Allahabad High Court
Vinod And Others vs State Of U.P. on 24 July, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2023:AHC:145453-DB (Judgment reserved on 13.07.2023) (Judgment delivered on 24.07.2023) Court No. - 42 Case :- CRIMINAL APPEAL No. - 559 of 1996 Appellant :- Vinod And Others Respondent :- State of U.P. Counsel for Appellant :- G.S.Chaturvedi,Anurag Shukla Counsel for Respondent :- Govt. Advocate,Jitendra Shanker Pandey,Seema Singh Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Ms. Nand Prabha Shukla,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Anurag Shukla, learned counsel for the appellant Nos.1 and 2, Smt. Manju Thakur, learned A.G.A. for the opposite party/ State and Sri Jitendra Shankar Pandey, learned counsel for the informant.
2. This appeal has been filed praying to set aside the judgment and order dated 09.02.1996 in Session Trial No.167 of 1993 passed by the Sessions Judge, Mathura convicting the accused Rekhpal for offences under Sections 302, 307/34 and 323/34 I.P.C., accused Vinod for offences under Sections 302/34, 307/34 and 323 I.P.C. and the accused persons Pramod and Manoj under Sections 302/34, 307/34 and 323/34 I.P.C. The accused Rekhpal had separately filed a Criminal Appeal No.575 of 1996 (Rekhpal vs. State of U.P.), which was abated by order dated 03.04.2019 on account of his death. Present criminal appeal has been filed by three accused persons namely Vinod son of Rekhpal, Pramod son of Ragghi @ Raghubir and Manoj son of Natthi. During pendency of the present appeal, the accused appellant No.3 Manoj died and as such by order dated 09.12.2019, the appeal was abated qua the accused appellant Manoj. Thus, the present appeal survives and is being pressed by learned counsel for the appellant only for the appellant Nos.1 and 2, namely Vinod son of Rekhpal and Pramod son of Ragghi @ Raghubir.
Facts:-
3. Briefly stated facts of the present case are that according to the prosecution, on 17.10.1992 at about 03:00 P.M. the injured eyewitness-PW-1 Bhikampal Singh son of Raj Pal Singh, the deceased Om Prakash, the injured eyewitnesses PW-2 Shespal Singh son of Sanwal Singh and the injured eyewitnesses PW-3 Munesh Pal @ Muniya son of Sanwal Singh were returning to their homes after working on their respective agricultural fields and when they reached on public way near the agricultural land of one Jimipal, then the accused Rekhpal with DBBL gun, his relative Manoj son of Natthi with country-made pistol, Pramod son of Raghubir @ Ragghi with country-made pistol and lathi and Vinod son of Rekhpal came on a red-colour bullet motorcycle which was being driven by the accused Vinod son of Rekhpal. Motorcycle was stopped near the aforesaid victims. Accused Vinod exhorted to take revenge and to beat. Pramod started beating Sanwaliya and when the victims ran to save Sanwaliya, then Vinod snatched country-made pistol from Pramod and fired at Munesh Pal @ Muniya. Subsequently Rekhpal fired with his DBBL gun at the back of Om Prakash. Consequently Om Prakash died on spot. Hearing the fire sound when people started coming on the spot, all the four accused persons fled away.
4. In support of the case, the prosecution examined three eye-witnesses, namely Bhikampal Singh PW-1, Shespal Singh PW-2 and Munesh Pal @ Muniya PW-3. Formal witnesses, i.e. PW-4 Dr. D.S. Verma who medically examined the injuries of Munesh Pal son of Sanwal Singh, PW-5 Investigating Officer Amarjit Singh, S.H.O. Narhauli, Mathura, PW-6 Head Constable Ramesh Chandra who entered the First Information Report, P.W.-7 Second Investigating Officer Sri Umesh Kumar Singh, S.H.O. P.S. Kagarol Agra and P.W.-8 Dr. R.C. Sharma who conducted postmortem on the body of Om Prakash (deceased), were examined by the prosecution. Thus, the prosecution examined three eyewitnesses and five formal witnesses. Statements of accused persons under Section 313, Cr.P.C. were recorded. From the defence side, three witnesses i.e. DW-1 Dr. R.B. Sharma who examined injuries of the accused persons Rekhpal Singh and Vinod, DW-2 Matindra Bhardwaj, surgeon who examined injuries of Shakuntala wife of Rekhpal Singh and DW-3 Ladan Singh, were examined. Learned Trial Court heard the matter and convicted all the four accused persons, namely Rekhpal Singh, Vinod, Pramod and Manoj awarding punishment as mentioned in the impugned judgment and order dated 09.02.1996. Aggrieved, the appellants herein have filed the present appeal.
Submissions:-
5. Learned counsel for the appellants submits as under:-
(i) There is complete absence of motive. The real incident was that as stated by the accused Rekhpal Singh in his statement dated 24.02.2005 under Section 313 Cr.P.C. PW-1, PW-2 and PW-3 are not eyewitnesses. No injury was received from country-made pistol by PW-1, PW-2 or PW-3. The evidence of PW-1, PW-2 and PW-3 are inconsistent.
(ii) The prosecution has completely failed to prove common intention for commission of the alleged offence under Sections 302/307/34 I.P.C. In the absence of common intention, the accused appellant Nos.1 and 2 cannot be convicted under Section 302 or 307 I.P.C.
(iii) The entire case of the prosecution is based on falsehood and the appellants have been falsely implicated. The evidence of PW-1, 2 and 3 does not prove common intention.
(iv) The prosecution has completely failed to explain injuries received by the accused Rekhpal Singh, Vinod and one Shakuntala, wife of Rekhpal Singh, which is fatal to the prosecution case.
(v) No case under Section 307 I.P.C. has been made out.
6. Learned A.G.A. supports the impugned judgment and order passed by the Trial Court.
7. Learned counsel for the informant submits that the motive for the offence committed by the accused was that the PW-2 purchased a land about a year before the date of incident, which the accused persons were willing to purchase and Rekhpal objected to the mutation proceedings with respect to that land. He further submits that the prosecution has established his case beyond reasonable doubt and as such, the impugned judgment and order requires no interference.
Discussion and Findings:-
8. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the appeal.
9. The eyewitness PW-1 Bhikampal Singh and the deceased Om Prakash are stated to be real brothers. The eyewitnesses PW-2 Shespal Singh son of Sanwal Singh is the cousin of the PW-3. Munesh Pal @ Muniya son of Sanwaliya and is stated to be an injured eyewitness. As per first information report, the first injury was caused to Sanwaliya, who has not been examined by the prosecution. Thus, according to the prosecution in the incident in question, Om Praksh died and Munesh Pal @ Muniya and Sanwal Singh (Sanwaliya) were injured, who were examined in Civil Dispensary Baldeo on 17.10.1992 by the PW-4 Dr. D.S. Verma and the injuries found were as under:
Injuries of Muneshpal @ Muniya:-
"1. Lacerated wound 2"x1/10" bone deep over left of head 3-3/4 above from the left ear.
2. Abraded contusion 1-1/4"x-1/4" over left foreamm outer middle part.
3. Abrasion 1-1/2"x-1/2" over right arm lower outer part.
Injuries of Sanwaliya:-
Contusion 1 1/2´´ x 1/2´´ over left leg front middle part.
10. The accused persons Rekhpal Singh, Vinod and Manoj were arrested on the day of incident i.e. on 17.10.1992 at about 06:30 P.M. by the Investigating Officer SI Amarjit Singh without any resistance from the accused persons and one licensed DBBL gun from Rekhpal Singh and one twelve bore country-made pistol allegedly from the accused Vinod and certain cartridges were recovered from them. One wooden stick (danda) in length about four balista, four angul was recovered from the accused Manoj. Bullet motorcycle bearing registration No.UHL 5211 was also recovered from them on the same day about 06:30 P.M. The accused persons were brought to police station. In his evidence in cross-examination, the PW-6 has clearly admitted that the injuries of the accused Rekhpal Singh were entered in the GD in presence of the Investigating Officer and Daroga at the police station. He stated that injuries of Rekhpal Singh were simple and as such he was not sent for medical examination, although the accused persons Rekhpal Singh and Vinod were medically examined at the District Hospital, Mathura by DW-1 Dr. R.B. Sharma, Medical Officer and the wife of the accused Rekhpal Singh, i.e. Smt. Shakuntala was examined on 22.10.1992 at the District Hospital, Mathura by DW-2 Dr. Matindra Bhardwaj, Surgeon. As per medical examination report, the injuries of the accused persons Rekhpal Singh, Vinod and Shakuntala were as under:-
Injuries of the accused Rekhpal:-
1. Scabbed abrasion 2cm x1.5cm on outer aspect of left forearm 4 cm above wrist joint. The scab is firm.
2. Scabbed abrasion 2, cmx1.5cm on front of left leg. in lower 2/3.
3. Lacerated wound-1 cm x0. 3cm x skin deep on front of right leg surrounded by abrasion in the size of 4 cm x 2 cm in lower 2/3 of front of right leg.
4. Abrasion 1 cm x 1cm on medial aspect of right leg 3 cm above the ankle joint.
Injuries of the accused Vinod:-
1. Abrasion in the area of 2cm x 1-5cm on front of right shoulder. The seat is firm and dried up.
2. Linear abrasion 1.5cm long on medial aspect of right elbow joint.
3. Laceration with firm no dried up seat 1.5cm x 1 cm left side back 3 cm above and liberaly from iliac crest.
4. Abrasion 1 5 cmx 1/2cm on front of right knee joint region.
Injuries of Shakuntala:-
1. A traumatic swelling at the dictal part of left forearm on ulna aspect size 3cm 2.5cm. Colour is deep brown.
2. A traumatic swelling at the lateral aspect of left elbow joint 4cm x 3cm. Colour is deep brown.
3. An abraded contusion with scab formation in the back of lower part of left chest size 6cm x2.5cm. Colour is deep brown.
4. An abraded contusion with scap formation on the back of lower part of right chest size 4cm x 2cm Colour is deep brown.
11. The DW-1 and DW-2, both have proved the injuries of the aforesaid three accused persons and opined the injuries to be simple.
12. The injuries of PW-3 Munesh Pal @ Muniya and one Sanwaliya were proved by PW-4 Dr. D.S. Verma who opined that injury Nos.2 and 3 of Munesh Pal @ Muniya are simple caused by friction or by blunt weapon and the injury No.1 needs observation. In his evidence, he further stated that the injury Nos.1 and 2 of Munesh Pal @ Muniya are possible by lathi. He stated that injury No.3 may be caused by rubbing of a bullet but in his cross-examination, he admitted that this injury cannot be caused by pellets and this injury may be self made. With regard to the injuries of Sanwal Singh, he stated that the injury is simple caused by blunt object. Thus, the case of the prosecution that the accused Vinod fired at Munesh Pal @ Muniya from country-made pistol of twelve bore is not corroborated with medical report. Any injury caused by a twelve bore country-made pistol was neither found on the body of Munesh Pal @ Muniya nor it could be proved. Thus, the use of country-made pistol by the accused Vinod to cause injury to Munesh Pal @ Muniya son of Sanwaliya could not be proved by the prosecution.
13. The postmortem on the body of the deceased Om Prakash was conducted by PW-8 Dr. R.C. Sharma on 18.10.1992 at 12'O clock and following ante-mortem injuries were found by the doctor on the body of the deceased Om Prakash:
1. Multiple fire arm wounds in an area of 5. 5. cm x 7cm (five half x seven) of entry (size varying 1.5cmx 1cm to 3. 5cm x 2 cm on the back of chest (scapular wall just infront of scapular region below shoulder on top and 10 cm lateral (lft) from midline and back, bone (total number of wounds five including the five one noted above.
Metallic pellets five in number were also recovered from the back of chest wall on right side of scapular region upper part of chest.
It was opined by the doctor that death might have taken place about one day before and he found pasty food in the intestines. It has also been opined by the doctor that the death of the deceased had taken place on account of shock and haemorrhage on account of ante mortem injuries.
14. The postmortem report was proved by PW-8 who in his cross-examination, has also opined that weapon would have been fired from a distance of more than twelve feet. He also stated that five large pellets (exhibits 23 to 27) were found from the body of the deceased. He also stated that there was no blackening and the weapon would have been fired from the backside of the deceased.
15. In his evidence in cross-examination, the PW-5 has stated that in the site plan, he has not shown the place from where gun was fired and whether the blood was found on the earth. He also stated that he has not mentioned in the site plan regarding blood found on the earth. He stated that he has not sent the gun and cartridges to ballistic expert for examination. The DW-3 Head Constable Ladan Singh, Sadar Malkhana, Mathura has stated that there is no entry in the malkhana register for sending the recovered gun to ballistic expert for examination. No ballistic expert report with regard to the gun and cartridges recovered were filed by the prosecution during trial.
Section 34: Common Intention:-
16. Section 34 of the I.P.C. reads as under:
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
17. In the case of Malkhan Singh vs. State (1975) 3 SCC 311 (Para-7), Hon'ble Supreme Court held that no vicarious liability under Section 34 of the I.P.C. can be fastened on accused for the shot fired by another accused to kill the deceased in the absence of furtherance of common intention shared between the accused inasmuch as intention to fire was not shared.
18. In the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P. (2003) 12 SCC 306 (Paras 11 & 12), Hon'ble Supreme Court explained the meaning of "common intention" with reference to Section 34 I.P.C. and held as under:-
"11.The Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co- conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. ...................... The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply.
12. "Common intention" implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this Section 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. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrit Singh and Ors. v. State of Punjab (1972) Crl.L.J. 465 (SC) it has been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Maqsoodan and Ors. v. State of U.P. (AIR 1983 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda sarma and Ors. v. The State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community of designs is proved against him (See Malkhan and Anr. v. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of "effecting that felony. (Russel on Crime 12th Edn. Vol.I pp.487 and488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat (AIR 1965 SC 1260) this Court has interpreted the word "furtherance" as 'advancement of promotion'."
(Emphasis supplied)
19. In the case of Suresh v State of U.P., (2001) 3 SCC 673, Hon'ble Supreme Court held as under:
"24. ...................... Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
xxx xxx xxx
40. .................. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention.Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. ................."
(Emphasis supplied)
20. In the case of Lallan Rai v. State of Bihar, [(2003) 1 SCC 268], Hon'ble Supreme Court held as under:
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
(Emphasis supplied)
21. In the case of Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126], Hon'ble Supreme Court held as under:
"24. .................The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
(Emphasis supplied)
22. In the case of Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1), it was held, as under:
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34 includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a 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 action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
23. In the case of Mahbub Shah v. Emperor (AIR 1945 PC 118), it was held, as under:
"........... To invoke the aid of S. 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. ........"
24. In the case of Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605], Hon'ble Supreme Court held as under:
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."
25. In the case of Krishnan & Another v. State of Kerala [(1996) 10 SCC 508], Hon'ble Supreme Court held as under:
"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
26. In the case of Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110], Hon'ble Supreme Court held as under:
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture...."
27. In the case of Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620], Hon'ble Supreme Court held as under:
"8. ........... The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
(Emphasis supplied)
28. In the case of Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305], Hon'ble Supreme Court held as under:
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of 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.......... "
(Emphasis supplied)
29. In the case of Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC 120)], Hon'ble Supreme Court held as under:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. Section 34 also deals with constructive criminal liability. .............
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
(Emphasis supplied)
30. In the case of Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)], Hon'ble Supreme Court held as under:
"87. ............ Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. ............ The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
31. In Jasdeep Singh @ Jassu vs The State Of Punjab (2022) 2 SCC 545 (paras 19 to 27), Hon'ble Supreme Court considered its various earlier judgments relating to Section 34 I.P.C. and held as under:
"19. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
20.Section 34 IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
21.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34 IPC does not get attracted.
24.Normally, in an offense committed physically, the presence of an accused charged under Section 34IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
25.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
26.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
27.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court."
(Emphasis supplied)
32. In Gulab vs. State of Uttar Pradesh, (2022) 12 SCC 677 (Paras 20, 23, 27.1, 27.2, 27.3, 27.4 and 28), Hon'ble Supreme Court has held as under:-
"23. The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular weapon is not sufficient to impeach the credible evidence of the direct eyewitnesses.
27.Emphasizing the fundamental principles underlying Section 34, this Court held that:
27.1 Section 34 does not create a distinct offence, but is a principle of constructive liability; 27.2 In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done; 27.3 There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and 27.4 The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime."
(Emphasis supplied)
33. In Nagaraja vs State Of Karnataka, (2008) 17 SCC 277 (Paras 18 and 19), Hon'ble Supreme Court held as under:
"18. For invoking the provisions of Section 34 of the IPC, at least two factors must be established; (1) common intention, and (2) participation of the accused in the commission of an offence. For the aforementioned purpose although no overt act is required to be attributed to the individual accused but then before a person is convicted by applying the doctrine of vicarious liability not only his participation in the crime must be proved but presence of common intention must be established. It is true that for proving formation of common intention, direct evidence may not be available but then there cannot be any doubt whatsoever that to attract the said provision, prosecution is under a bounden duty to prove that participants had shared a common intention. It is also well settled that only the presence of the accused by itself would not attract the provisions of Section 34 of the I.P.C. Other factors should also be taken into consideration for arriving at the said conclusion. Accused persons were not related to each other; they did not have any family connection; they have different vocations. It has not been established that they held any common animosity towards the deceased.
19. A general and vague statement made by one of the prosecution witnesses would not prove motive. It may be true that the common intention may develop suddenly at the spot but for the said purpose, the genesis of the occurrence should have been proved. The prosecution has failed to establish why and how a quarrel has started. The prosecution even has not proved as to why the accused No. 1 was carrying the iron rod even before the quarrel with the deceased started or as to whether the appellant was aware of this. It has also not been shown that he along with other accused persons came to assault the deceased. Appellant ordinarily was expected to be at his work place only. His presence at the spot, therefore, has sufficiently been explained."
(Emphasis supplied)
34. Thus, Section 34 I.P.C. does not create a distinct offence, but is a principle of constructive liability. In order to incur a joint liability for an offence there must be a pre-arranged and pre-mediated concert between the accused persons for doing the act actually done. For the applicability of Section 34 I.P.C., it is not that the prosecution must prove that an act was done by a particular person inasmuch as the provision is intended to cover cases where a number of persons act together and on the facts of the case. Thus, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion. The words "common intention" implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. 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. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Common intention has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused persons had a common intention to commit offence for which they can be convicted. Therefore, to attract the provisions of Section 34 I.P.C., it must be shown that (a) criminal act is done by several persons; (b) such act is done in furtherance of the common intention of all; and (c) each of such persons is liable for that act in the same manner as if it were done by him alone. While first two acts are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. But it must be kept in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. Mens rea may be coincidental with or collateral to the "common intention" but they are distinct and different. The common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence but this will always depend on the facts and circumstances of the case. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. The duty is of the prosecution to prove existence of common intention. It is for the court to determine it on the basis of the evidence placed before it. This is the effect of Section 34 I.P.C. that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. Presence of common intention or the sharing of common intention is the prerequisite to invoke Section 34 I.P.C. If in a given case, common intention to fire was not shared, then no vicarious liability under Section 34 I.P.C. can be fastened on an accused for shot fired by another accused to kill the deceased in the absence of furtherance of common intention shared between the accused when the common intention to fire was not shared.
35. It is the case of the prosecution that the PW-1 Bhikampal Singh is the cousin of PW-2 Sheshpal Singh and P.W.-3 Muneshpal @ Muniya. All the three have their separate agricultural land as evident from the evidence of PW-2 Sheshpal Singh who stated in his cross-examination that he, his brothers and the deceased Om Prakash have cut millet from their respective agricultural land and he and his father have cut one bigha millet whereas Om Prakash and Bhikampal Singh have cut millet three fourth of a bigha. The PW-2 in his cross-examination has stated that:
"..... मेरी मुलजिमान से खेत की रंजिश है। और कोई रंजिश नहीं है। ............... उस जमीन का दाखिल खारिज का मुकदमा लक्ष्मी से चला था जिसे मुलजिमान ने चलवाया था। उससे मुलजिमान ने अपने नाम से कोई एतराज नहीं दाखिल नहीं किया था। लेकिन लक्ष्मी की पैरवी करते थे। ............ मैने दरोगा जी को बताया था कि मुलजिमान वही खेत खरीदना चाहते थे जो मैने खरीदा है। .........खेत का झगड़ा कत्ल से 3-4 महीने पहले का था। ............ पुरानी इनसे कोई रंजिश नहीं है .........
.......... मैने और मेरे भाईयों ने बाजरा काटा था। ओम प्रकाश ने भी बाजरा काटा था। उसने अपने खेत में काटा था और मैने अपने खेत में काटा था।
चारो मुलजिमान एक मोटर साईकिल से आये थे। उस पर एक लम्बी सीट थी। चारो एक ही लम्बी सीट पर थे। मैने मुलजिमानों को मय हथियार के एक खेत की दूरी पर आते देख लिया। मुलजिमान ने 5-6, 7-8 कदम की दूरी से मोटर साईकिल रूकी, उतर कर कहा कि मारो सालो को। ओमप्रकाश, मुनेश और सोवलिया साथ-साथ थे और उससे 2-4 कदम की दूरी पर हम लोग थे। फिर उन्होंने तुरन्त मारना शुरू कर दिया इसलिये भागने का मौका ही नहीं था। सबसे पहले मेरे पिता को लाठियों से मारा था। पास आकर मेरे पिता को लाठी से मारा। उस समय बाकी मुलजिमान मेरे पिता के पास ही थे। मुनेश को लाठी और तमन्चा दोनों से मारा था। मुनेश को एक ने लाठी मारी और दूसरे ने तमन्चा आगे पीछे मारा। जैसे ही लाठी मारी, तुरन्त ही फायर हो गया। हम लोग आगे बचाने के लिये बढ़े भागे नहीं। जिस समय लाठी से मुनेश और सामलिया को मार रहे थे उस समय रेखपाल 6-7 कदम की दूरी पर था। वहीं से उसने फायर कर दिया। मुझे किसी ने नहीं मारा और न किसी ने मारने के लिये कहा। विनोद ने यह कहा था कि बदला ले लो। उसका मतलब था कि खेत को हम कटने नहीं देगें। मैने पिछली तारीख को अदालत को ब्यान दिया था कि मोटर साईकिल हम लोगों के पास आकर रूकी तो विनोद बोला आज बदला ले लो। इस पर प्रमोद ने मोटर साईकिल से उतर कर सोवल सिंह को मारना शुरू कर दिया। बदला लेने वाली बात विनोद ने मोटर साईकिल से उतरते हुए कही थी। मुनेश को पहले लाठी लगी फिर तमन्चा मारा। मुनेश को केवल एक लाठी मारी थी। लाठी मारने वाले मुनेश के पास से हटा नहीं था। मुनेश पर 2-4 कदम से फायर किया था। उस समय हम लोग मुनेश के पास ही थे चीख पुकार कर रहे थे। मुनेश पर दो फायर हुआ थे। एक मनोज ने एक विनोद ने किया था। मुनेश को एक फायर सिर में लगा था और एक हाथ में लगा था। किसी ने भी रेखी व उसकी पत्नी को नहीं मारा था। मैने उनके शरीर पर चोट नहीं देखी। मुझे मालूम पड़ा था कि रेखी उसी दिन गिरफ्तार हो गया। यह नहीं मालूम कि वह थाने रिपोर्ट करने गया था तभी गिरफ्तार हुआ था। मौके पर कोई छर्रा, टिकली या कारतूस नहीं मिला था। दरोगा जी ने केवल एक जगह से खून वाली मिट्टी ली थी।"
36. Thus, as per own case of the prosecution, strained relationship was on account of some agricultural land purchased by the PW-2. The reason for strained relationship has been alleged to be that the accused wished to purchase the said land but it was purchased by the PW-2. Thus the alleged cause of strained relationship could be only against PW-2 Shespal but the PW-2 has himself stated in his cross examination that neither anyone exhorted to beat him nor anyone has beaten him. He also stated that the accused Vinod has spoken to take revenge. He further stated in his cross examination that by the word "revenge" he mean that he (Vinod) will not allow the crop to cut. This statement indicates that there arose some dispute between two groups on the issue of cutting of some crop. Thus, the very genesis of the motive assigned by the prosecution against the accused for commission of the offence in question, itself appears to be doubtful. There is nothing on record to show that apart from the aforesaid allegation of strained relationship, there is any other cause for strained relationship. The PW-1 in his cross-examination has stated that the PW-2 was present on the spot when the incident occurred and the accused Rekhpal Singh has not fired at the PW-2 Sheshpal and none beaten Shespal. He alleged that the accused Vinod exhorted to beat. In his cross-examination, he stated that "उस दिन या उससे पहले हमारा मुलजिमान से कोई झगड़ा नहीं हुआ था।" PW-3 Munesh Pal @ Muniya has also assigned the role of exhortation to the accused Vinod who exhorted only to beat to take revenge.
37. Thus, the evidence of PW-1, PW-2 and PW-3 is that the accused Vinod exhorted to beat. The PW-1 has admitted that on the date of occurrence of the incident or prior to that, he was having no enmity with the accused. The PW-2 has stated the cause of strained relationship between him and the accused that he purchased an agricultural land which the accused wanted to purchase, but no evidence in this regard were led or particulars were disclosed except making allegations. The PW-2 in his cross-examination himself admitted that none has beaten him nor anyone exhorted to beat him. He further explained in his statement that Vinod exhorted to take revenge, which he meant that millet crop shall not be allowed to cut (खेत को हम कटने नहीं देंगे). Thus, the exhortation alleged by PW-1, PW-2 and PW-3 is only against the accused Vinod that he exhorted to beat. None of the alleged eyewitnesses, namely PW-1, PW-2 and PW-3 have stated that the accused Vinod exhorted to kill. According to their own evidence, the accused started beating by danda/ lathi and subsequently the accused Rekhpal Singh fired at deceased Om Prakash from the backside. No exhortation to kill the deceased Om Prakash has been alleged against the accused appellants. Instead, in his cross-examination; the PW-2 himself stated that neither any accused exhorted to beat him nor any accused beaten him while he was standing 2-3 steps away from the accused. This firstly goes to show that there was no exhortation by any of the accused against the main person PW-2 nor the accused Vinod, as per own case of the prosecution; exhorted to kill any person and instead he merely exhorted to beat.
38. Thus, in such facts and circumstances, the ingredients of Section 34 I.P.C., i.e. the common intention to kill the deceased Om Prakash is not established from the evidences. At best, as per prosecution case, the exhortation was to beat. No evidence was led by the prosecution that during the course of alleged beating, any of the accused appellants herein have exhorted or instigated the accused Rekhpal Singh to kill the deceased Om Prakash. In such facts and circumstances, even if it is assumed that the accused Rekhpal fired by his licensed DBBL gun to kill Om Prakash, then it was an unilateral act of the accused Rekhpal. Thus, the alleged gun shot injury allegedly caused by the accused Rekhpal to the deceased Om Prakash, is not in furtherance of common intention shared by the accused appellants Vinod and Pramod. In the absence of any common intention of the accused anterior in time to kill the deceased, showing a pre-arranged plan and prior concert. No evidence could be led by the prosecution to establish a prior conspiracy or pre-meditation or common intention formed either prior to or in the course of occurrence of the crime, to kill the deceased Om Prakash. In the absence of meeting of minds or sharing of common intention by the accused appellants to kill the deceased, Section 34 I.P.C. could not be invoked. Consequently, the accused appellants cannot be convicted under Section 302 I.P.C. inasmuch as it is not the case of the prosecution that the accused appellants have killed the deceased Om Prakash.
39. Apart from above, we also find that as per case set up by the prosecution, the grievance of the accused persons was mainly against the PW-2 Shespal who, as per prosecution case; purchased same land which the accused Rekhpal wished to purchase, but the PW-2 Shespal himself has stated in his cross-examination that neither any one exhorted to beat him nor any one has beaten him. This also renders the prosecution story regarding the alleged exhortation against the accused appellant No.1 to be doubtful.
Whether the accused appellant No.1 - Vinod and/ or the accused appellant No.2 Pramod have committed offence under Section 307/34 I.P.C. :-
40. The trial court framed charges against the accused appellant No.1 Vinod on 18.08.1993 for the offences under Section 302/34 I.P.C. and also under Section 307/34 I.P.C. for causing fire arm injury to Muneshpal @ Muniya. He was also charged that he along with the co-accused Pramod hurt to Sanwaliya by means of lathi.
41. Similar charge on the same day was framed against the accused appellant No.2 - Pramod.
42. The PW-1 Bhikampal (informant) in his Examination-in-Chief has stated that Pramod has beaten his uncle Sanwaliya by lathi. He further stated that accused Vinod had taken away country-made pistol from the accused Pramod and fired at the PW-3 Muneshpal @ Muniya with intention to kill. In his cross-examination, the PW-3 stated that none has beaten the PW-2 Shespal nor fired at him, that the accused Pramod has beaten Sanwal by danda and accused Vinod has fired at Muneshpal @ Muniya and the Muneshpal @ Muniya received gun-shot injury in his both hands and also received injuries of lathi at his forehead, that country-made pistol was not loaded after the accused came. He also stated in his cross-examination that it is not only accused Pramod who beaten Sanwaliya by lathi. The alleged injured Sawanliya was not examined.
43. The PW-2 Shespal has also assigned to the accused Pramod the role of beating with lathis to Sanwal. He assigned the role to the accused Vinod of fire by a country-made pistol causing injuries to the PW-3 Muneshpal @ Muniya. In his cross-examination, he stated that he was standing at a distance of 2-4 steps away from the deceased Om Prakash, injured Muneshpal and Sanwaliya who all the three were together, Muneshpal received one injury by lathi and another injury by tamancha (country-made pistol). He stated that the accused Pramod beaten Sanwaliya by lathi but has not stated that who beaten the PW-3 Muniya. In his further cross-examination, he stated that the accused Vinod and the accused Manoj, both have fired on Muneshpal. The injured eyewitness PW-3 Muneshpal @ Muniya son of Sanwaliya in his Examination-in-Chief has assigned the role to the accused Pramod for beating Sanwaliya by danda/ lathi. He assigned the role to the accused Vinod to fire at him by tamancha (country-made pistol) and also by the accused Manoj. In his cross-examination, he stated that the accused Vinod fired at his right hand whereas the accused Manoj fired at his left hand and the head. Thus, in his cross-examination, he confined the role of accused Vinod to fire at his right hand only and to the accused Manoj to fire at his left hand and head.
44. The PW-4 Dr. D.S. Verma, Medical Officer In-charge, Civil Hospital, Baldeo who examined the injuries of PW-3 has found the injury Nos.2 and 3 i.e. the injuries in the left forearm and right arm to be simple by friction or by blunt weapon. He found the injury No.1 on the head of the PW-3 Muneshpal. In his cross-examination, he stated that the injury No.3 may be caused by abrasion of a bullet but it cannot be caused by pellets. He also opined that it may be self-made injury.
45. The first Investigating Officer P.W.-5 Amarjit Singh Sarna has stated in his cross-examination that as per recovery memo dated 17.10.1992, the DBBL Gun No.1522-87 (licensee gun) was recovered and in its barrel, one 12 bore cartridge and one 12 bore khokha (empty cartridge) was found. He shown recovery of 12 bore tamancha (country-made pistol) from the accused Vinod and in its barrel, he found one khokha of 12 bore. He also recovered some cartridges also. He stated that the accused have given no resistance at the time of arrest. He stated that he has not shown in site map that from where the gun was fired or where he found blood on the earth nor he has made any mention of blood found at the place of incident. In his further cross-examination, he stated that he has not sent the gun and cartridges for examination by ballistic expert. He admitted that seal of katta/tamancha and cartridges recovered from the accused Vinod, bears only his signature.
46. PW-7 Umesh Kumar Singh S.H.O. -- second Investigating Officer has stated that the gun was sent from police station to ballistic expert for examination. But the ballistic expert report has not been filed in evidence by the prosecution nor it has been stated that any ballistic expert report has been obtained or received. He further stated in his Examination-in-Chief that Muneshpal @ Muniya has made a statement that luckily he has not received any gun-shot injury.
47. The PW-8 Dr. R.C. Sharma has stated in Examination-in-Chief that he was posted on 18.10.1992 at District Hospital, Mathura and he has conducted post-mortem. He proved the injuries received by the deceased Om Prakash and stated that it was a gun-shot injury and five large pellets were found in the body of Om Prakash.
48. As per evidence of PW-1, PW-2 and PW-3, the injury by a fire arm (tamancha) was caused by the accused Vinod in the right arm of the PW-3 (Muneshpal @ Muniya). This evidence does not find support from the scientific evidence, i.e. the evidence of PW-4 who opined that the injury caused in the right arm is a simple injury, which is possible by lathi. Thus, the prosecution has completely failed to establish any fire arm injury on the right arm of the PW-3 Muneshpal @ Muniya whereas the case set up by the prosecution against the accused appellant Vinod was that the accused Vinod had caused gun-shot injury by a tamancha to the PW-3. The injury No.2 caused in the left arm of PW-3 Munesh was also found by the PW-4 to be simple injury, possible to be caused by lathi. So far as the injury on the head of the PW-3 Muneshpal is concerned, the PW-4 stated in his evidence that it can be caused by abrasion of a bullet but it cannot be caused by pellets and this injury may be a self made injury. The PW-4 himself has ruled out the possibility of the injury No.1 to be by pellets. He further expressed that this injury may be self made. Therefore, it is extremely doubtful and totally unproved that the accused Vinod has fired at the PW-3 Muneshpal @ Muniya by a country-made pistol with intent to cause death.
49. The injury allegedly caused by the accused Vinod at the right arm lower outer part of the PW-3 Muneshpal @ Muniya is a simple injury which cannot constitute offence under Section 307 I.P.C. It could not be proved by the prosecution that the injury allegedly caused by the accused Vinod by danda was with intent to cause death of the PW-3 Muneshpal @ Muniya. Therefore, the accused appellant No.1 Vinod cannot be convicted for offence under section 307 I.P.C.
50. The PW-1, PW-2 and PW-3, all have made allegations against the appellant No.2 that he had beaten Sanwaliya by a danda/ lathi. It was stated that he had hit by lathi to Sanwaliya two or three times. The injury of Sanwaliya as examined by the Medical Officer, In-charge, Civil Dispensary, Baldeo, District Mathura on 17.10.1992 is the contusion 1-1/2´´ x 1/2´´over left leg middle part. The Medical officer opined that the injury is simple and caused by some blunt object. The injuries of Sanwaliya as found by the Medical Officer while examining his injuries, are not on any vital part of the body of Sanwal Singh. Evidence of alleged eyewitnesses, i.e. PW-1, PW-2 and PW-3, does not contain any material which may indicate existence of ingredients of Section 307 I.P.C. on account of the injury allegedly caused by the accused appellant Pramod to the injured Sanwaliya (Sanwal Singh). Thus, no offence under Section 307 I.P.C. has been committed by the accused Pramod.
Whether the accused appellant No.1 and the appellant No.2 are guilty of offences under Section 323 I.P.C.:-
51. Evidence of PW-1, PW-2 and PW-3 are consistent to the effect that simple injuries by lathi/ danda was caused by the accused appellant No.1 Vinod on the right arm of the injured Muneshpal @ Muniya and the accused appellant No.2 caused simple injury on the left arm of the injured Muneshpal @ Muniya and on the leg of the injured Sanwaliya by lathi. The injuries so received have also been proved by the PW-4, i.e. The Medical Officer who examined the injuries. Under the circumstances, we hold that the accused appellant No.1 and the accused appellant No.2 are guilty of committing offences under Section 323 I.P.C. Accordingly their conviction under Section 323 I.P.C. for three months' RI under the impugned judgment and order dated 09.02.1996 in Session Trial No.167 of 1993 (State vs. Sri Rekhpal and 3 others) passed by the Sessions Judge arising out of Case Crime No.150 of 1992, P.S. Baldeo, District Mathura passed by the Session Judge, Mathura, is upheld.
52. In result, the appeal of the accused appellant No.1 and the accused appellant No.2 are partly allowed. The conviction of the accused appellant No.1 Vinod under Section 302/34, 307/34 I.P.C. and the conviction of the accused appellant No.2 under Section 302/34 and 307/34 I.P.C. by the impugned judgment and order dated 09.02.1996 in the aforesaid Session Trial No.167 of 1993 arising out Case Crime No.150 of 1992, P.S. Baldeo, District Mathura is hereby set aside and both are acquitted of the charge of offence under sections 302/34 and 307/34 I.P.C. The conviction of the accused appellant No.1 Vinod under section 323 I.P.C. and sentence of three months' R.I. is affirmed. The conviction and sentence of the appellant No.2 Pramod is altered and he is convicted under Section 323 I.P.C. instead of Section 323/34 I.P.C. and sentenced to three months' RI. If the accused appellant No.1 and the accused appellant No.2 have not undergone imprisonment for three months either during trial or during pendency of this appeal, then they shall surrender forthwith before the court concerned and shall be sent to jail to undergo the sentence under Section 323 I.P.C. awarded by the trial court and affirmed by us. In the event, they have already completed three months' sentence, then they need not to surrender or to be arrested. Their personal bonds and sureties shall be cancelled.
53. Office is directed to communicate this order to the court concerned forthwith for compliance and also send back the trial court record.
Order Date :- 24.07.2023 NLY