Allahabad High Court
Shahab Alam And 2 Others vs State Of U.P. on 11 January, 2021
Bench: Kaushal Jayendra Thaker, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 49
Case :- CRIMINAL APPEAL No. - 1302 of 2015
Appellant :- Shahab Alam And 2 Others
Respondent :- State of U.P.
Counsel for Appellant :- S.D. Singh Jadaun, M.A.S. Alam Khan
Counsel for Respondent :- Govt. Advocate, Abhinav Singh
with
Case :- CRIMINAL APPEAL No. - 821 of 2015
Appellant :- Kallu
Respondent :- State of U.P.
Counsel for Appellant :- M.J. Akhtar,V.M. Zaidi
Counsel for Respondent :- Govt.Advocate,Abhinav Singh
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
1. Both these appeals challenge the judgement and order dated 18.2.2015, passed by Additional District & Sessions Judge, Court No.16, Muzaffar Nagar, in S.T. No. 595 of 2007 (State of U.P. Vs. Shahab Alam and others), S.T. No. 1140 of 2007 ( State of U.P. vs. Kallu), both arising out of Case Crime No. 1422 of 2006, under Sections- 302/34, 323/34, 506 I.P.C., and S.T. No. 596 of 2007 (State of U.P. vs. Samoon), arising out of Case Crime No. 1477 of 2006, under Section 25/4 Arms Act, registered at Police Station- Nai Mandi, District Muzaffar Nagar. All these sessions trials were tried jointly and were decided by common judgment, acquitting all the accused for offence under Section 506 I.P.C. and accused- Samoon for offence u/s 25/4 Arms Act and convicting all the four accused for the offence under Section 304(I)/34 I.P.C. for life imprisonment with a fine of Rs. 20,000/- and for offence under Section 323/34 I.P.C., for one year rigorous imprisonment with fine of Rs. 1000/-. All the sentences were directed to run concurrently. In furtherance, the fine of Rs. 25,000/- has been imposed upon them to pay as compensation to the informant side.
2. The trial of accused Shahab Alam, Samoon and Yaseen, in respect of offence punishable under Section 302/34, 323/34, 506 I.P.C. was the subject matter of adjudication in Sessions Trial No. 595 of 2007 and the trial in respect of accused Kallu for the offences punishable under Sections 302/34, 323/34, 506 I.P.C. was the subject matter of adjudication in Sessions Trial No. 1140 of 2007 whereas the trial in respect of accused Samoon for offence punishable under Section 25/4 of the Arms Act was the subject matter of adjudication in Sessions Trial No. 596 of 2007. All the cases being triable by Court of Sessions were committed to it by the Chief Judicial Magistrate, vide orders dated 10.4.2007, 31.7.2007 and 17.11.2020, respectively. The accused, on being produced before the Sessions Court, pleaded not guilty and, therefore, were arraigned as accused.
3. As per prosecution version, on the date of incident, the complainant and the deceased went to the house of Samoon (accused) so as to enquire as to why they had beaten and misbehaved with their grand mother in the morning on which some altercation took place between the parties and all of a sudden, Samoon from somewhere brought a knife and stabbed the deceased. This stabbing proved fatal and he died on way to hospital. The other accused got themselves armed with what can be said to be sticks and rods and all of them, in unition so as to bring home their common intention, assaulted the other injured.
4. On the accused pleading not guilty, they were tried and the prosecution led its evidence by examining about 11 witnesses which are as follows:
Deposition of Mohd. Dilshad
Deposition of Mohd. Dilshad
17.8.2007
20.8.2007
PW1
PW1
Deposition of Mohd. Tazul
Deposition of Mohd. Tazul
Deposition of Mohd. Tazul
Deposition of Mohd. Tazul
Deposition of Mohd. Tazul
12.11.2007
2.6.2008
17.2.2009
26.5.2009
27.7.2009
PW2
PW2
PW2
PW2
PW2
Deposition of Dr. Rakesh Kumar
6.10.2009
PW3
Deposition of Dr. Chandra Prasad Singh
23.11.2009
PW4
Deposition of Dr. Vikram Singh
7.1.2010
PW5
Deposition of Rajesh Kumar
29.1.2010
PW6
Deposition of Alok Singh
Deposition of Alok Singh
13.9.2011
8.5.2013
PW7
PW7
Deposition of Sukhpal Singh
Deposition of Sukhpal Singh
9.11.2013
4.7.2014
PW8
PW8
Deposition of Virendra Singh
24.5.2013
PW9
Deposition of Omvir Singh
1.7.2013
PW10
Deposition of Head ConstableTejpal Singh
13.11.2013
PW 11
5. In support of their ocular version following documents were filed:
1.
F.I.R.
8.11.2006
Ex.Ka.9
2.
F.I.R.
16.11.2006
Ex.Ka.25
3.
Written Report
8.11.2006
Ex.Ka.1
4.
Application
11.11.2006
Ex.Ka.2
5.
Arrest Memo
16.11.2006
Ex.Ka.14
6.
Recovery memo of knife
16.11.2006
Ex.Ka.13
7.
Injury report
8.11.2006
Ex.Ka.3
8.
Injury Report
8.11.2006
Ex.Ka.4
9.
Injury Report
8.11.2006
Ex.Ka.5
10.
Letter
Ex.Ka.6
11.
Physical Examination
8.11.2006
Ex.Ka.7
12.
P.M. Report
10.11.2006
Ex.Ka.8
13.
Panchayatnama
10.11.2006
Ex.Ka.18
14.
Charge sheet Mool
29.11.2006
Ex.Ka.16
15.
Charge sheet Mool
26.4.2007
Ex.Ka.17
16.
Charge sheet Mool
22.11.2006
Ex.Ka.28
17.
Site Plan with Index
9.11.2006
Ex.Ka.12
18.
Site Plan with Index
23.11.2006
Ex.Ka.15
19.
Site Plan with Index
19.11.2006
Ex.Ka.27
20.
G.D. Report
Ex.Ka.10
21.
G.D. Report
Ex.Ka.11
22.
Letter to C.M.O.
Ex.Ka.19
23.
Letter
Ex.Ka.20
24.
Photo Lash
Ex.Ka.21
25.
Chalan Lash
Ex.Ka.22
26.
G.D. Report
Ex.Ka.23
27.
Information to Meerut Medical
Ex.Ka.24
28.
G.D. Report
Ex.Ka.26
6. We have heard Sri V.M. Zaidi, learned counsel for accused- Kallu accused and Sri S.D. Singh Jadaun, learned counsel for rest of the accused and the learned A G.A. for the State.
7. Learned counsel for the appellants have taken us through the records, have read the testimony of each and every witness and have made their submissions.
8. It is submitted by the counsel in unition that the appellants were not aggressors; they were in their own home. It was the deceased and the injured who came to the residence of Samoon. It is further submitted by the counsel for the appellants that so as to bring home the charges there should have been a common intention to do away with the deceased which is absent. He has relied on the testimony of the doctor to contend that even from the testimony of the doctor, it cannot be culled out that the deceased had been done to death and that the appellants had any common intention. There was no participation of the accused in unition. Learned counsel for the appellants has also requested the Court to exercise what can be said to be our power under Section 357(3) Cr.P.C. as long time has elapsed and one of the accused is in jail for more than 10 years and, in the alternative, it is submitted that the Court may reduce the sentence looking to the gravamen of the offence.
9. It is further submitted by Sri Zaidi that no independent witness has been examined except P.W. 1 and, therefore, they can not be convicted as per section 34 IPC. It is further submitted that Yasin, Sahab Alam and Kallu are on bail.
10. Learned counsel for the appellants has relied on the judgements of Aflatoon Vs. State of U.P. passed on 18.8.2017 in Criminal Appeal No. 2108 of 2003; Arvind Sharma Vs. State of U.P. passed on 19.8.2017 in Criminal Appeal No. 5441 of 2003; Munna @ Nikkhlesh Sharma Vs. State of U.P. passed on 31.07.2017 in Criminal Appeal No. 3032 of 2004 and Furqan Vs. State of U.P. passed on 31.08.2017 in Criminal Appeal No. 5095 of 2004, so as to contend that the case does not fall within the definition of section 34 I.P.C. The persons who have been named as accused did not carry any weapon. Unfortunately, the other except P.W. 2, who has been injured, is not examined. The F.I.R. also no where brings out that it was an assault by deadly weapon.
11. Per contra the counsel for the State has heavily relied on the judgement of the trial Court. He has further submitted that the circumstances go to show that the chain of circumstances is against the appellants. The evidence of altercation between the deceased and the accused is borne out from the record itself. The presence of eye witnesses cannot be said to be vitiated in any manner.
12. It would be relevant for us to take ourselves to the evidence of PW-3 first. The lacerated wound is 1.3 cm on the injured can be said to be caused by a weapon as opined in oral testimony. He has also been cross-examined. The doctor Rakesh Kumar's evidence clinches the issue. It can be seen that one of the injured, namely, Mohd. Tajul (PW-2) was examined on oath but the other injured, namely, Gulfam was not examined on oath.
13. So as to make out a case under Section 304(I)/34 I.P.C. conduct of accused and the witnesses must be also looked into.
14. We are concerned with the punishment. The involvement of the appellants is proved beyond reasonable doubt. However, whether they had same object and intention of doing away with will have to be seen on the touchstones of the principles enunciated by the Apex Court and reiterated in Subed Ali and Ors. Vs. State of Assam, 2020 (10) SCC 517 and the judgement in the case of Ilangovan vs. State of Tamil Nadu, (2020) 10 SCC 533.
15. The evidence which is before us goes to show that there was earlier dispute regarding land by and in between the parties. The deceased along with the injured had gone to the house of accused where they have altercation and one single blow was given by Samoon which proved fatal. The other three cannot be said to have had a common intention even Samoon has not been held guilty for offence u/s 302 I.P.C.
16. The learned Judge, in our opinion can be said to have not sifted the evidence as should be done for convicting people with the aid of Section 34 I.P.C. The act of all the accused cannot be said to have resulted out of what is known as common intention, therefore, the fact that four people were present but there was any existence of common intention or there was commission of overt act was not established in the present case. Only presence of the accused at the scene of occurrence is there. There was no common intention nor there was collective participation. The offence was committed without any common intention and all they had attacked the other injured in different ways. The motive was absent and relevance of proving motive is on the State as held by the Apex Court in Subal Ghorai vs. State of West Bengal, (2013) 4 SCC 607.
17. At the end of the oral submissions and the judgements cited by the counsel for the appellants, two things emerge - one that the incident occurred and it cannot be said that this is a case of clean acquittal. The reason being the presence of all the accused has been identified, which brings down the edifice of Sri Zaidi's submission that the incident occurred at night and there was no light. The submission of learned counsel for State that they were known to each other is accepted. It is submitted by counsel for appellants that the court below has convicted all accused under Section 304(I) I.PC. read with section 34 I.P.C.
18. In our opinion, we have to go into the genesis of the incident so as to see whether there was a common intention of doing away with the deceased as the deceased and other injured had come to the home of Samoon. It is nobody's case that Samoon and all were waiting for the injured to come and it is submitted that it cannot be said that there was any common intention to injure the injured or do away with the deceased.
19. The ingredients of Section 34 read as follows:
"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
20. It was held in Jai Bhagwan Vs. State of Haryana, 1999 Cr.L.J. (S.C.), that to convict accused with aid of Section 34 I.P.C., apart from the fact that there should be two or more accused, two factors must be established:
1. Common intention, and
2. Participation of the accused in the commission of an offence is not a must.
21. In Parasa Raja Manikyala Rao and another Vs. State of A.P., (2003) 12 SCC 306, the Apex Court has held as under :-
"In appeal, the High Court affirmed the conviction of A-1 but reversed the acquittal of the appellants and held them guilty of the offence punishable under Section 302 read with Section 34 I.P.C.
Section 34 really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually."
22. In State of Haryana Vs. Tej Ram, 1980 (Supp) SCC 323, the Apex Court has held as under:-
"These circumstances unerringly point to the conclusion that both the appellant and his brother had a common intention to cause death of the deceased and in pursuance of such intention and a prearranged plan, they participated in the assault on the deceased killing him at the spot. Therefore, the appellant must be convicted under Section 302 read with Section 34 I.P.C.
If the author of the two injuries on the head of H was a single person, then it was difficult to found upon this basis the conviction of others with the aid of Section 34"
23. In Ram Prasad and others Vs. The State of U.P., (1976) 1 SCC 406, the Apex Court has held as under:-
"That all the four appellants came together to the scene of occurrence does not show that H and K shared the common intention of R and M at the time of their giving the lathi blows. That all the appellants ran away in the same direction is inconsequential. That the lathis would be effectively used in forcible occupation of land would have been relevant under Section 149 I.P.C. and not under Section 34"
24. Once we hold that there is no attraction of Section 34 I.P.C., we will have to see what was the role played by each accused. The incident cannot be said to have happened on account of sharing of a common intention as submitted by the counsel for the State as the incident was never pre-meditated. There was a heated altercation between the parties. The incident occurred at the residence of Samoon, meaning thereby that he had not gone to the place of the incident. However, we are unable to accept the submission of Sri Jadaun that the complainant and other injured were at the aggression.
25. As far as role of all the accused is concerned, it can be seen that they have injured other witnesses as is clear from the statements of PW-3, PW-2 and PW-1 and , therefore, the offence which they have committed will also have to be classified. They were armed with what can be said to be weapons. They have caused what can be said to be grievous hurt. Sections 319 and 320 I.P.C. read with Sections 324 and 323 I.P.C. read as follows:
"319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
(First) -- Emasculation.
(Secondly) --Permanent privation of the sight of either eye.
(Thirdly) -- Permanent privation of the hearing of either ear,
(Fourthly) --Privation of any member or joint.
(Fifthly) -- Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(Eighthly) --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to in-hale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
323. Punishment for voluntarily causing hurt.
--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
26. Section 34 of the IPC pre-supposes, there must be common intention and participation of the accused in commission of an offence.
2. Participation of the accused in the commission of an offence.
Criminal intention is the highest form of blameworthiness of mind or mens rea. Intention occupies a symbolic place in criminal law. As the highest form of the mental element, it applies in murder and the gravest form of crimes in the criminal justice system. The terms ''intention' is not defined in Indian Penal Code but section 34 of IPC deals with common intention. The intention made among several people to do something wrong and act done in that manner in which it was formulated comes under the sanction of Section 34 of IPC
The distinction between similar intention or criminal intention was brought forth by the Supreme Court in Pandurang V State of Hyderabad. Supreme Court emphasized on this point that prior concert need not be something always very much prior to the incident, but could well be something that may develop on the spot, on te spur of the moment. In this case Ramchander Shelke (deceased) with his wife's sister went to the field. While Ramchander went to the river side the five persons including thre appellant (Pandurang, Tuka, and Bilia) attacked him.
27. On appreciation of evidence and the decisions cited before us, we are convinced that the prosecution does not bring home that accused are required to be punished with aid of section 34 I.P.C. There was no intention to any act which was well planned. The incident occurred all of a sudden.
28. In State of Haryana Vs. Tej Ram, AIR 1980 SC 1496, it is held that circumstances which un-erringly comes to the conclusion that accused had common intention to cause death only then they must be convicted. We are convinced that the offence which is made out is not under section 304(1) read with 34 I.P.C. The decision in Ram Prasad Vs. State of U.P. will help the accused.
29. This takes us to the question of punishment. As far as Samoon is concerned, he is in jail for more than 14 years. We substitute the life imprisonment to that of already undergone and he shall be released forthwith if not required in any other offence. However, this would be coupled with the fine imposed by the court below and he would pay the total fine out of which 80 percent will go to the family of the bereaved. The fine be deposited within 12 weeks of his release failing which he shall undergo 6 months simple imprisonment in default.
30. As long time has elapsed, the other co-accused, namely, Shahab Alam, Yaseen and Kallu, whose role as scribed about is not that of commission of murder or rather murder amounting to culpable homicide but have caused injuries which would fall within the provisions of Section 324 I.P.C. The punishment is that which they have undergone and the fine would be enhanced to Rs. 5000/- to each looking to their age, failing which three months further imprisonment.
31. The appeals are partly allowed. As far as Samoon is concerned he be released from jail immediately if not wanted in any other offence.
32. The record be sent back to the trial court.
33. The judgement be sent to the jail authorities.
34. The fine, which is already deposited by the accused, will be given a set off.
Order Date :- 11.1.2021
Vandana
