Allahabad High Court
Prabhu & Others vs State Of U.P. on 10 March, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED AFR Case :- CRIMINAL APPEAL No. - 273 of 1996 1. Prabhu aged about 60 years, son of Shri Kalika Pasi 2. Kalloo aged about 32 years, son of Shri Prabhu Pasi 3. Jagdish aged about 30 years, son of Shri Jagmohan Pasi All residents of Village - Pasi Ka Purwa, H/o Nigohi, Police Station - Deeh, District - Raebareli. ...................Appellants Versus The State of U.P. ............. Respondents Counsel for Appellant :- A.P.Singh,Anurag Singh,Archana Srivastava,Chandra Kishore,Manoj Kumar Gupta,Md. Shamshad Khan,Pankaj Tiwari,Santosh Kumar Tripathi Counsel for Respondent :- Govt. Advocate Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Shri Manoj Kumar Gupta, learned counsel for the appellant no.3, learned AGA and perused the record.
2. At the very outset, appellant no. 1 Prabhu and appellant no. 2 Kalloo have died pending appeal. Hence their appeal is abated.
3. The instant appeal has been filed against the judgment and order dated 6.7.1996 passed by the Sessions Judge, Raebareli in Sessions Trial No. 333 of 1991, State Vs. Prabhu and others, arising out of case crime no.80/91 under sections 302,323/34 IPC, Police Station Deeh, District Raebareli, whereby the learned trial court has convicted and sentenced the accused under 304 part- I read with section 34 IPC for rigorous imprisonment of five years and under section 323 IPC read with section 34 IPC for rigorous imprisonment of six months. Both the sentences were ordered to run concurrently.
4. According to the prosecution version, a First Information Report ( in short ''FIR') was lodged by one Ram Shabad on 12.6.1991 at about 13.00 Hrs. to the effect that there was some dispute between him and accused Prabhu in respect of land situated in front of the house of the complainant, where he used to keep his cattle on the various pegs put by him. Accused on account of this bore enmity with the complainant. On 12.06.1991 in between 10.00 to 11.00 A.M., accused Kallu was forcibly trying to keep his own pegs therein. Accused Prabhu and Jagdish were also accompanying him. When deceased Ram Sajivan asked him not to do so, accused started abusing him. On hearing their noise, complainant Ram Shabad alongwith his wife Smt. Sumera, wife of Ram Sajiwan and his daughter reached there and asked the accused not to interfere in the possession over the piece of land. They tried to pacify the deceased Ram Sajivn and accused persons. On the exhortation of Jagdish, accused Prabhu who was carrying a lathi and accused Kallu who was carrying a Mungari in his hand and Jagdish himself assaulted Ram Sajiwan, who tried to save himself by running towards north in the cultivatory plot. All the accused caught hold of him. Accused Kallu assaulted Ram Sajivan on his head by Mungari. Accused Jagdish assaulted him by kicks and fists. Accused Prabhu assaulted him with lathi. When the complainant, his wife and the wife of the deceased came for the rescue of Ram Sajivan then accused Prabhu assaulted to Smt. Sumera causing injuries to her. Thereafter accused ran away. Ram Sajivan succumbed to the injuries. FIR was lodged on the same day at 1.00 p.m. Investigation was handed over to S.I. Purshottam Singh Yadav, who recorded the statements of the witnesses and prepared the inquest memo of Ram Sajivan. Clothes were also recovered. Dead-body was sent for postmortem. Site plan of place of occurrence was prepared. Blood stains and clothes were sent for chemical examination. After investigation, charge-sheet was submitted against the accused.
5. Accused were charged for an offence punishable under sections 302 read with section 34 IPC and 323 IPC read with section 34 IPC, who denied the charges and claimed trial.
6. In order to prove its case, prosecution has produced P.W.1 Ram Shabad complainant father of the deceased, P.W. 2 Smt. Shakuntala wife of the deceased eye witness, P.W.3 Smt. Sumera, eye witness and injured witness, P.W. 4 Dr. D.K.Mishra, who had medically examined Smt. Sumera on 13.6.1991 at 2.45 p.m. and found the following injury on her body.
Scabed abrasion 2cm x 0.2 cm on he left deltoied region placed obliquely.
7. According to Dr. Mishra injury was simple could have been caused by abrasion. Duration was around one day.
8. P.W. 5 Dr. P.M.Srivastava has conducted the post mortem of the body of deceased Ram Sajivan on 13.6.1991 and found following ante mortem injuries on his body:-
1. Lacerated would 4 cm x 1 cm bone deep on top of head, 16 cm above the base of nose.
2. Contusion 14 cm x 8 cm on the right side of scalp, 1 cm above the right ear.
3. Abraded contusion 4 cm x 3 cm on the left side of forehead, 3 cm above the right eye brow.
4. Contusion 2 cm x 1 cm on the left side of face, just lateral to left angle of eye.
5. Abrasion 2 cm x 1 cm on the left ear on its upper and outer part.
9. According to the doctor cause of death was due to comma and due to ante mortem head injury. Duration was about one and half day.
10. P.W. 6 Head Moharrir Vishwanath Dubey and P.W. 7 I.O. Purshottam Singh Yadav are the formal witnesses.
11. In the statement under section 313 Cr.P.C. accused has stated that he has been falsely implicated in this case due to enmity.
12. After appreciating the evidence on record, learned trial court has convicted and sentenced the accused as above.
13. Learned counsel for the accused appellant has submitted that the accused has been falsely implicated in this case. Prosecution has utterly failed to prove the case against the accused beyond reasonable doubt. It is further submitted that two main accused have already died. The role of exhortation and causing injury by kicks and fists has already been assigned to the accused appellant Jagdish.
14. Per contra, learned AGA has submitted that prosecution has successfully proved the case against the accused beyond reasonable doubt. Accused was involved in the incident. He was present at the spot and has rightly been convicted and sentenced with the aid of section 34 IPC.
15. Incident occurred on 12.6.1991 at about 10-11 AM wherein the first information report was lodged on the same day at 01:00 PM. Case was registered under section 302 IPC. Investigation was handed over to SI P.S. Yadav. First information report of the incident was promptly lodged by Ram Shabad, father of the deceased Ram Sajiwan. A written report was submitted to the police station which was scribed by one Jagdish Prasad Tripathi. In the first information report specific role have been assigned to the accused. Prabhu was armed with lathi while Kallu was armed with Mungari. At this stage it is pertinent to note that the accused Prabhu and Kallu both have died pending appeal and their case has been abated but the co-accused Jagdish is still alive who is pressing the appeal.
16. A specific role of exhortation has been assigned to Jagdish. Thereafter, role of causing injuries by kicks and fists is also assigned to him. Learned trial court has convicted the accused Jagdish under section 304 Part-I as well as Section 323 IPC with the aid of Section 34 IPC. PW-1 Ram Shabad is the complainant and father of the deceased, who has stated that after the incident he took the dead body of Ram Sajiwan to the door of his house. He dictated the report to the Jagdish who wrote over the report and thereafter he had put his thumb impression on the report. PW-6 Shri Vishwanath Dubey is scribe of the chick FIR and the GD registering the case who has proved the chick FIR.
17. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh vs. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under :-
"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging the FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."
18. In Thulia Kali vs. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under :-
"............... first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."
19. In Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained."
20. Hon'ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.
21. It is settled legal position that if the first information report is delayed it raises suspicion about the genuineness of the prosecution version. It creates doubt as to whether the report was lodged after consultation and deliberations or it was a report narrating the incident genuinely and correctly. A prompt first information report overrules the theory of doubt which could have been created due to the delay in lodging the first information report. Incident occurred at about 11:00 AM. Distance of the police station from the place of occurrence is about 5 Kms. First information report was lodged at 01:00 PM. It was a reasonable time which could have been taken by the complainant in dictating the written report and thereafter in reaching to the police station, hence, the first information report in this case is a prompt wherein no doubt can be created about the prosecution version.
22. Learned counsel for the appellants accused submits that all the witnesses are relative witnesses. PW-1 Ram Shabad is the father of the deceased, PW-2 Shakuntala is widow of the deceased, PW-3 Sumera is mother of the deceased. It is submitted that the evidence of relative witnesses cannot be relied upon and it could not be held trustworthy. It is further submitted that the evidence of the witnesses should be wholly reliable to prove the case of prosecution beyond reasonable doubt.
23. Admittedly, PW-1 Ram Shabad is father, PW-2 Shakuntala is widow and PW-3 Sumera is mother of the deceased. Law nowhere prescribes that in each and every case there should be an independent witness. In the absence of independent witness prosecution version cannot be believed, rather, the legal position is otherwise.
24. Law is settled on the point that the evidence of a related witness cannot be discarded solely on this score. Hon'ble Apex Court in a recent judgment in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC 433 had held in paragraph no.34 as under :-
"The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar V. State of Punjab, (2003) 11 SCC 367, Brathi v. State of Punjab (1991) 1 SCC 519 and Algupandi v. State of T.N. (2012) 10 SCC 451."
25. In a recent judgment in the case of Gurjit Singh v. State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative.
26. Law is settled on the point that mere relation of the witness with the deceased is by itself no ground to discard his evidence. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal NO.629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no.16. Relevant portion of the aforesaid judgment reads as under :-
"16. ............. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under :-
"We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close- relatives of the victim should notbe relied upon, the Court held as under :-
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate and innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cses before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by this Court in the case of State of A.P. vs. S. Rayappa and Others [(2006) 4 SCC 512]. The Court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness.
A witness may be called interested only when he or she derives some benefit from the result litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008)16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under :-
6 ................ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
27. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar pradesh reported in [ (2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under :-
"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon ......."
28. Again in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested an inimically disposed towards that accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
29. Hon'ble Apex Court in the case of Mano Dutt and Another Vs. State of Uttar Pradesh reported in (2012) 4 SCC 79 had again occasion to consider this aspect and has observed in para 32 as under :
"Another argument with regard to the appreciation of evidence is that the material witness having not been examined and the entire prosecution story being based upon the statements of PW-1 and PW-2, who are the interested witnesses, the entire prosecution evidence suffers from a patent infirmity in law. Again, we are not impressed by this contention, primarily for the reasons afore-recorded. Furthermore, it may also be noticed that non-examination of any independent witness, in the facts of the present case, is not fatal to the case of the prosecution. Therefore, in view of the discussion made above, we are of the considered view that the prosecution has been successful in proving that the victim was taken forcibly in the car by the appellant and thereafter he was recovered in Kurebhar Chauraha where all the three appellants were apprehended by the public and the appellant was beaten."
30. In the backdrop of the aforesaid legal proposition now it is to be seen as to whether the evidence of the prosecution witness is reliable, trustworthy or not.
31. According to the FIR version, incident took place in the morning all of a sudden when accused persons were coming to keep their pegs over the land where deceased Ram Sajiwan and his father Ram Shabad PW-1 were claiming it to be their own for keeping their cattles on the spot. According to the prosecution version the dispute arose all of a sudden without any premeditation when Ram Sajiwan was protesting to the act of the accused who had removed the pegs belonging to him kept on the spot. Whether the incident took place all of a sudden or not would be surfaced from the injuries of Ram Sajiwan which shows that one of the injuries was lacerated wound on the top of the head which was caused by accused Kallu with mungari. Prabhu had given injuries by lathi and the accused Jagdish caused injuries by kicks and fists. From the total four injuries on the body of Ram Sajiwan all the four injuries in the ear, eyebrow etc are simple in nature except the injury no.1 of lacerated wound which was 4 cm x 1 cm bone deep on the top of the head. Injuries suffered by the deceased Ram Sajiwan on his head resulted in his death. In this background we have to examine the evidentiary value of the evidence of prosecution witnesses.
32. PW-1 Ram Shabad is father of the deceased, who has stated that his cattle are being kept on government land. On the date of incident the accused Kallu was forcibly trying to keep his own pegs therein alongwith Prabhu and Jagdish. On being resisted by Ram Sajiwan they abused him. On the exhortation of Jagdish, Prabhu with lathi and Kallu with mungari made an assault on Ram Sajiwan, who tried to save himself by running towards north in the cultivatory plot where all the accused reached. Kallu assaulted by his mungari which hit the head of Ram Sajiwan while the Jagdish assaulted with kicks and fists and Prabhu assaulted with lathi. Total five injuries were caused to deceased, out of which injury no.1 was fatal. Sumera along with Shakuntala and Ram Shabad tried to save Ram Sajiwan. Sumera also suffered injury.
33. PW-1 Ram Shabad is the complainant. So far as motive is concerned, this was the only motive. No other motive could have been proved by the prosecution or the defence. Evidence of PW-1 inspires confidence. At the time of incident Ram Sajiwan was going for grazing the cattle. He had taken some food half hour before leaving the house. Presence of PW-1 at the spot is very natural. He has stated that on hearing the shrieks, he reached at the spot while Sumera and Shakuntala were also there. An attempt was made by the defence to show that the incident did not take place at 11:00 AM, rather the deceased was killed by some unknown persons in the night. This suggestion has specifically been negatived by the witnesses. An attempt is made to show that PW-1 Ram Shabad has stated that the deceased had taken food just before leaving the house for grazing the cattle. PW-5 Dr. P.M. Srivastava who had conducted the postmortem has stated that some pasty material was found in the stomach which could not be identified. It is further stated that the death could have been caused on 12.6.1991 at 10-11 AM. There might be variation of four to six hours on either side. This is a natural statement. So far as taking of food is concerned, PW-1 Ram Shabad has stated that deceased Ram Sajiwan in the morning had taken light food after doing the work of repairing chhappar etc. Thereafter, after taking his meal he was going to graze the cattle. PW-2 Shakuntala, wife of the deceased, has also stated that her husband had got up at about 06:00 AM and had done some repair work of chhappar etc. At about 08:00 AM or so he had taken some food. Thereafter, he was taking his cattle for grazing. Incident took place after about half an hour or so from that moment when cattle were being taken by the deceased Ram Sajiwan. PW-3 Smt. Sumera have also stated that Ram Sajiwan used to take some food in the morning before taking the cattle for grazing. On the date of incident deceased got up early in the morning and after drinking some water and repairing a chhappar etc he took some food. Statement of all these witnesses specifically shows that the deceased had taken some light food in the morning at about 08:00 AM or so, before taking his cattle for grazing. Incident took place at about 10:00 or 11:00 AM. After taking the food sufficient time had elapsed. It cannot be accepted that the deceased had taken full lunch in the morning so as to find some contents in the stomach which could said to be of semi-digested food. Even according to the statement of Dr. P.M. Srivastava the pasty material found in the stomach could not be identified. In such circumstance it cannot be accepted that incident could have taken place during wee hours of 12.6.1991, rather the prosecution has successfully established that the incident took place on 12.6.1991 at about 10 to 11:00 AM. It is also established that the cause of death was injury no.1 which could have been caused which was a lacerated wound.
34. Now, it is to be seen as to whether the prosecution has successfully established the presence of accused appellant at the place of occurrence as also the mode and manner as alleged by the prosecution.
35. PW-1 Ram Shabad is father of the deceased who has stated that the incident took place at about 10:00 AM. He lodged the first information report at 01:00 PM. All the material facts regarding mode and manner of the incident have been stated by the PW-1 Ram Shabad. He was cross examined on all material facts. He has specifically stated that on the resistance of deceased Ram Sajiwan, initially the accused tried to scuffle with him. Daughter of Ram Sajiwan got them separated. Thereafter, on the exhortation of accused Jagdish, Kallu attacked him by mungari on his head. Ram Sajiwan fell down. Prabhu assaulted him by lathi. On hearing the shireks, Sumera, Shakuntala and Ram Shabad reached at the spot and tried to save Ram Sajiwan. They fell down on Ram Sajiwan then the accused ran away. An injury was also caused to PW-3 Sumera, mother of the deceased. PW-4 Dr. D.K. Misra has proved the injury of Sumera who was medically examined by him on 13.6.1991 at 02:45 PM. He found only one injury on her body which was scabed abraison 4 x 0.2 cm into left deltoid region placed obliquely. Presence of PW-3 Sumera at the spot is challenged on the ground that she has stated that she fell down on her son. Blood was oozing from the injuries of Ram Sajiwan but her clothes were not blood stained. It is submitted that if the statement of Sumera is treated to be correct then when she fell down on her son her clothes should have also some blood stains. It is also submitted that the injuries caused to the PW-3 Sumera, could have been a self inflicted injury as she was medically examined on the next day. Statement of PW-3 Sumera is totally in consonance in the first information report lodged by PW-1 Ram Shabad. First information report was lodged just after about two hours of the incident. It could not have been expected from the rustic villagers that they will concoct a false story within a short time of two hours. Presence of PW-3 Sumera is very natural, who is mother of the deceased who reached on spot on hearing the alarm raised by his son. Statement of PW-3 Sumara is also in consistence with the statement of PW-1 Ram Shabad and PW-2 Shakuntala. At one place this witness has stated that his clothes were also having blood stains which were not recovered by the investigating officer. Even if it is so, it could have been a case of defective investigation wherein the investigating officer did not made any attempt to recover the blood stained clothes of the witness but on this count only it cannot be accepted that the presence of PW-3 at the spot is doubtful. It is more so when she also sustained injuries in the incident.
36. PW-2 Smt. Shakuntala is the wife of the deceased who reached at the spot on hearing the alarm raised by her husband. Although she is third wife of the deceased but this itself could not be ground to reject her testimony. Her presence at the spot is quite natural. She has stated that on hearing the alarm her mother-in-law reached at the spot, just after half a minute she also reached at the spot. She saw that Kallu was assaulting her hbusband. She also stated that clothes of her father-in-law and mother-in-law did not contain the blood stains. Her presence at the spot is also very natural. No reason could be shown wherein statement of PW-2 Shakuntala could not be believed.
37. Statement of PW 1 Ram Shabad, PW-2 Shakuntala and PW3 Sumera are wholly reliable.
38. An argument is made that the place of occurrence could not be established by the prosecution. In the site plan axe belonging to the complainant at place A are shown by A which was situated near the house of the complainant. A few paces as mentioned at serial 17 to 20 of the site plan. Spot C shown in the site plan is situated to the north of the house of the complainant Ram Shabad shown at spot D. Distance between C and D is about 100 paces. Incident took place in the abadi situated at few paces from the house of the complainant as well as the accused. Witnesses of the fact as well as investigating officer has established the place of occurrence which could not be doubted.
39. Learned trial court has convicted the accused under section 304 Part-I IPC. It is to be seen as to whether there was an intention to commit the culpable homicide amounting to murder or not. Incident took place in the morning all of a sudden when the accused persons namely Kallu was coming to keep their pegs over the land when deceased and his father Ram Shabad were claiming it to be their own for keeping their cattle. Accused Prabhu and Jagdish were also there. Incident took place all of sudden when Ram Sajiwan was protesting to the act of the accused who removed two pegs belonging to deceased. At the same time sole alive accused-appellant Jagdish exhorted Kallu accused (since dead) who assaulted the deceased on his head by mungari to fell down on the spot. Prabhu (since dead) assaulted him by lathi causing injuries. Accused-appellant Jagdish also assaulted by kicks and fists. Injury no.1 suffered by the deceased was proved fatal resulting in the death of the deceased.
40. At this juncture, we would like to discuss the case law on Section 34 IPC. On this point reference may be made to the pronouncement of Hon'ble Apex Court in the case of Raju Pandurang Mahale Vs. State of Maharashtra and Another (2004)4 SCC 371 has held in para 16 as under:
"16. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the person who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."
41. In Sukhbir Singh versus Kirtan Singh and others (2005) 10 SCC 567, it was held by the Apex Court that:-
It is true that the accused were armed with weapons but that by itself is not sufficient to hold that all the persons had come there with the intention of causing death of Ran Veer. The evidence in the case only disclosed that the accused persons came in a group and first accused Lakshman Singh fired at deceased Ran Veer. It is also important to note that he deceased Ran Veer had sustained one more injury which is incised in nature and the same is alleged to have been caused by the second accused Kirtan Singh who was armed with a "farsa". This injury was not grievous and the second accused was found guilty of offence punishable under Section 307 I.P.C. for having caused grievous injury to PW-2. The fact that the second accused did not cause any grievous injury even though he was armed with deadly weapon, was also taken note of by the High Court for convicting him rather than holding that he shared the common intention to cause the death of the deceased.
42. In State of U.P. v. Iftikhar Khan (1973) 1 SCC 512 It was held that to convict a person for offence applying Section-34 I.P.C., it is necessary to establish that the criminal act was done in concert, pursuant to a prearranged plan and it is also to be borne in mind that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person. Therefore, courts, in most cases, have to infer the intention from the act or the actual conduct of a particular person or from the other relevant circumstances of the case. Such inference of common intention within the meaning of Section-34 I.P.C. Should never be reached unless the necessary inference is deducible from the circumstances of the case.
43. Presence of accused Jagdish at the spot is established. Accused Kallu assaulted the deceased by mungri in furtherance of the common intention wherein accused Prabhu and Jagdish also assaulted the deceased. Presence of Jagdish at the spot is established. In furtherance of the common intention death of the deceased took palce. Merely the fact that the incident took place all of a sudden does not absolve the accused persons from the liability of causing death of deceased. Ram Sajiwan died on the spot as a result of the injuries suffered by him on his head in the incident. Benefit of right of private defence of person and property could also not be extended in favour of the accused. There was no grave and sudden provocation from the side of the deceased and no injury was caused on the body of any of the accused so as to give them any reason for assaulting the deceased causing his death. Even if there was some dispute on the issue of keeping the pegs, accused could not have adopted the extreme step of assaulting the deceased and causing his death. No right could have been claimed by the accused for the safety or private defence of person or property.
44. Learned trial court has rightly appreciated the evidence on record and held that the death caused by the assailant given to the deceased Ram Sajiwan by the accused and the accused were rightly held guilty under section 304 Part I.
45. On the point of sentence learned trial court has already taken a lenient view by awarding a sentence of five years imprisonment under Section 304 Part I read with section 34 and six months imprisonment under section 323 read with section 34 IPC.
46. I do not find any force in the appeal which is devoid of any merit and is liable to be dismissed. Appeal is accordingly dismissed. Judgment and order of the learned trial court dated 06.7.1996 is confirmed. Accused Jagdish is in jail. He shall serve out the sentence as awarded by the learned trial court and confirmed by this Court.
47. Office is directed to certify the judgment to the learned trial court forthwith. Office is further directed to send back the lower court record for compliance. Compliance report be submitted within four weeks.
Date : - 10.03.2017 mks (Anil Kumar Srivastava- II, J.)