Jharkhand High Court
Rengo Puran vs The State Of Bihar (Now Jharkhand) on 15 February, 2023
Bench: Sujit Narayan Prasad, Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 160 of 1994 (R)
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(Against the Judgment of conviction dated 22.08.1994 and order of
sentence dated 30.08.1994 passed by Additional Judicial Commissioner,
Khunti, in S.T. No.114 of 1991/TR No.122 of 1994)
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1. Rengo Puran, Son of Bhuwan Puran.
2. Lalji Puran, Son of Bahal Puran
Both of village Tangtang, P.S-Sonahatu, District-Ranchi
........ Appellants
Versus
The State of Bihar (Now Jharkhand) ........ Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. Ramit Satender, Amicus Curiae
For Respondent : Mr. Pankaj Kumar Mishra, APP
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CAV on:7th February,2023 Pronounced on:.15/02/2023
Per: Sujit Narayan Prasad, J.
1. The instant criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure directed against the Judgment of conviction dated 22.08.1994 and order of sentence dated 30.08.1994 passed by Additional Judicial Commissioner, Khunti, in S.T. No.114 of 1991/TR No.122 of 1994 by which the appellants have been convicted for commission of offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the said offence.
2. The brief facts of the case, as per the statement made in fardbeyan, reads as under:
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The informant-Durga Charan Puran (P.W-1) gave his fardbeyan before the police on 21.12.1990 at 11.00 A.M at village Tangtang that on 20.12.1990 at about 4.00 p.m. when he along with his father Rameshwar Puran (deceased) had gone to their Potato Bari (field) to give soil on the potato plants they saw three accused persons, namely, Rengo (appellant no.1), Gulen Puran and Laljee Puran (appellant no.2) were taking water from informant's field to their adjacent field. The informant and his father- Rameshwar Puran (deceased) asked them not to do so as it will cause harm on their potato plants. The aforesaid accused persons when did not give heed to the informant's father (deceased) then Rameshwar Puran (deceased) cut the drain through which water was flowing to the field of accused persons which resulted in abusing the informant by the accused persons and the deceased and informant was assaulted with lathi. In the meantime accused Bhuwan Puran and Bahal Puran arrived there and shouted 'Maro-Maro'. When both the informant and his father Rameshwar Puran (deceased) were fleeing away the deceased Rameshwar Puran fell down in the potato field of Leela Puran. The accused persons chased them and appellant no.1-Rengo Puran assaulted deceased with spade on his leg, Gulen Puran gave a spade blow on the head of Rameshwar Puran and Lalji Puran gave spade blow on his waist. Rameshwar Puran (the deceased) succumbed to injuries and fell down, however, informant managed to escape.
It is further stated that there was old land dispute in between the accused persons and the informant and his father, as such, the deceased 3 was not living in the village. It is stated that the village was far away from the police station, therefore, police came to the village next morning when the Chowkidar gave information to the police.
3. On the basis of the said fardbeyan, F.I.R. was registered being Khunti P.S. Case No.74 of 1990 for commission of offence under Section 302/114 of the Indian Penal Code.
The police started investigation and on conclusion of the investigation the charge sheet was submitted, whereupon cognizance of the offence was taken and the case was committed to the Court of Sessions.
4. The trial court after commitment of case framed charge against the appellants under Sections 302/34 of the Indian Penal Code. The trial court after examining the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons and found the charges levelled against the appellants proved beyond all reasonable doubt. Accordingly, the appellants have been found guilty and convicted for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the said offence.
5. Mr. Ramit Satender, learned counsel, who has been appointed as Amicus by virtue of order dated 08.05.2019 passed by a Co-ordinate Division Bench of this Court has taken the following grounds in assailing the impugned judgment:
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(i) The weapon by which the assault said to have given has not been seized. The blood stained clothes had not been sent for its chemical examination. The investigating officer has not been examined and as such serious prejudice has been caused to the appellants as place of occurrence has not been proved. Independent witnesses have not been examined, therefore, the testimony of the P.W.1, P.W-2 and P.W-3 who are the highly interested witnesses cannot be relied upon, but, the same having been relied upon which is the basis of judgment and conviction of the accused/appellants.
(ii) The person who has identified the inquest report has not been examined in order to corroborate the place of occurrence. Two of the accused persons, namely, Bhuwan Puran and Bahal Puran have been acquitted against whom similar allegations have been levelled as is against the appellants and as such it is not proper on the part of the learned trial court to acquit both of accused persons, namely, Bhuwan Puran and Bahal Puran and convict only the appellants.
6. Mr. Pankaj Kumar Mishra, learned A.P.P, on the other hand, has submitted by defending the judgment of conviction that since the case is based upon the eye witnesses, P.W-1, P.W-2 and P.W-3 who have witnessed the commission of offence and as such considering them the eye witnesses and believing upon their testimonies the conviction is based and as such the judgment of conviction cannot be said to suffer from an error.
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Since it is a case of eye witnesses who have witnessed the assault being given by the appellants and as such merely by not sending the blood stained cloth/earth for its chemical examination will not vitiate the trial. Further the non-examination of the investigating officer will not vitiate the trial because the conviction since is based upon the testimony of the eye witnesses and even if there is no examination of investigating officer, the independent witnesses, the testimony of eye witnesses cannot be discarded.
Further argument has been advanced that even accepting that the accused persons, namely, Bhuwan Puran and Bahal Puran have been acquitted by not finding the ingredient as available under Section 34 of the Indian Penal Code even though it has come in the testimony of P.W.-2 that Bhuwan had instigated his companions to assault the deceased and as such the aforesaid finding even accepting to be not correct in view of the fact that the testimony which has come for instigating the companions by the Bhuwan will come under the fold of the ingredient under Section 34 of the Indian Penal Code proving the common intention but even if he has been acquitted that will not absolve the appellants from their liability of having common intention who, on instigation, has assaulted the deceased by spade. It has been submitted that since the appellants have assaulted the deceased by spade causing injury and as such the same is sufficient to prove the ingredient of having common intention.
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The learned A.P.P. on the basis of the aforesaid submission has advanced his argument that the judgment of conviction cannot be said to suffer from an error.
7. We have heard the learned counsel for the parties and gone through the materials available on record but before going into the legality and propriety of the impugned judgment of conviction and order of sentence, deem it fit and proper to first discuss about the testimony of the witnesses as also the exhibits contained in the Lower Court Record.
8. The prosecution has examined altogether seven witnesses including the informant. P.W-1-Durga Charan Puran (the informant), P.W-2 (Shridhari Puran) and P.W-3 (Bir Ganjhu), according to the prosecution they are the eye witness of the occurrence. P.W.-4 (Ramesh Chandra Ganjhu has been tendered. P.W-5 (Balram Puran) is the inquest witness who has proved the signature of another inquest witness Vakil Ganjhu on the inquest report marked as Exhibits-1 & 1/1 respectively. He has also proved his signature and signature of Vakil Ganjhu over seizure list of blood stained earth. P.W-6 (Dr. Chandra Shekhar Prasad) is the doctor who held autopsy on the dead body and proved the post mortem report (Exhibit-2), and found the following injuries:
"Incised Wound:
(i) 7 c.m. x 2 c.m. x bone deep on the medial side of left leg lower part cutting the underlying bone.
(ii) 6 x 2 c.m. x bone deep on the medial side of left leg lower part situated 3 ½ c.m above the preceding injury cutting the underlying bone.7
(iii) 12 x 3 c.m x cutting deep on the right fronto parietal region of the head cutting the underlying bone and brain matter.
(iv) 8 x 2 ½ c.m x cavity deep on the right parietal region of head cutting the underlying bone and brain matter
(v) 7 x 2 c.m. x cavity deep situated 2 c.m below the preceding injury cutting the underlying bone and brain matter
(vi) 13 c.m x 3 c.m x bone deep a cross the right external ear starting from right Zygomatic to right martoid region cutting the underlying bone and brain matter
(vii) 11 c.m x 2 ½ c.m x bone deep situated 1 ½ c.m below the preceding injury cutting the underlying bone.
(viii) 7 ½ c.m x 1 ½ c.m x scalp deep on the left parietal region of the head with beveling of left margin of parietal scalp."
P.W-7, a constable posted at Civil court, Khunti is a formal witness who has proved the F.I.R and the carbon copy of the fardbeyan marked as Exhibits-3 and 4 respectively.
The learned trial court after taking into consideration the testimony of the prosecution witnesses and having found the prosecution story to be corroborated by their testimony has convicted the appellants under Section 302/34 of the Indian Penal Code.
9. The judgment of conviction is based upon the testimony of P.W- 1, P.W-2 and P.W-3 and as such it is necessary for this Court to scrutinize the testimony of P.W-1, P.W-2 and P.W-3.
P.W-1-Durga Charan Puran (the informant) has more or less corroborated the fardbeyan (Ext-4). He has deposed on 08.06.1993 that about 2 and ½ years ago in the month of 'Paush' on one thrusday at about 4.00 p.m. while he and his father (deceased) were in their potato field, they saw Gulen (dead), Rengo and Laljee were taking water from his potato field to their field. They asked them not to do so as that would cause harm to their potato. On that all the three started quarreling 8 with them and chased them. While fleeing away his father fell down in the potato field of Leela Puran. Rengo rushed there with spade and hurled the same which caused injury on the left leg of the deceased. Gulen (dead) gave blow of spade on the head of the deceased and Laljee gave spade blow on the waist of the deceased. Accused Bhuwan & Bahal were also present there. The deceased succumbed to injuries at the spot itself. He has further deposed that he was also chased by the accused persons but he raising hulla fled away towards his village and narrated the occurrence to the villagers. The accused persons also arrived there and threatened all the villagers of dire consequences if anyone would depose against them. The occurrence was witnessed by Shridhari, Bir Ganjhu and Ramesh Puran, He has said that accused Gulen is dead, accused Bhuwan Puran is his uncle and there was land dispute in between him and the deceased as accused Bhuwan wanted to drag them away from the village. As the deceased used to live at Tata, accused Bhuwan did not like that as he would live in the village and would get lands in his share.
In cross-examination he has said that there was a proceeding under Section 144 Cr. P. C in between his father (deceased) and Bhuwan but that had ended prior to the occurrence. Further in cross- examination he has said that at the time of altercation of the accused persons with the deceased, he was there and Shridhari (P.W-2) and Bir Ganjhu (P.W-3) were in their respective fields just in front of his field. He has said that the field of Leela Puran was near their field. Further it is deposed by him that Rengo gave 3-4 spade blows on his father's left 9 leg, Laljee gave 3-4 blows of spade to his father and Gulen (dead) had given three spade blow to his father.
P.W-2 (Shridhari Puran) has also corroborated the statement of the informant that at the time of occurrence he (P.W-2) was in his field and the deceased and informant (P.W-1) were in their field and accused Rengo, Laljee and Gulen (dead) had quarreled with them within his sight, because the deceased had prevented taking water by the accused persons from his field where potato was grown. He has said that the three accused persons had assaulted the deceased with spade in the potato field. He has not given name of the owner of the field but has said that the assault took place in potato field. Further he has said that Rengo had given first blow of spade on the left leg of the deceased and Gulen had given spade blow on the head of the deceased and Laljee had given spade blow on the waist of the deceased. He has said that Bahal and Bhuwan were in field and Bhuwan was abetting others to assault the deceased.
In cross-examination he has said that Laljee had given five blows on the waist of the deceased and Gulen (dead) had given five blow of spade on the head of the deceased and Rengo had assaulted on the body of the deceased with one spade. He has denied his relationship with the informant.
P.W-3 (Bir Ganjhu) has also deposed that he had seen the occurrence. He has stated that Rengo had given spade blow on the left leg of the deceased, Gulen had given spade blow on his head and Laljee had given spade blow on his waist. Accused Bhuwan and Bahal were 10 also there. He has said that Rengo, Gulen (dead) and Laljee had given three spade blows each to the deceased which he had seen from his field and then he had gone to the field of the deceased to see the occurrence. He has also denied his relationship with the deceased.
10. It is evident from the testimony of P.W-1, the informant has corroborated the version which was recorded by him in the fardbeyan (Exhibit-4). He has stated that while he and his father (deceased) were in the potato field they saw Gulen Puran (dead), Rengo (appellant no.1), and Laljee Puran (appellant no.2) who were taking water from his potato field to their field. They asked not to do so and as that would cause harm to their potato but on the said issue the scuffle took place and the accused persons had assaulted the deceased due to which the deceased fell down and succumb to injury. It has come specifically in the testimony of P.W-1 that the Rengo (appellant no.1) had rushed there with spade and hurled the same which caused injury on the left leg of the deceased, Gulen (dead) gave spade blow on the head of the deceased and Laljee gave spade blow on the waist of the deceased. It has come that accused Bhuwan and Bahal were also present there. It has further appears that the testimony of P.W-1 in cross-examination is not inconsistent what he has stated in the examination-in-chief.
Further P.W-2 has also corroborated the story of fardbeyan by narrating the story of giving assault by the appellants through spade. His version has also been corroborated by the testimony of P.W-3. The appellants herein has assaulted by spade and such injury is being 11 corroborated by the testimony of the doctor who has found the injuries as referred hereinabove.
11. It, therefore, appears that the injury so caused by assaulting through spade by the appellants is being corroborated by the testimony of the doctor who conducted the autopsy on the dead body. The learned trial Court has considered the testimony P.W-1, P.W-2 and P.W-3 as also by taking into consideration the testimony of the doctor has come to the conclusive finding about proving of charge against the appellants beyond all reasonable doubt.
12. This Court after having discussed the testimony of the eye witnesses is now proceeding to scrutinize the ground as has been taken on behalf of the appellants.
The first ground which is taken that the weapon used in commission of crime is not seized. The law is well settled in this regard as has been held by Hon'ble Apex Court in the case of State of Rajasthan vs. Arjun Singh reported in (2011) 9 SCC 115 wherein at paragraph 18 it has been held, which reads as under:
"18. As rightly pointed out by the learned Additional Advocate General appearing for the State that mere non-recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable. Likewise, absence of evidence regarding recovery of used pellets, bloodstained clothes etc. cannot be taken or construed as no such occurrence had taken place. As a matter of fact, we have already pointed out that the gunshot injuries tallied with medical evidence. It is also seen that Raghuraj Singh and Himmat Raj Singh, who had died, received 8 and 7 gunshot wounds respectively while Raj Singh (PW 2) also received 8 gunshots scattered in front of left thigh. All these injuries have been noted by the Doctor (PW-1) in his reports Exts. P-1 to P-4."12
Further the Hon'ble Apex Court in the case of Nankaunoo vs. State of U.P reported in (2016) 3 SCC 317 wherein at paragraph 9 it has been held, which reads as under:
"9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
Further ground is not sending the blood stained earth for chemical examination, the law is also settled in this regard, as has been held by Hon'ble Apex Court in the case of Surendra Paswan vs. State of Jharkhand reported in (2003) 12 SCC 360 wherein at paragraph 9 it has been held, which reads as under:
"9. So far as the non-seizure of blood from the cot is concerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was not sent for chemical examination, it may be a defect in the investigation but does not corrode the evidentiary value of the eye- witnesses. The investigating officer did not find presence of blood on the cot. The trial Court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth."13
Further the Hon'ble Apex Court in the case of Sheo Shankar Singh vs. State of Jharkhand and Anr. reported in (2011) 3 SCC 654 wherein at paragraph 56 it has been held, which reads as under:
"56. The same view was expressed by this Court in Surendra Paswan v. State of Jharkhand . In that case the investigating officer had not sent the blood samples collected from the spot for chemical examination. This Court held that merely because the sample was not so sent may constitute a deficiency in the investigation but the same did not corrode the evidentiary value of the eyewitnesses."
The effect of non-examination of the investigating officer is also settled as per the judgment rendered by Hon'ble Apex Court in the case of Ram Gulam Chaudhary vs. State of Bihar reported in (2001) 8 SCC 311 wherein at paragraph 30 it has been held, which reads as under:
"30. In our view, in this case also non-examination of the Investigating Officer has caused no prejudice at all. All that Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The Investigating Officer was not an eye witness. The body had already been removed by the appellants. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. There were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. We, therefore, see no substance in this submission."
Further the Hon'ble Apex Court in the case of Birendra Rai vs. State of Bihar reported in (2005) 9 SCC 719 wherein at paragraph 14 it has been held, which reads as under:
"14. It was then submitted that the investigating officer was not examined in this case and that has resulted in 14 prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by non-examination of the investigating officer. The mere fact that according to the seizure list a stick with bloodstains and pellet marks was seized from the place of occurrence, would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizures made and base our decision on the other evidence and the evidence of two eyewitnesses, who have impressed us as truthful."
The non-examination of the independent witness whereas it vitiate the prosecution story has also been considered by Hon'ble Apex Court in catena of decision, reference in this regard may be made to the judgment rendered by Hon'ble Apex Court in the case of Sarwan Singh vs. State of Punjab reported in (1976) 4 SCC 369 wherein at paragraph 13 it has been held, which reads as under:
"13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, all though the evidence shows that there were some persons living in that locality like the 'Pakodewalla', Hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr. Hardy has adopted this argument. In our opinion the comments of the Additional Sessions Judge are based on serious misconception of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its-witnesses if it is to prove its case. The Court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the Court may draw an adverse inference against the prosecution. But it, is not the law that the omission to examine any and every witness even on minor points 15 would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eye-witnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eye- witnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd bad gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in Courts because of the cumbersome and dilatory procedure of our Courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the Courts. Therefore nobody wants to be a witness in a murder or in any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes. So far as Pakodewalla and Hotelwalla etc. are concerned there is positive evidence to show that they were interrogated by the police but they expressed ignorance about the occurrence. In this connection the evidence of P.W. 5 Harnek Singh clearly shows that the Investigating Officer interrogated the Hotelwalla and the Pakodewalla but they stated before him that they had not witnessed the occurrence. In these circumstances, therefore, there was no obligation on the prosecution to examine such witnesses who were not at all material. It is not a case where some persons were cited as eye-witnesses by the prosecution on material points and were deliberately withheld from the Court. For these reasons, therefore, the learned Additional Sessions Judge was not at all 16 justified in raising an adverse inference against the prosecution case from this fact and the High Court was right in rejecting this part of the reasoning adopted by the learned Additional Sessions Judge."
Further the Hon'ble Apex Court in the case of Sarwan Singh vs. State of Punjab reported in (2003) 1 SCC 240 wherein at paragraph 13 it has been held, which reads as under:
"13. As regards the examination of independent persons or witnesses, we would do well to note a decision of this Court in Ambika Prasad v. State (Delhi Admn. [(2000) 2 SCC 646 :
2000 SCC (Cri) 522] ) wherein this Court in para 12 observed: (SCC pp. 653-54) "12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW 7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] this Court observed: (SCC pp. 691-92, para 15) „In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."17
13. It is evident from the legal pronouncement as referred hereinabove that if the conviction is based upon the testimony of eye witnesses, the prosecution will not vitiate either of the ground i.e., if the weapon not seized or the blood stained earth has not been send for chemical examination or the investigating officer or the independent witness has not been examined.
14. This Court, therefore, is of the view that the ground as has been agitated on behalf of the appellants in this regard, on the basis of the principle laid down by Hon'ble Apex Court as referred hereinabove, prosecution will not vitiate in the facts of the given case, wherein, P.W- 1, P.W-2 and P.W-3 have corroborated the prosecution version and commission of crime by the accused persons.
15. The another ground has been agitated that two of the accused persons, namely, Bhuwan Puran and Bahal Puran have been acquitted even though there was ingredient of Section 34 I.P.C. available against them but why such benefit be not given to the appellants.
This Court has considered the aforesaid argument by taking into consideration the testimony of the prosecution witnesses wherefrom it is evident, more particularly from the testimony of P.W-1 who has stated that Bhuwan had come and instigated the other accused persons to assault and thereafter the assault has been given upon the deceased.
16. Section 34 of the I.P.C requires to refer herein in the context, which reads hereunder as:
"34. Acts done by several persons in furtherance of common intention.18
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. The provision of Section 34 has been considered by Hon'ble Apex Court, reference in this regard may be made to the judgment rendered in the case of Kirpal and Bhopal v. State of Uttar Pradesh reported in AIR 1954 SC 706, wherein it has been held that the common intention to bring about a particular result may well develop on the spot itself and, as such, the ingredients of Section 34 of the Indian Penal Code will be applicable. The relevant paragraph of the aforesaid judgment is referred and quoted hereunder as :-
"6. The question, however, remains as to which of these three appellants are guilty and what offence has been committed by each. The learned Sessions Judge while holding all the three appellants responsible for causing the death of Jiraj was of the opinion that they could be guilty only under Section 304 IPC taken with Section 34 IPC on the ground that there is no evidence of any preconcerted or predetermined plan to kill the deceased Jiraj and that the blows were inflicted by the appellants in the course of a sudden fight in the passion without having taken undue advantage or acted in a cruel or unusual manner. The learned Judges of the High Court quite rightly pointed out that a preconcert in the sense of a distinct previous plan is not necessary to 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 fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. In the present case, therefore, it is necessary to scrutinise what the exact evidence in this behalf is which has been accepted by the courts below. The evidence of all the eyewitnesses relating to this incident has 19 been summarised by the High Court in its judgment as follows:
"The three appellants were working the well (Milakwala well) that morning. When they saw Man Singh and Sher Singh going past the well they were asked them where they were going. On being told that they were going to harvest Jiraj's sugarcane field they abused them and told that not to go there but to work for them. Man Singh and Sher Singh did not listen to them and walked on. When they had gone 30-40 paces the three appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in Sheoraj's hand. Jiraj arrived at the spot and asked the appellants why they were beating his labourers and stopped them from beating them. Sheoraj hit him on the legs with his lathi and he fell down. Kripal stabbed him with his spear near the ear. Bhopal then stabbed him with his spear on the left jaw, put his legs on his chest and extracted the spear blade from his jaw. Just as the blade came off, Jiraj died."
Further in the case of Virender v. State of Haryana reported in (2020) 2 SCC 700), the Hon'ble Apex Court has laid down as under
paragraphs 11 and 12 that in order to invoke the principle of joint liability in commission of criminal act as laid down under Section 34 of the Indian Penal Code, the prosecution should show that the criminal act in question was done by one or more accused persons in furtherance of the common intention, for ready reference paragraphs 11 and 12 are being quoted hereunder as :-
"11. Proceeding on the basis that the appellant was present on the spot of the offence, we do not find that the commission of the offence of murder stands proved as against the appellant with the help of Section 34 IPC, either. In order to invoke the principle of joint liability in the commission of a criminal act as laid down in Section 34, the prosecution should show that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all. If this is 20 shown, the liability for the offence may be imposed on any one of the persons in the same manner as if the act was done by him alone. It may be difficult to procure direct evidence to prove the intention of an individual, and in most cases it has to be inferred from the facts and relevant circumstances of the case. The common intention may be through a pre-arranged plan, or it may be generated just prior to the incident. Just as a combination of persons sharing the same common object is one of the features of an unlawful assembly, so is the existence of a combination of persons sharing the same common intention one of the features of Section 34.
12. As held by the Constitution Bench of this Court in Mohan Singh v. State of Punjab [AIR 1963 SC 174] , common intention denotes action in concert, and a prior meeting of minds--the acts may be different, and may vary in their character, but they are all actuated by the same common intention. However, prior concert in the sense of a distinct previous plan is not necessary to be proved. As mentioned supra, the common intention to bring about a particular result may well develop on the spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted."
It is evident from the provision of Section 34 that the common intention is the main requirement for attracting the ingredient of Section 34 of the I.P.C.
18. Here in the instant case, it is not in dispute that Bhuwan and Bahal had also the common intention along with the other accused persons including the appellants but the trial court has acquitted Bhuwan and Bahal.
The question herein is that even accepting the acquittal of accused persons, namely, Bhuwan Puran and Bahal Puran even if the 21 ingredient of Section 34 were available against them, since, it has come in the testimony of P.W-1 that they had instigated to assault the deceased but the question herein will be that if the learned trial court has committed illegality in acquitting accused persons, namely, Bhuwan Puran and Bahal Puran, can such benefit be given to the appellants.
The answer of this Court is in negative reason being that if any illegal finding has been arrived at by the learned trial court, the same does not give right to the appellants to take that point, this is on the principle that any illegal order cannot have the binding effect.
19. This Court is now proceeding as to how the acquittal of accused persons, namely, Bhuwan Puran and Bahal Puran is an order cannot be said to be proper.
The Hon'ble Apex Court has considered the implication to be made under Section 34 of the Indian Penal Code wherefrom it is evident that for attracting an offence committed under Section 34 the common intention of the accused persons is required to be there. Here admittedly Bhuwan and Bahal had also common intention since Bhuwan had instigated to assault but even then the learned trail court has acquitted them on the basis of the consideration of the contradiction in the deposition of P.W-1 and P.W-2 wherein although the P.W-1 has stated in his testimony that Bhuwan had instigated but the same has not been corroborated from the P.W-2.
The question herein is that when P.W-1, the informant, in specific term has stated in his deposition that Bhuwan had instigated to assault 22 and it has not been denied by any of the witnesses and nor any question has been put before the prosecution witnesses that Bhuwan and Bahal were not at the place of occurrence, rather, it is a case that they were present at the place of occurrence and Bhuwan had instigated as would be evident from the testimony of P.W-1, the informant. The presence of Bhuwan and Bahal since is not in dispute as also the commission of abetment to commit crime is also not lacking, therefore, their acquittal lacking the ingredient of Section 34 cannot be said to be proper in the eye of law.
20. But, herein since we are sitting in appeal and the State has not questioned the judgment of acquittal of Bhuwan and Bahal, therefore, this Court cannot consider the issue of the acquittal of Bhuwan and Bahal.
But simultaneously the benefit of their acquittal cannot be given to the appellants merely because the acquittal order has been passed against Bhuwan and Bahal on non-consideration of the fact and the settled legal position that the illegal order cannot be allowed to be in the benefit of the others.
Here so far as the case of the appellants are concerned, it has come specifically in the testimony that they had rushed to the place of occurrence with spades and Rengo had given spade blow on the left leg of the deceased, Gulen had given spade blow on head of deceased and Laljee had given spade blow on waist of the deceased, as would appear from the testimony of doctor and, therefore, it cannot be said that there 23 is no ingredient of Section 34 of the Indian Penal Code against the appellants.
21. This Court, after having discussed the legal position and the factual aspect, is of the considered view that the Judgment of conviction dated 22.08.1994 and order of sentence dated 30.08.1994 passed by Additional Judicial Commissioner, Khunti, in S.T. No.114 of 1991/TR No.122 of 1994 cannot be said to suffer from an error, so far as appellants are concerned, since, learned trial court has come to such conclusion on the basis of the fact that the prosecution has been able to prove the charge beyond all reasonable doubt. The basic principle of criminal trial that the judgment of conviction will be there if the prosecution will be able to prove the charge beyond all reasonable doubt, as has been held by Hon'ble Apex Court in the case of Rang Bahadur Singh vs. State of U.P reported in AIR 2000 SC 1209, it has been held as follows:
"The time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
22. This Court after taking into consideration the fact, is of the considered view that the judgment impugned requires no interference.
23. In the result, the instant appeal fails and is dismissed.
24. Consequent upon dismissal of the appeal preferred by the appellants, since appellant nos.1 and 2, namely Rengo Puran and Lalji 24 Puran who are enjoying suspension of sentence after the order being passed by this Court directed to release them during pendency of the appeal, their bail bonds are cancelled and they are directed to surrender before the learned trial Court who would send them jail to serve out their remaining sentence.
25. Needless to say that if the appellants will not surrender, the trial Court will take endeavours for securing custody to serve out their remaining sentence and further secure that they deposit the amount of fine so imposed by this Court.
26. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
27. Before parting with this order, it requires to refer herein that the Co-ordinate Bench of this Court vide order dated 08.05.2019 reserving the right of the appellants to engage a counsel of their choice, appointed Mr. Ramit Satender, the learned counsel as Amicus to argue this criminal appeal on behalf of the appellant nos.1 and 2 and it was further ordered that a copy of the order be forwarded to the Secretary, Jharkhand High Court Legal Services Committee, for information and fee for the Amicus was directed to be fixed after disposal of this criminal appeal.
28. In view thereof, the Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of admissible fee in favour of learned Amicus.
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29. This Court expresses its gratitude to Mr. Ramit Satender in tendering his assistance.
(Sujit Narayan Prasad, J.) I agree.
(Subhash Chand, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Saket/ - A.F.R.