From the side of complainant-party, it were Phoolsingh, Lalaram, Gangaram, Pyarelal, Chandram and Ramesh, who joined the incident from beginning and these witnesses have stated that four persons, namely, deceased Phulu @ Phoolchand, Chandro, Jumaram and Savitri came to save them when they raised hue and cry. Reference, in particular, is made to statements of PW-5 Savitri (daughter of deceased), PW-9 Chandro (wife of deceased), PW-12 Lalaram, PW-13 Gangaram and PW-14 Phoolsingh, who have stated that Phulu @ Phoolchand reached the scene of occurrence to save them after the incident started. He requested the accused with folded hands to stop quarrel and not to fight. Citing all these statements, learned senior counsel argued that when quarrel between the parties started, it was between members of accused-party on the one hand and Phoolsingh, Lalaram, Gangaram, Pyarelal, Chandram and Ramesh from the side of the complainant-party on the other hand. Phulu @ Phoolchand was not present at the scene of occurrence from the beginning. He along-with Chandro, Savitri and Jumaram came there only on hearing the hue and cry. He tried to intervene and it is in that process he was hit by two lathi blows allegedly one each delivered by Ramkumar and Harikishan (accused-appellants herein). Learned senior counsel submitted that those injuries were received by deceased Phulu @ Phoolchand accidentally and they were unintended. Even though he died unfortunate homicidal death, it was not an intended death. Intention of his death cannot therefor be attributed to any of accused-appellants. This is all the more so when in postmortem report (Exhibit P-25), cause of death is not clear as to which of these injuries proved fatal and was sufficient to cause death in the ordinary course of nature. In the opinion of doctor, cause of death has been indicated to be coma due to antemortem head injury as mentioned in the postmortem report which is sufficient to cause death in the ordinary course of nature. In the statement he has also therefore not mentioned that death was result of which of two injuries or was cumulative effect of two injuries. This fact coupled with the fact that complainant-party was aggressor and it was a case of free fight, no common intention can be attributed to members of accused-party. Each of them would be responsible for causing one injury and since it is uncertain as to which of two injuries was caused by which of these two accused-appellants and which injury actually proved fatal, benefit of such a lapse on the part of the prosecution should go to accused appellants. The offence cannot therefore travel beyond scope of Section 325 read with Section 34 IPC. Ratio of judgment of the Supreme Court in Ram Lal Vs. Delhi Administration AIR 1972 SC 2462 fully applies to the facts of present case, where injuries of two lathi blows had been received on head of deceased and there was no evidence as to which of those two was given by accused. Conviction of accused under Section 302 IPC was therefore set aside and same was altered to that of Section 325 read with Section 34 IPC.
Learned senior counsel further argued that no specific role was assigned to any of two accused-appellants, namely, Ramkumar and Harikishan initially in the first information report as well as in statements of witnesses recorded under Section 161 Cr.P.C. given by Jumaram, Chandram, Savitri and Chandro to Police on 12.10.2002, which are on record as Exhibits D-2, D-3, D-4 and D-5, respectively. This was so stated only by Pyarelal in statement Exhibit D-1. However, all these witnesses have made substantial improvement in their statement before the court by attributing two head injuries to accused-appellants Ramkumar and Harikishan. In fact, PW-4 Chandram, PW-5 Savitri, PW-9 Chandro, PW-12 Lalaram and PW-13 Gangaram, in their statements also additionally named accused Sohanlal as one who also caused injury on the person of deceased Phulu @ Phoolchand but learned trial court has not believed them to that extent and acquitted accused Sohanlal of the charge. Learned senior counsel further argued that there were five injured on the side of accused-party, namely, Harikishan, Sohanlal, Lajjo, Ramkumar and Bimla, and injuries sustained by them have been proved by DW-1 Dr. Raghuvar Dayal Madhaiya, according to whom, accused Harikishan received two injuries, accused Sohanlal received five injuries, accused Lajjo received two injuries, accused Ramkumar received two injuries and accused Bimla received one injury. PW-21 Dr. Bhawani Shankar has also in his statement proved injury of accused Bimla. Although, injuries received by these five persons were simple but, nevertheless, prosecution has an obligation to explain the injuries received by them. Presence of injuries on the persons of members of accused-party, coupled with the fact that incident took place in front of house of accused-party, proves that complainant-party was aggressor. The accused appellants, in any case, have been attributed one injury each by use of 'lathi', which clearly shows that they did not use deadly weapon. They did not repeat injury. Incident has taken place over a very trifle issue, without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and that offenders having not taken undue advantage of their position. Their offence would therefore fall in Exception 4 to Section 300 of the IPC. The act of the accused-appellants would, therefore, at the maximum, fall within purview of Section 304 Part II of the IPC. Both the accused-appellants have already served sentence for a term of around ten years in jail and therefore this court may set-aside their conviction under Section 302 IPC and alternatively convict them for offence under Section 304 Part II of the IPC releasing them on the period already undergone by them. Learned senior counsel has relied on judgment of the Supreme Court in Ramu v. State of U.P. - AIR 2004 SC 1605 and Ramesh Vithalrao Thakre and Another Vs. State of Maharashtra 1995 Cri.L.J. 2907.
Shri Biri Singh Sinsinwar, learned senior counsel for accused-appellants, argued that as far as appeal filed by the State against acquittal of other accused and revision filed by complainant-party, are concerned, learned trial court has found innumerable contradictions in statements of all prosecution witnesses inasmuch as it has not found their statements trustworthy for injuries of Phoolsingh, Jumaram, Chandro, Gangaram and Lalaram, whereas there were two head injuries on the person of deceased and third injury being superficial. When this is examined in the light of fact that five persons on the side of accused-party had also received injuries, decision of learned trial court to acquit other accused except accused-appellants Ramkumar and Harikishan, cannot be faulted. In this connection, learned senior counsel referred to findings recorded by learned trial court in Para 13 of impugned judgment and submitted that trial court has rightly not found charges against other accused proved beyond reasonable doubt and therefore rightly extended benefit of doubt to them. Learned trial court has also not found charge of unlawful assembly proved against accused and therefore rightly acquitted them of charge under Section 148 IPC.
Per contra, Shri J.R. Bijarnia, learned Public Prosecutor appearing on behalf of the State and Shri Gurvinder Singh, learned counsel appearing on behalf of complainant, argued that learned trial court has rightly convicted accused-appellants Ramkumar and Harikishan for substantive offence of Section 302/34 IPC. Learned Public Prosecutor submitted that accused-appellants have been specifically named as assailants for two injuries on the head of deceased Phulu @ Phoolchand. It is submitted that statement of Pyarelal under Section 161 Cr.P.C. was recorded on very day of incident i.e. 08.12.2002, wherein he named accused Ramkumar and Harikishan as author of two head injuries on deceased Phulu @ Phoolchand. It was argued that apart from two head injuries, deceased also received third injury, which is proved from injury report (Exhibit P-1) of Phulu @ Phoolchand. This injury was abrasion and diffusive swelling in head on right side anterior to ear in 4x4 cm area, whereas first two injuries were - lacerated wound on occipital region of right side in lower part and lacerated wound in the occipital region of right side in middle part both in the size of 3 and x cm, and 3 cm x 1/4x1/4 cm. These injuries have been proved by PW-16 Dr. P.K. Saini. This doctor has proved postmortem report (Exhibit P-25). Learned Public Prosecutor argued that witnesses, namely, PW-2 Pyarelal, PW-4 Chandram, PW-9 Chandro, PW-12 Lalaram, PW-13 Gangaram and PW-14 Phoolsingh have categorically stated that these injuries were caused by accused Ramkumar and Harikishan, who inflicted 'lathi' blows on the head of deceased Phulu @ Phoolchand.
Learned Public Prosecutor further submitted that witnesses, namely, PW-5 Savitri, PW-9 Chandro, PW-12 Lalaram and PW-13 Gangaram, have stated that third injury was caused by Sohanlal and therefore he should also be convicted for same offence with the aid of Section 34 of the IPC because accused-appellants Ramkumar and Harikishan as well as Sohanlal shared the common intention of committing murder of deceased Phulu @ Phoolchand. It was submitted that when it is clear that two accused inflicted two injuries, no ambiguity can be said to exist in regard to role of accused merely because in postmortem report (Exhibit P-25) and in statement of PW-16 Dr. P.K. Saini, word has been used as 'singular' rather than 'injuries', and it does not mean that injury report as well as postmortem report can be overlooked, which, in fact, mentions two fatal injuries on the head of deceased. Those two injuries having been assigned to accused-appellant Ramkumar and Harikishan, they, having been held to share common intention, would be jointly responsible for murder of deceased Phulu @ Phoolchand. They have been rightly convicted for offence under Section 302 read with Section 34 of the IPC. Present one cannot be said to be a case of culpable homicide not amounting to murder because evidence clearly prove that accused-appellants Ramkumar and Harikishan had requisite knowledge and intention of the fact that injuries, which they have inflicted on the head of deceased, were most likely to cause death of Phulu @ Phoolchand. Learned Public Prosecutor argued that common intention can develop even on the spot. In support of this argument, he cited the judgments of the Supreme Court in Rajesh Govind Jagesha v. State of Maharashtra, AIR 2000 SC 160. Learned Public Prosecutor therefore argued that appeal preferred by accused-appellants be dismissed and, appeal and revision petition filed by the State and complainant/revisionist, respectively, be allowed in the terms as prayed for.
We have given our anxious consideration to rival submissions and perused the material on record.
Appeal of the State and Revision of complainant We may at the outset observe that in so far as appeal filed by the State against acquittal of accused Sohanlal, Ramchandra, Smt. Bimla, Smt. Anaro and revision petition filed by complainant-party assailing their acquittal, do not deserve acceptance because learned trial court has objectively analyzed the evidence on record to the role of other accused, namely, Sohanlal, Ramchandra, Smt. Bimla and Smt. Anaro. Learned trial court has noted that there were only two injuries on the head of deceased and third injury has not been found to be grievous. Phool Singh, Jumaram, Chandro, Lalaram and Gangaram are other injured on the side of complainant-party but their all injuries were found to be simple in nature. Phoolsingh received five simple injuries, Jumaram received two simple injuries, Chandro received two simple injuries, Lalaram received four simple injuries and Gangaram received five simple injuries, which are in the nature of bruises and pains. As against this, there were five injured on the side of accused-party also, namely, Harikishan, who received two injuries, Sohanlal received five injuries, Lajjo received two injuries, Ramkumar received two simple injuries and Bimla received one injury. We are informed at the bar that in cross case registered against complainant-party for injuries sustained by members of accused-party, the police has submitted negative final report. Learned trial court, on analysis of statements of prosecution witnesses, noted that they have made substantial improvements over their previous version given to investigating officer in their statements recorded under Section 161 Cr.P.C. Chandro Devi, in her statement under Section 161 Cr.P.C., did not name any accused in particular but in her court statement, she has named accused Ramchandra and Harikishan. Phoolsingh has also not named any accused responsible for injuries. Injured Lalaram has named Ramchandra, Sohanlal, Anaro and Lajja during investigation but in court statement he has completely changed his version. He has not named two of them whereas named only Ramchandra and Lajjo, to whom he has attributed injuries on different parts of the body, than the one given earlier. Lalaram, in statement given to police, alleged that Ramchandra inflicted lathi blow on the right tempo parietal region; Sohanlal inflicted lathi blow on his left thigh; Anaro inflicted a blow on his right shoulder and Lajjo inflicted a lathi blow on his left elbow. Whereas, in his court statement, he attributed the injuries on his hand to Ramchandra; injuries on his leg to accused Sohanlal and injuries on his right tempo parietal region to Lajjo. Similarly, injured Gangaram, in his statement to investigating officer, has alleged that accused Sohanlal inflicted a blow at his back, Lajjo inflicted another blow on finger of his left hand but, in court statement, he has assigned his head injury to accused Ramchandra and injury on his leg to accused Anaro and injuries on his back to accused Sohanlal. Learned trial court, therefore, found such serious contradictions in their statements and rightly held that prosecution has not been able to prove allegations against other accused, namely, Sohanlal, Ramchandra, Smt. Bimla, Smt. Anaro beyond reasonable doubt and therefore they were acquitted by extending benefit of doubt.
In so far as allegation that accused Sohanlal has been named as assailant for causing third injury on person of deceased Phulu @ Phoolchand, by PW-5 Savitri, PW-9 Chandro, PW-12 Lalaram and PW-13 Gangaram is concerned, it should be noted that none of these witnesses in their statements under Section 161 Cr.P.C. originally named Sohanlal as one of the assailants on the person of deceased Phulu @ Phoolchand; it was only Pyarelal who, for the first time in police statement, named only Ramkumar and Harikishan as such assailants. Other witnesses gave general nature of statement. They have made such allegation for the first time in their court statements. And, therefore, learned trial court has not found it safe to convict accused Sohanlal on the basis of such contradictory statements. Learned trial court found that there is consistent evidence for injuries of deceased Phulu @ Phoolchand only against Ramkumar and Harikishan and, therefore, it convicted them alone and none else. We are, therefore, not persuaded to interfere with findings of acquittal of accused Sohanlal, Ramchandra, Smt. Bimla and Smt. Anaro. Appeal filed by the State and revision filed by complainant/revisionist both therefore deserve dismissal and are accordingly dismissed.
Appeal of the accused-appellants Turning now to appeal filed by accused-appellants, we find that Exhibit P-7 site-plan prepared in FIR No.277/2002 and Exhibit D-14 site-plan prepared in cross FIR No.278/2002, both concur on the place of incident that it took place in front of house of accused-party, whereas members of complainant-party initially had gone to make complaint to accused about money. Chatar son of Sohanlal owed Rs.100/- to Puran. PW-13 Gangaram, in his statement, named Chatar as son of Sohanlal, who owed Rs.100/- to Puran. Altercation had taken place on previous night of fateful day when Puran demanded Rs.100/- from Chatar, which he promised to give him in morning of following day. Puran, in his statement, has stated that Gangaram assured him that if Chatar did not give the money, he would pay the same to him. PW-11 Bachan Singh, even though is a hostile witness, has given statement to this extent that dispute between parties was with regard to amount Rs.100/-, on which they started fighting with each other. Evidence also proved that initially Pyarelal, Ramesh, Chandram, Gangaram, Lalaram and Phool Singh had gone to the place of incident with whom accused persons picked up quarrel, wherefor accused alleged that members of complainant-party had come to attack their house and were aggressors. Complainant-party asserted that they were passing through the lane in front of house of accused-party and going to Kharithal for selling their tomatoes crop. In any case, PW-2 Pyarelal, PW-4 Chandram, PW-9 Chandro, PW-12 Lalaram, PW-13 Gangaram and PW-14 Phool Singh, have all consistently stated that on hearing hue and cry after fighting started between the parties, deceased Phulu @ Phoolchand, Chandro, Jumaram and Savitri came rushing there in order to save them. PW-5 Savitri has stated that her father Phulu @ Phoolchand came to scene of occurrence to save them. He requested accused with folded hands that they should stop quarrel. PW-9 Chandro also stated that her husband Phulu Ram came there after the incident had already started. He tried to intervene and requested accused with folded hands to stop quarrel. PW-12 Lalaram also has made similar statement. PW-13 Gangaram has also stated that deceased Phulu requested accused with folded hands that they should stop quarrel. PW-14 Phoolsingh has also similarly stated that Phulu with folded hands requested the accused not to fight.
The evidence thus clearly show that quarrel in fact was started by members of accused-party on the one hand and by Pyarelal, Ramesh, Chandram, Gangaram, Lalaram and Phool Singh on the other hand. At that time deceased Phulu @ Phoolchand was nowhere at the scene of occurrence. He arrived there after fight between them had already started. He tried to intervene and requested accused-party to stop the fight. It was in that process that he was hit on his head by two successive lathi blows at the hands of accused-appellants Ramkumar and Harikishan. Evidence is not clear as to which of accused first delivered the blow on his head because the witnesses differ on this aspect of the matter and evidence is also not clear. It is also not proved from the medical evidence as to which of two injuries individually proved fatal and was responsible for death of Phulu @ Phoolchand. In the postmortem report (Exhibit P-25) cause of death as mentioned as follows:-
The cause of death is coma due to antemortem head injury as mentioned in the postmortem report which is sufficient to cause death in ordinary course of nature.
PW-16 Dr. P.K. Saini, while deposing before trial court, in response to a specific query as to the cause of death, stated exactly the same cause of death that 'in my opinion the cause of death was the coma due to the head injury which was sufficient to cause death in the ordinary course of nature'. In the postmortem report as well as in the statement, word 'injury' has been used in singular form, that has been referred to as the cause of death. It is thus not clear as to which of the two injuries was responsible for causing death of Phulu @ Phoolchand. Injury report of Phulu @ Phoolchand (Exhibit P-1) indicates the injuries on his person to be as follows:-
(1) lacerated wound in the occipital region right side in lower part of size 3 and x cm with frozen bleeding (2) Lacerated wound in the occipital region of size 3 cm x 1/4x1/4 cm with frozen bleeding.
(3) Abrasion with diffuse swelling in head right side anterior to ear in 4x4 cm area ....
Comparison of injury no.1 and injury no.2 indicates that both are grievous injuries and both appears to be almost of the same size; one in the occipital region of right side in lower part and another in the occipital region of right side in middle part. But they certainly cannot be said to be one injury and are two independent injuries, which is evident from their different location and size. The postmortem report has also indicated that following injuries were found on the body at the time of postmortem examination:-
(1) Stitched wound of size 34 cm ... from right parietal region parallel and near middle to right parietal right occipital anterior part and thin stunning downwards and towards to right temporal lobe upto the right ear pinwa, brain matter is protruding out of the posterior part of wound.
(2) Stitched wound of size 2cm with surrounding abrasion of size 4.5 x 2 cm with radish brown swab portion right occipital region behind (1).
First two injuries were Stitched wounds corresponding to first two injuries in the injury report. In the circumstances it is clearly evident that accused-appellants Ramkumar and Harikishan were the only two accused of the whole lot, who shared common intention to inflict such bodily injury on the head of deceased Phulu @ Phoolchand as they knew that the same was likely to cause death but they cannot be held to have requisite intention to cause death or to cause such bodily injury as was likely to cause death. Accused did not repeat the blow in that they inflicted one blow each on the head of deceased, therefore, they cannot be held to have intention of causing such injuries on his head as was likely to cause death. The injuries on his head of the deceased were result of sudden fight in a heat of passion and sudden quarrel, the offender having not been taken undue advantage of their position as they did not repeat the blow. Incident occured at the spur of moment without any intention or motive of causing death and immediately as aftermath of hot altercation. Their offence would therefore fall within the purview of Section 304 Part II of the IPC. They shared the common intention and it is not necessary for a common intention that in every situation be preceded by meeting of minds prior to any incident.
In the present case, a question may arise as to when and at what stage, these two accused shared common intention and acted in furtherance of common intention because how would they have meeting of minds so as to arrive at a common intention. Reference in this question may be made to the judgment of Supreme Court in Abdul Sayeed Vs. State of Madhya Pradesh : (2010) 10 SCC 259. It was held therein that the phrase common intention implies a prearranged plan and acting in concert pursuant to the plan. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Common intention under Section 34 IPC is to be understood in a different sense from the same intention. In para 51 of the report, the Supreme Court in categorical terms held that undoubtedly, the ingredients of Section 34 i.e. the accused had acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. Law on this aspect is thus clear that Section 34 IPC can be attracted even where some of the accused have been acquitted provided that against rest of the accused it can be proved either by direct evidence or by inference that they all acted in furtherance of the common intention. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto.
In Hariom Vs. State of U.P. : 1993 Supp. (2) SCC 1 [1993(1) Crimes 294 (SC)] it was held by the Supreme Court that in order to bring a case under Section 34, it is not necessary that there must be a prior conspiracy or pre-meditation and common intention can also be formed suddenly.
In Virendra Singh Vs. State of Madhya Pradesh : (2010) 8 SCC 407, Supreme Court held that a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention and can be inferred from acts or conduct of accused and other relevant circumstances for which documents on record acquire a great significance and they have to be very carefully scrutinized by the court.
In Sangappa Sanganabasappa M. and others Vs. State of Karnataka and others : (2010) 11 SCC 782, Supreme Court held that on perusal of entire circumstances only accused appellants before it were found to be sharing common intention and not remaining accused persons who were acquitted. The findings of the Additional Sessions Judge and the High Court that the accused did not fall u/S.149 IPC were held correct and the High Court was held justified in upholding the finding of the Additional Sessions Judge and conviction of the accused for offence u/S.302 with the aid of Section 34 IPC was upheld.
The Supreme Court in cited case of Rajesh Govind Jagesha, supra, held that no premeditation or previous meeting of mind is necessary for the applicability of S.34 of the IPC. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purposes of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence.
If viewed from another angle, it should be noted that when the occurrence started, deceased Phulu @ Phoolchand was not a participant from beginning. He reached there only with a view to save the members of the complainant-party and in that process when he tried to intervene and requested the accused-party to stop fight, he received injuries. As many as six witnesses in their statements have proved that he had with folded hands requested the accused-party to stop the fight. The accused appellants in any case cannot be held to have any intention of causing his murder. It was in the midst of incident that the deceased intervened and was accidentally hit by lathi blows inflicted by accused-appellants. They cannot therefore be said to have any intention of causing his murder.
In Jagpati Vs. State of M.P. - 1994 Supp (1) SCC 460, the assault was made on the head and other parts of the body of the deceased with balli (ringed stick) and danda (ordinary stick). Deceased died next day. There were two head injuries, one 3 skin deep in the center of the head and the other swelling of about 3' in width on the forehead caused by two accused. Other injuries were only bruises on chest and arm. Doctor opined that first injury on the head was sufficient in the ordinary course of nature to cause death but it was not certain which of the two accused inflicted fatal injury. A trivial quarrel led to occurrence without any immediate motive. The Supreme Court held that having regard to nature of injuries and other circumstances, accused had knowledge that the head injuries were likely to cause death. Hence conviction of both the accused-appellants under Section 302 IPC read with Section 34 IPC was set aside and instead they were convicted under Section 304 Part II IPC read with Section 34 IPC.
In view of above discussion, we are inclined to alter conviction of accused-appellants Ramkumar and Harikishan. The appeal filed by them is partly allowed. Their conviction under Section 302 read with Section 34 IPC is set aside and instead they are convicted for offence under Section 304 Part II read with Section 34 IPC. Since accused-appellant Harikishan has already spent ten years and ten days in jail and accused-appellant Ramkumar has already spent about nine years in jail pursuant to their conviction under Section 302 read with Section 34 IPC, their sentence for altered conviction is now reduced to the period already undergone by them. They be set at liberty, if not needed in any other case. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants Ramkumar and Harikishan are directed to forthwith furnish personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, accused-appellants Ramkumar and Harikishan, on receipt of notice thereof, shall appear before the Supreme Court.
(Dr. Meena V. Gomber) J. (Mohammad Rafiq) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW