Rajasthan High Court - Jaipur
Moola Ram And Ors. vs State Of Rajasthan on 19 February, 1987
Equivalent citations: 1987(1)WLN413
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT Shyam Sunder Byas, J.
1. By his judgment dated July 31, 1982, the learned Sessions Judge, Churu convicted and sentenced the appellant Moola Ram and Loonaram as under:
S.N. Name of accused offence Under Section Sentence awarded (1) Moolaram 302, I.P.C. Imprisonment for life with a fine of Rs. 50/- in default of the payment of fine to further under two months' R.I. (2) Loona Ram 325, I.P.C. Two years RI. with a fine of Rs. 50/-, in default of the payment of fine to further undergo two months like imprisonment 323, I.P.C. Six months rigorous impri- sonment.
Substantive sentences of appellant Loonaram were directed to run concurrently. The appellants have filed this joint appeal and challenge their conviction.
2. Briefly recounted, the prosecution case is that the deceased-victim Khetdas Swami bad purchased a field measuring 33 Bighas from one Gajanand, situate in Rohi Pansisar P.S. Bavipura district Churu. He was in possession of it and was cultivating it at the relevant times in July, 1981. At about 9.00 a.m. on July 11, 1981, Khetdas and PW 3 Sugnaram Jat were there in the aforesaid field and were talking to raise some constructions there in. The appellants accompanied with Tulsaram and Khinyaram came there. Loonaram had a Kassi while the remaining three had lathis. They made an assault on Khetdas and Sugnaram. Accused Loonaram struck blows with the reverse side of his Kassi on the hand and back of Sugnaram. Sugnaram fell down. They, thereafter, struck blows with their weapons to Khetdas. Both the victims raised cries, hearing which PW 1 Cholaram Jat and PW 4 Loonasingh, who were working in their fields nearby, rushed to the spot. On their arrival, the four miscreants left the field. Khetdas succumbed to the injuries and passed away instantaneously on the spot. Cholaram and Loonsingh took Sugnaram to his house, from where he was taken in a camel-cart to the Police Station, Bhanipuram, where they reached at about 12 30 p.m. in the noon of the same day and verbally lodged report of the incident. The police registered a case under Sections 302, 447 and 323, I.P.C. against Loonaram, Tulsaram, Moolaram and Khinyaram. The Station House Officer Jainarain Singh (PW 10) arrived on the spot and inspected the site. The dead body of Khetdas was lying in the field. He prepared the inquest report and the Panchnama of the dead body. The post-mortem examination of the victim's dead body was conducted on July 12, 1981 on the spot by PW. 11 Dr. Faujdar the then Medical Officer Incharge, Government Hospital, Sardarshahar. He noticed the following injuries on the victim's dead body:
(1) Swelling 6 cm. x 4 cm. on occipital region;
(2) Contusion 2.5 cm. x 3 cm. on posterior wall of abdomen;
(3) Lacerated wound 3 cm. x 1 cm. on upper anterior 1/3 of right leg;
(4) Lacerated wound 5 cm. x 1 cm. on middle anterior 1/3rd of right leg;
(5) Lacerated wound 3 cm. x 3 cm. on middle anterior 1/3rd of left leg;
(6) Lacerated wound 4 cm. x 2 cm. on back of heal;
(7) Contusion 6 cm. x 2.5 cm. on middle lateral 1/3rd of left thigh;
(8) Fracture, occipital bone, linear 3 cm. x 0.25 cm.;
(9) Contusion 5 cm. x 2 cm. on right chest, Laterally at site of 5, 6 & 7th rib;
(10) Contusion 6 cm. x 2 cm. on left hypochendrum;
(11) Fracture of ribs 5,6, and 7th at site of injury No. 9.
Injury No. 8 was the result of injury No. 1 and injury No. 11 was the result of injury No. 9. The doctor was of the opinion that Khetdas died on account of shock and haemorrhage caused by rupture of spleen and right lung. The post-mortem examination report prepared by him is Ex. P 22. The injuries of Sugnaram were also examined by Dr. Faujdar. He found two injuries caused by blunt weapon on his left fore-arm and left palm, and dorsum. On X-ray examination, fracture of ulna bone was detected, which was the result of injury No. 1. The injury report and the report of X-ray finding are Ex. P 28 and Ex. P 29. The four miscreants were rounded up and in consequence of the informations furnished by them, Kassi and lathis were recovered. After when the investigation was over the police presented a crime-sheet against Loonaram, Tulsaram, Moolaram and Khinyaram in the Court of Munsif cum-Judicial Magistrate, Sardarshahar, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302, in alternative under Section 302/34, 325/44, 323/34 and 447, I.P.C. against all of them, to which they pleaded not guilty and claimed to be tried. The defence taken by them was that the field in dispute was in their possession and they have been falsely implicated to deprive them of the field. They denied their complicity in the commission of the murder of Khetdas. In support of its case, the prosecution examined eleven witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of the trial, the learned Sessions Judge recorded his findings that: (1) there was no common intention between the four accused to commit the murder of Khetdas, (2) it was accused Moolaram who had inflicted blows to Khetdas and there by caused his death. He alone was responsible for causing his death and as such, he committed the offence under Section 302, I.P.C., (3) accused Loonaram caused simple and grievous injuries to PW. 3 Sugnram, (4) accused Tulsaram and Khinyaram, though present on the spot, took no part in the incident and hence were not liable directly or vicariously, for committing the murder of Khetdas or causing injuries to Sugnaram, and (5) the field, in which the incident took place, was not in possession of Khetdas. It was in possession of the accused persons. As a result of the aforesaid findings, the accused Tulsaram and Khinyaram were acquitted of the offences they were charged with. Accused Moolram was convicted and sentenced under Section 302, I.P.C. while accused Loonaram was convicted sentenced under Sections 323 and 325, I.P.C. as mentioned at the very out-set. Aggrieved against their convictions, Moolaram and Loonaram have taken this appeal.
3. We have heard Mr. N. Gaur learned Counsel for the appellant and the learned Public Prosecutor. We have also gone through the case file carefully.
4. Mr. Gaur did not challenge the opinion of PW 11 Dr. Faujdar relating to the cause of death of Khetdas and number and nature of injuries sustained by the injured witness Sugnaram PW 3. We have also gone through the statement of doctor Faujdar and find no reasons to distrust his opinion. The death of Khetdas was homicidal. PW 3 Sugna Ram sustained two injuries, one of which was simple and the other grievous.
5. Learned Counsel for the appellants also did not challenge the conviction of accused Loonaram for the offences punishable under Sections 323 and 325, I.P.C. He confined his contention for this accused only to the extent of the sentence awarded to him. We will deal this matter of sentence later on.
6. In assailing the conviction of accused Moolaram, Mr. Gaur raised a simple but quite forceful and penetrating contention that the prosecution has utterly failed to prove that the fatal injuries which caused the death of Khetdas, were inflicted by this appellant, it was argued that the prosecution has examined three ocular witnesses of the incident, viz. PW 1 Cholaram PW. 3 Sugnaram and PW 4 Loonsingh. PW 1 Cholaram turned hostile and lent no support to the prosecution. PW 3 Sugnaram and PW 4 Loonsingh, no doubt, stated that accused Moolaram struck blows with his lathi to Khetdas, but they did not state that the injuries, which caused the death, were inflicted by him. PW 11 Dr. Faujdar staled that injury numbers 1 and 9 along with their corresponding internal injuries number 8 and 11 were the only injuries which were sufficient in the ordinary course of nature to cause death. The two eyewitnesses supporting the prosecution did not state that injuries No. 1 and 9 were inflicted by the accused Moolaram. As such, the conviction of accused Moolaram is wholly erroneous and unsustainable. He could be convicted only under Section 323, I.P.C. and for no other graver offence. It was further argued by him that when the three named assailants were acquitted and Section 34, I.P.C. was held not applicable, accused Moolaram cannot be, now, convicted under Section 302 with the aid and applicability of Section 34, I.P.C. In support of his contention, he placed reliance on Baul and Ors. v. State of Uttar Pradesh .
7. It was, on the other hand, contended by the learned Public Prosecutor that as per finding of the Court below, Moolaram alone was the assailant of Khetdas. It should be therefore, inferred that it was he who had caused fatal injuries to Khetdas. His conviction under Section 302, I.P.C. is therefore, proper and unquestionable. It was also argued that even if the appellant Moolaram is not held to be the author of fatal injuries caused to Khetdas, he can be convicted under Section 302 with the aid of Section 34, I.P.C. There is no legal bar in adopting this course. We have taken the respective submissions into consideration.
8. The first pertinent question which arises for our deliberation is whether the finding of the Court below that it was the appellant Moolaram who alone had inflicted blows to the deceased-victim is correct. We have carefully gone through the entire record and are of the considered opinion that the finding is erroneous and unsustainable. PW 3 Sugnaram is an injured witness It was he who lodged the FIR Ex. P. 11. In Ex.P. 11, which was lodged promptly after the incident, it has been clearly mentioned by him that the four named miscreants came to the place of the incident and made a joint and concerted attack on Khetdas. It has been further mentioned that all of them inflicted blows to Khetdas. PW. 1 Cholaram, PW 3 Sugna Ram and PW 4 Loon Singh, in their police statements, with which they were confronted, stated that all the four named miscreants made a joint and concerted attack on Khetdas and inflicted blows to him. This version mentioned in FIR Ex P. 11 and the police statements of these three witnesses was later on given-up in the course of trial. During trial, PW 1 Cholaram turned hostile. PW 3 Sugnaram, who is an injured witness, in his examination-in-chief, stated that all the four miscreants made a joint assault on Khetdas and inflicted blows to them with their weapons. However, in cross-examination he stated that only accused Moolaram and Khinyaram (Khinyaram is not appellant before us) inflicted blows to Khetdas. In his cross-examination, he further very clearly admitted that he is unable to recollect as to on which part of the body of Khetdas, accused Moolaram struck blows with his Lathi. To quote him in his own words:
;g iwjk /;ku ugh gS fd ewykjke ds gkFk dh pksV [ksrnkl ds dgka yxh A Likewise, PW 4 Loonsingh stated that when he rushed to the spot, he found Khetdas lying in the field and accused Moolaram inflicting blows to him with his Lathi. In his cross-examination, he stated that he had seen accused Moolaram striking two or four blows with a Lathi to Khetedas. But be is unable to recollect as to on which part of his body these blows were inflicted. To quote him in his own words:
eSus lkS iko.M+s ls ekjihV djrs ns[kk Fkk blfy, ugh dg ldrh fd ykBh dh pksV dgka yxh A He has admitted the presence of the other accused persons in the field.
9. It is, thus, apparent that PW 3 Sugnaram and PW 4 Loonsingh, who have lent support to the prosecution story, did not state that the fatal injuries i.e. injuries No. 1,8,9 and 11 of Khetdas were inflicted by accused Moolaram. The learned Sessions Judge has convicted accused Moolaram simpliciter under Section 302, I.P.C. on the assumption that it is he who alone had inflicted blows to Khetdas. As discussed above, this finding is not supported by the evidence of the two eye-witnesses and the case disclosed in the FIR and during investigation of these witnesses. When there were four named miscreants, it was incumbent on the prosecution to positively prove that the fatal injuries to the deceased-victim were inflicted by accused Moolaram and none else in order to convict him under Section 302, I.P.C. The evidence of these two eye-witnesses PW. 3 Sugnaram and PW. 4 Loonsingh does not permit us to hold that accused Moolaram was the author of the fatal injuries inflicted to Khetdas. '
10. In Raul's case (supra), two accused were convicted by the trial Court under Section 302/34, I.P.C. In appeal, one of them was acquitted by the High Court and the other was convicted under Section 302, I.P.C. simpliciter. It was held that where common intention is not proved, the prosecution must establish the exact nature of the injuries caused by each accused and more so when one of the accused has got the benefit of doubt.
11. We may reiterate that it cannot be inferred from the evidence of PW 3 Sugnaram and PW 4 Loonsingh that the fatal injuries to Khetdas were inflicted by accused Moolaram and none else. Accused Moolaram cannot be held to be the author of the fatal injuries caused to the deceased-victim. Unless he is proved to be the author of the fatal injuries caused to the deceased victim, he cannot be convicted under Section 302, I.P.C. simpliciter. His conviction under Section 302, I.P.C. is, thus, erroneous and uncalled for. He can, coarse, be convicted under Section 325, I.P.C.
12. The next question, which is quite interesting and clinching is whether accused Moolaram can be, now, convicted under Section 302 with the aid and applicability of Section 34, I.P.C. Four persons viz., Moolaram, Khinyaram, Tulsaram and Loonaram were named as the assailants in the FIR Ex.P 11. No other person known or unknown has been mentioned in Ex.P 11, who was with these four named persons in assailing the deceased-victim. Three of the accused viz., Loonaram, Tulsaram & Khinyaram have been acquitted on the ground that there was no common intention on their part to commit the murder of Khetdas. The trial Court refused to apply Section 34, I.P.C. against these three persons. The State has also not come-up in appeal against their acquittal. Their acquittal and the finding of the trial Court that Section 34, I.P.C. is not appealable, is, thus, final.
13. The pertinent question is whether Section 34, I.P.C. can, now be applied against accused Moolaram. Section 34, I.P.C., for its applicability, requires that a criminal act should be done by several persons in furtherance of the common intention of all. The formation of common intention, thus, requires more than one person-atleast two in number. It requires the participating presence of a plurality of assailants. It is not necessary that all of them should be known or identified. But where only named persons have been shown as assailants and no unknown or unidentified person is alleged in addition to the assailants and those named assailants have been acquitted on the ground of that there was no common intention and the number dwindles down to one, that 'one' cannot be convicted with the aid of Section 34, I.P.C. We may notice a few authorities on the point. In Prabhu Babaji v. State of Bombay , the appellant was tried along with other named accused persons on a charge under Section 302 read with Section 34, I.P.C. for having shared common intention with them. Those named persons were acquitted. The question arose whether the appellant could still then be convicted under Section 302 read with Section 34, I.P.C. It was observed:
Where the appellant was charged under Section 302 read with Section 34 for having shared the common intention of four named persons and the four persons were all acquitted, the element of sharing a common intention with them disappears; and unless it can be shown proved that he shared a common intention with the actual murderer or murderers, he cannot be convicted with the aid of Section 34. Of course he could have been charged in the alternative for having shared common intention with another or others unknown. But even then, the common intention would have to be proved either by direct evidence or by legitimate inference;
Held, that it was impossible to reach such a conclusion on the evidence in this case once the co-accused were eliminated because the whole gravamen of the charge and of the evidence was that the appellant shared the common intention with those other four and not with others who were unknown.
In Ramdeen v. State of Uttar Pradesh 1964 (1) Cr.LJ 579, a similar question arose before a Division Bench of the Allahabad High Court. The learned Judges observed as under:
The prosecution case was that the accused R along with his two sons murdered his son-in-law. One of the sons was discharged by the committing Magistrate and R and the other son were placed on their trial before the Sessions Judge who acquitted the other son and convicted only R under Section 302 and 201 read with Section 34. The charge against R and his son was that they had jointly committed the murder in furtherance of their common intention. There was no other person named in the charge who might have shared in the act except the two nor was there any evidence at the trial that there was any other person along with them who might have committed the act. The evidence also did not disclose what individual part each accused had taken in the crime.
Held, that in the circumstances there was left no one with whom R could share his intention in furtherance of which the act might have been committed. Hence the conviction of the accused R under Sections 201 and 302 read with Section 34 could not be sustained, nor could he convicted of an offence under Section 302 or Section 201 simpliciter.
Recently, in Harshad Singh v. State of Gujarat it was held that the presence of plurality of assailants is required to apply Section 34, I.P.C. their Lordships observed:
Even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identity of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with the constructive provision.
14. The position, therefore, boils down to this that where a number of persons are charged with an offence read with Section 34, I.P.C. and all of them except one are acquitted, that 'one' cannot be convicted for the offence read with Section 34, I.P.C., the reason being that the essential element of the offence being committed by more than one person in pursuance to their common intention is absent. In such a case, that 'one', of course, can be convicted of the offence which he had individually committed. The basic requirement for applying Section 34, I.P.C. is that there should be more than one person because it requires atleast two persons to form a common intention. It is not necessary that the identity of all of them should be established. But where the prosecution case is that the accused committed the offence in furtherance of the common intention of known and identified co-accused and those co-accused are acquitted, the remaining accused cannot be convicted with the applicability of Section 34 because there was none with whom he can be said to have shared the common intention.
15. In the case in our hand, the appellant Moolaram and three more persons were named as the assailants of the deceased-victim. The police, after investigation filed a crime-sheet against all the four. All the four faced the trial. On the conclusion of the trial, it was found that there was no common intention among the four to cause the death of the victim. As a result three were acquitted and the appellant was individually held liable for causing the death of the victim. As discussed earlier, we are unable to maintain his conviction under Section 302, I.P.C. simpliciter. It is not the prosecution case that along with the four assailants, there was any other person unknown or unidentified. In this state of affairs, when the appellant Moolaram remains alone, he cannot be said to have formed a common intention to commit the murder of the victim. The presence of plurality of miscreants is thus, missing. Section 34 I.P.C., therefore, cannot be invoked and the appellant Moolaram cannot be convicted with its aid.
16. It was argued by Mr. Gaur that the appellant should be convicted under Section 323, I.P.C. We are, however, of the opinion that since the death has been caused, appellant Moolaram can be safely convicted under Section 325, I.P.C.
17. Coming to the appeal of accused Loonararn, his conviction under Section 325 I.P.C. for causing grievous injury to Sugnaram has not been challenged. The only submission made by Mr. Gaur is that he has already remained in custody nearly for four months. The offence was committed in 1979. It was argued that it would not be proper to re-send him to jail now after a lapse of eight years. A lenient view should, therefore, be adopted in the matter of sentence. The learned Public Prosecutor has not opposed the move, but submitted that the amount of fine should be enhanced and compensation out of it should be awarded to the injured Sugnaram (PW 3).
18. It may be mentioned that accused Moolaram is in custody since he was arrested in 1979. In the result:
(1) the appeal of accused Moolaram is partly allowed. His conviction under Section 302 I.P.C. is set-aside and instead he is convicted under Section 325, I.P.C. and is sentenced to five years' rigorous imprisonment. In case he has served out the full sentence, he shall be immediately set-forth at liberty, if not wanted in any other case; and (2) the appeal of accused Loonaram is also partly allowed. His conviction under Section 323 and 325 I.P.C. are maintained, but the sentence of imprisonment awarded to him under these two sections is reduced to the period already undergone by him during investigation, inquiry and trial. He is however, in addition, sentenced to a fine of Rs. 3000/-, in default of the payment of fine to further undergo six months' simple imprisonment. In case the amount of fine is paid a sum of Rs. 1500/- will be paid, as compensation to PW 3 Sugnaram. He is allowed one month's time to deposit the amount in the Court below, failing which the learned Sessions Judge will proceed against him in accordance with law.
19. The appeal shall stand accordingly disposed of.