Swaran Singh And Another vs The State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 1780 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 01.05.2009
+       CRL. A. 199/1994
MAL SINGH                                                  ... Appellant
                                  - versus -


THE STATE (GOVT. OF NCT OF DELHI)                          ... Respondent

AND CRL. A. 200/1994 SWARAN SINGH AND ANOTHER ... Appellants

- versus -

THE STATE (GOVT. OF NCT OF DELHI) ... Respondent

Advocates who appeared in this case:

For the Appellants : Ms Rebecca M. John with Mr Vishal Gosain For the Respondent : Mr Sunil Sharma

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P.K. BHASIN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

1. These appeals are directed against the judgment dated 30.08.1994

and the order on sentence dated 31.08.1994 passed by the learned

Additional Sessions Judge in Sessions Case No. 37/88 arising out of

FIR No. 480/82 registered at Police Station Ashok Vihar under

Sections 302/307/451/324/34 IPC and Section 27 of the Arms Act,

1959.

2. The three appellants were charged for committing the murder of

one Kharak Singh in furtherance of their common intention under the

provisions of Section 302 read with Section 34 IPC. They were also

charged with the commission of offences punishable under Section 307

read with Section 34 IPC for the injuries sustained by Malkiat Singh

and Chanchal Singh. Thirdly, they were also charged for having

voluntarily caused hurt to Praveen Sharma and Sushma Sharma with

fire arms and thereby they were alleged to have committed an offence

punishable under Section 324 read with Section 34 IPC. The appellant

Sikander Singh was also charged with the offence under Section 27 of

the Arms Act for having kept a Khukri in his possession for an

unlawful purpose and for having committed an offence therewith.

Similarly, Mal Singh was also charged for an offence under Section 27

of the Arms Act for keeping in his possession a rifle and live cartridges

for unlawful purposes, i.e., to commit the abovementioned offence.

After the completion of the trial, the learned Additional Sessions Judge

convicted the appellants for committing the offence punishable under

Section 302 read with Section 34 in respect of the murder of Kharak

Singh. The appellants Sikander Singh and Swaran Singh were also

found guilty for the offence under Sections 307/34 IPC for causing

injuries to Chanchal Singh and Malkiat Singh with a view to cause their

deaths. The appellant Mal Singh was also found guilty for having

caused injuries with bullets on the persons of Sushma Sharma and

Praveen Sharma. He was accordingly convicted under Section 324

IPC. The said appellant was also found guilty for the charge under

Section 27 of the Arms Act. The accused Mal Singh, Sikander Singh

and Swaran Singh were sentenced to undergo imprisonment for life

under Sections 302/34 IPC. The accused Mal Singh was also sentenced

to undergo rigorous imprisonment for a period of one year under

Section 27 of the Arms Act and to pay a fine of Rs 500/- and in default

whereof to further undergo simple imprisonment for three months. He

was also sentenced under Section 324 IPC to undergo imprisonment for

a period of one year and a fine of Rs 500/- and in default whereof to

further undergo three months simple imprisonment. The accused

Sikander Singh and Swaran Singh were also sentenced under Sections

307/34 IPC to undergo imprisonment for a period of five years each

and to pay a fine of Rs 1000/- each and in default whereof to further

undergo simple imprisonment of six months each.

3. The learned counsel appearing on behalf of the appellants

contended that the prosecution story was that appellant Mal Singh‟s son

Paramjit got married to Paramjit Kaur, who is the daughter of Mahinder

Singh (PW-1). There were allegations of maltreatment of Paramjit

Kaur at the hands of the appellants. There were also allegations of

dowry related demands being made by the appellants‟ family. There

was thus acrimony between Mal Singh and his family on the one side

and, Mahinder Singh on the other. On 01.11.1982, there was a

marriage in the family of Mahinder Singh. On that occasion, the Barat

of Baljit Singh had gone to Punjab and had returned in the evening with

the bride. All the people had assembled at PW-8 Babu Singh‟s house

at A-11, Phase-II, Ashok Vihar. It is the case of the prosecution that

Mal Singh was further angered by the fact that his son Paramjit, who

was married to Paramjit Kaur and who was Mahinder Singh‟s daughter,

as already mentioned above, had also joined the Barat party and had

gone to attend the wedding. The suggestion on the part of the

prosecution is that Mal Singh was angered by this fact in as much as,

according to him, Mahinder Singh had won over his son Paramjit, a

fact which did not find favour with Mal Singh. As a result of this, it is

the case for the prosecution that Mal Singh alongwith his other two

sons, Swaran Singh and Sikander Singh, left their residence and went to

the house of PW-8 [Babu Singh] with the common intention of

committing the murder of Mahinder Singh who would be present in the

gathering. Mal Singh was armed with a .315 rifle. Swaran Singh was

said to be armed with a Gandasa and Sikander Singh was armed with a

Khukri. At about 11.15 p.m. on 01.11.1982, the three appellants are

said to have arrived at PW-8 Babu Singh‟s house mentioned above.

Mal Singh and his said two sons arrived in a truck at Babu Singh‟s

house. They started abusing. They abused PW-1 [Mahinder Singh]

and asked him to come close to them as they wanted to deal with him

and said - "ljiap rsjs dsk ns[kuk gSS] b/kj vk" (Sarpanch tere ko

dekhna hai, idhar aa). Mal Singh is also said to have stated that Babu

Singh had received a handsome dowry, whereas he, PW-1 [Mahinder

Singh] did not give anything to him in the marriage of his daughter,

i.e., Paramjit Kaur with Mal Singh‟s son Paramjit. Thereafter, PW-1

[Mahinder Singh], deceased Kharak Singh, PW-5 [Malkiat Singh], PW-

8 [Babu Singh] and PW-6 [Chanchal Singh] went to the gate near the

accused. Malkiat Singh, Chanchal Singh and Kharak Singh intervened

between Mal Singh and PW-1 [Mahinder Singh] and asked Mal Singh

not to quarrel. It is then that Mal Singh shouted that he would kill PW-

1 [Mahinder Singh] and if the others intervened, they would also be

killed. Thereafter, Mal Singh fired two gun shots and Kharak Singh

was hit by the said gun shots in the abdomen and in the upper right

thigh. He fell down. Sikander Singh is then alleged to have given a

Khukri blow to Chanchal Singh on his hand and Swaran Singh is said

to have given a Gandasa blow to Malkiat Singh on his neck when the

latter were running away and entering the house. All the accused then

fled away in the truck in which they had come and threatened PW-1

that they would kill him some other time although he had managed to

save himself on that day. While running away, Mal Singh is said to

have fired two more shots in the air from his gun. It appears that the

shots fired in the air hit Sushma Sharma and Praveen Sharma who were

in the verandah of their house at some distance. They, however,

received simple injuries.

4. The learned counsel for the appellants submitted that the entire

prosecution version is founded on the theory of maltreatment and

dowry demands. According to her, both Paramjit Kaur [DW-1] and

Paramjit Singh [DW-2] have testified to the effect that there was no

maltreatment of Paramjit Kaur nor was there any demand for dowry

made by the appellants. The learned counsel also referred to D.D. 12A,

which is exhibit PW-18/A, wherein the incident has been referred to as

a dacoity incident in the house of Babu Singh. According to her, some

dacoity incident took place in the house of Babu Singh‟s and the

appellants have falsely been implicated in the present case.

5. The learned counsel for the appellants further contended that, in

any event, the appellants Swaran Singh and Sikander Singh cannot be

convicted with the aid of Section 34 for the offence punishable under

Section 302 IPC in connection with the murder of Kharak Singh. She

submitted that, even if it is assumed that all the appellants had the

common intention of committing the murder of Mahinder Singh, it was

not Mahinder Singh who was killed, but Kharak Singh. According to

the learned counsel, the murder of Kahark Singh was not in furtherance

of the common intention and certainly such an intention was not shared

by the appellants Swaran Singh and Sikander Singh. It was the

singular act of Mal Singh. She also contended that insofar as the

appellants Swaran Singh and Sikander Singh are concerned, even the

offence punishable under Section 307/34 IPC was not made out against

them inasmuch as both Malkiat Singh and Chanchal Singh had only

received simple injuries and, therefore, it was a case which would be

covered by Sections 324/34 IPC.

6. The learned counsel appearing for the State submitted that the

trial court has rightly convicted all the appellants for the offences

punishable under Sections 302/34 IPC as also the appellants Swaran

Singh and Sikander Singh for the offences punishable under Sections

307/34 IPC and the appellant Mal Singh for other offences covered

under Sections 324/34 and Section 27 of the Arms Act. The learned

counsel submitted that the trial court has correctly invoked the

provisions of Section 34 along with Section 302 to convict the

appellants Sikander Singh and Swaran Singh also. He submitted that

all the three appellants left their home armed with a rifle, a Gandasa

and a Khukri with the intention of committing the murder of Mahinder

Singh. They had arrived at the place where Mahinder Singh was

present and, in fact, Mal Singh even fired at Mahinder Singh, but it so

happened that it was Kharak Singh who got shot. According to him,

the appellants had done all that they could do to carry out their common

intention and it was only by a twist of fate that instead of Mahinder

Singh, it was Kharak Singh who got shot and who died. Consequently,

he submitted that the trial court had correctly invoked Section 34 to

convict all the appellants for the offence punishable under Section 302

IPC.

7. We have heard the counsel for the parties and have examined the

evidence on record. Insofar as the conviction of the appellant Mal

Singh for the offence punishable under Section 302 IPC for having

committing the murder of Kharak Singh is concerned, we are of the

opinion that the trial court has rightly convicted him. We say so

because there are several eye witnesses, namely, PW-1 [Mahinder

Singh], PW-4 [Megh Singh], PW-5 [Malkiat Singh], PW-6 [Chanchal

Singh], PW-7 [Jagdish Singh] and PW-8 [Babu Singh], all of whom

have confirmed the fact that Mal Singh was armed with a rifle and he

shot Kharak Singh with the same. The testimonies of these witnesses

to this effect have not been shaken by the defence in cross-examination.

Apart from this, we have also examined Exhibit PW-14/A, which is the

report of the Central Forensic Science Laboratory dated 22.12.1982.

The said report indicates that "the .315 rifle (marked W/1) of parcel-8 is

in working order and had been fired through". More importantly, it

also indicates that "the three .315 cartridge cases (marked C/1 to C/3)

of parcel 2(i), 2(ii), 2(iii) respectively had been fired from the .315 rifle

(W/1) of parcel-8". It is an admitted position that these cartridges were

recovered from the spot, i.e., from outside the residence of PW-8 [Babu

Singh] at A-11, Phase-II, Ashok Vihar. From this, two things are

apparent. First of all, these were the cartridge cases which were fired

from the rifle belonging to Mal Singh. Secondly, these cartridges were

recovered from the spot. The inescapable conclusion is that Mal Singh

fired his rifle and it is because of the bullet injuries that Kharak Singh

passed away. Consequently, there cannot be any doubt that Mal Singh

committed the murder of Kharak Singh.

8. Insofar as the question of Swaran Singh and Sikander Singh

being convicted under Sections 307/34 IPC is concerned, there is also

no manner of doubt in our minds that they have rightly been convicted

under the said provisions. The testimonies of all the eye witnesses are

clear and not contradicted in material particulars. Therefore, we are of

the view that the trial court has rightly convicted the appellants Swaran

Singh and Sikander Singh for offences under Sections 307/34 IPC in

respect of the injuries caused by them to Malkiat Singh and Chanchal

Singh both of whom have also confirmed the same in their depositions

as PW-5 and PW-6 respectively. Insofar as other offences are

concerned, namely, the offence under Section 27 of the Arms Act as

also the offence punishable under Section 324 in respect of Mal Singh

for having caused injuries on Praveen Sharma and Sushma Sharma, the

same are not seriously agitated before us. In any event, we find that the

trial court has come to the right conclusion upon a consideration of the

evidence against the said Mal Singh.

9. The only question that was strenuously argued before us was the

issue whether Mal Singh‟s sons, namely, Swaran Singh and Sikander

Singh could be roped in for the offence under Section 302 IPC with the

aid of Section 34 IPC or not. The learned counsel for the appellants

placed before us four decisions for our consideration. The first

decision was that of Dharam Pal and Others v. State of Haryana:

AIR 1978 SC 1492. The Supreme Court in that case observed as:-

"13. The case of Surta and Samme Singh, appellants, however, stands on a different footing. Their convictions for offences under S. 302/34 and S. 307/34 of the IPC cannot, in our opinion be sustained. It is true that these persons also accompanied Dharam Pal but that was only with the avowed intention of teaching a lesson to Hari Ram, PW6. There is no material to indicate that there was a pre-arranged plan to murder or to attempt to commit the murder of any person who might intercede to save Hari Ram, P.W. 6. The observations of the Sessions Judge that the appellants accompanied Dharam Pal not only with the common intention to beat Hari Ram but also with the intention of injurying (sic) anybody who obstructed them in carrying out the criminal act of beating Hari Ram are not borne out by the evidence adduced by the prosecution. There is nothing on the record to show that the intention which Dharam Pal might have secretly formed and entertained to deal with any person other than Hari Ram, P.W. 6 who might choose to intervene on his behalf was known to Surta and Samme Singh. There is also nothing on the record to establish that Surta and Samme Singh said or did anything in respect of Sardara Singh, deceased or Singh Ram, P.W. 7 or any other person which may go to indicate that they acted in concert with Dharam Pal in murdering Sardara Singh, deceased or in attempting to murder Singh Ram, P.W. 7. The acts attributed to them are in respect of Hari Ram only.

14. It may be that when some persons start with a pre- arranged plan to commit a miner offence, they may in the course of their committing the minor offence come to an understanding to commit the major offence as well. Such an understanding may appear from the conduct of the persons sought to be made vicariously liable for the act of the principal culprit or from some other incriminatory evidence but the conduct or other evidence must be such as not to leave any room for doubt in that behalf.

15. A criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the

principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no law to our knowledge which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender. As already stated, there is no evidence to justify the conclusion that Surta and Samme Singh, appellants shared the common intention with Dharam Pal to commit the murder of Sardara Singh or to make an attempt on the life of Singh Ram and that the said acts were committed by Dharam Pal in furtherance of the common intention of all the appellants. The common intention denotes action in concert and necessarily postulates a pre-arranged plan or prior meeting of minds and an element of participation in action. As pointed out above, the common intention to commit an offence graver than the one originally designed may develop during the execution of the original plan e.g. during the progress of an attack on the person who is intended to be beaten but the evidence in that behalf should be clear and cogent for suspicion, however strong, cannot take place of the proof which is essential to bring home the offence to the accused.

16. As there is nothing in the prosecution evidence to show that it was in the contemplation of Surta and Samme Singh, appellants not only to give a thorough beating to Hari Ram, P.W. 6 but also to deal with any other person who might choose to intervene on his behalf, we find it difficult to hold that they accompanied Dharam Pal, appellant with the common intention of murdering Sardara Singh, deceased or with the intention of attempting to murder Singh Ram P.W. 7."

(Underlining added)

10. The next decision is in the case of Sheoram Singh and Another

v. State of U.P.: AIR 1972 SC 2555. In that case, the Supreme Court

has observed as under: -

"5. Mr. Goyal on behalf of the appellants has not challenged before us the conviction of Jumman appellant for the offences under Section 307 read with Sec. 149 and Section 147 Indian Penal Code. Learned counsel has further not challenged the conviction of Sheoram Singh appellants for offences under Section 307 and 148 Indian Penal Code. The only contention which has been advanced by Mr. Goyal before us is that the conviction of Sheoram Singh appellant for the offence under Section 302 read with Section 149 Indian Penal Code is not well founded. There is, in our opinion considerable force in this contention. It would appear from the resume of facts given above that the common object of the unlawful assembly, of which Sheoram Singh and other accused were members, was to cause the death of Ram Dularey Singh. None of them had any enmity with Har Narain Singh or any motive to kill him. Har Narain Singh, no doubt, was killed as a result of the shot fired by Arjun Singh, but there is nothing on record to show that Arjun Singh fired the shot at Har Narain Singh in prosecution of the common object of the unlawful assembly. The High Court has acquitted the accused, other than Arjun Singh and Sheoram Singh, for the offence under Section 302 read with Section 149 Indian Penal Code on the ground that the murder of Har Narain Singh was not the initial object of the unlawful assembly and the firing at him was the result of developments which could not have been anticipated. If the other five accused were acquitted and not found guilty of the offence under Section 302 read with S. 149 Indian Penal Code in connection with the death of Har Narain Singh, it is not clear as to how the conviction of Sheoram Singh for the said offence could be sustained. The reasons which led to the acquittal of the other five accused for the offence under S. 302 read with Section 149 Indian Penal Code held equally good for the acquittal for that offence of Sheoram Singh.

6. Mr. Uniyal on behalf of the State has argued that even if the conviction of Sheoram Singh for the offence

under Section 302 read with Section 149 Indian Penal Code cannot be sustained, he is guilty of the offence under Section 302 read with S. 34 Indian Penal Code because the circumstances of the case show that Arjun Singh fired the shot at Har Narain Singh in furtherance of the common intention of Arjun Singh and Sheoram Singh. This submission, in our opinion, is not well founded. There is nothing to show that there was any exhortation by Sheoram Singh to Arjun Singh to fire at Har Narain Singh. Indeed, the High Court has not accepted the evidence of exhortation to Arjun Singh by any of the other accused before Arjun Singh fired at Har Narain Singh. The prosecution has, no doubt, led evidence to show that Arjun Singh before firing the shot at Har Narain Singh told him that if he did not turn out Ram Dularey Singh from his house, it would be bad for him (Har Narain Singh) also. These words, undoubtedly, indicate the attitude of Arjun Singh and show that he was not willing to spare Har Narain Singh if the latter was not prepared to turn out from his house Ram Dularey Singh. It is, however, difficult to infer from that exclamation of Arjun Singh that Sheoram Singh shared the intention of Arjun Singh and that the shot was fired by Arjun Singh at Har Narain Singh in furtherance of the common intention of Arjun Singh and Sheoram Singh. There is, indeed, nothing on the record to indicate that Sheoram Singh in any way encouraged his father, Arjun Singh, to kill Har Narain Singh. Sheoram Singh, no doubt, fired a shot at Ram Dularey Singh and for that he has been convicted under S. 307 Indian Penal Code, but it does not follow from that that the shot at Har Narain Singh by Arjun Singh, was also fired in furtherance of the intention of Sheoram Singh. It is undeniable that common intention can develop during the course of an occurrence, but there has to be cogent material on the basis of which the court can arrive at that finding and hold an accused vicariously liable for the act of the other accused by invoking Section 34 of the Indian Penal Code."

(Underlining added)

11. The third case referred to by the learned counsel was that of State

of U.P. v. Rohan Singh and Another: 1996 Cri. L. J 2884 (SC). This

decision was cited for the proposition that there is a distinction between

similar intention and common intention and the courts must always be

aware of such a distinction. This was also cited for the proposition that

the presence of several persons together is not sufficient to infer

common intention. There must be something more.

12. The last decision cited by the learned counsel for the appellants

was that of Rajagopal Swamy Konar and Another v. State of T.N.:

1995 SCC (Cri) 184, wherein the Supreme Court observed as under:-

"7. So far as A-3 is concerned the overt act attributed to her is that she along with A-2 caught hold of Ramaswamy and fell him down. The High court held that she would not have shared the common intention. In our view the same reasoning applies to A-2 so far as the murder charge is concerned. It is only A-1 who inflicted the two fatal blows one on each of the deceased and, therefore, a clear case of murder is made out against him. So far as A-2 is concerned he inflicted simple injuries with the stick on PW 2 and one on the deceased Ramaswamy. Therefore, common intention to kill the two deceased cannot be made out against him."

13. On the other hand, Mr Sunil Sharma, appearing for the State,

relied upon the following decisions:-

i) Hethubha and Others v. State of Gujarat: 1970 Cri. L. J 1138;

ii) Parasa Raja Manikyala Rao and Another v. State of A.P.:

2004 Cri. L.J. 390;

iii) Harbans Kaur and Another v. State of Haryana: 2005 (9) SCC 195;

iv) State of M.P. v. Deshraj and Others: 2005 SCC (Cri) 123.

The relevant observations of the Supreme Court in Hethubha (supra)

are as under:-

"13. This Court in the case of Shankarlal Kachrabhai v. State of Gujarat, (1965) 1 SCR 287 = (AIR 1965 SC 1260) said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre- arranged plan. The dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre-arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 of the Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt.

14. Applying these principles to the evidence in the present case it appears that there was pre-arranged plan of the accused to commit offences. All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji. Amarji was in the forefront. The accused attacked him. Vaghji was also attacked and prevented from going to the relief of Amarji. The plea that Amarjit was mistaken for Vaghji would not take away the common intention established by pre-arranged plan and participation of all the accused in furtherance of common intention. The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.

15. In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. In Shankarlal‟s case, (1965) 1 SCR 287 = (AIR 1965 SC 1260) (supra) this Court said that if the common intention was to kill A and if one of the accused killed B to wreak his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable. But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention. All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabled him in pursuance of their pre-arranged plan. Therefore, all the three accused including the appellant must share the liability of murder under Section 302 read with Section 34 of the Indian Penal Code. Further, in view of the finding that the pre-concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established."

(Underlining added)

14. From this decision, it can be discerned that the Supreme Court

relied upon its earlier decision in the case of Shankarlal Kacharabhai

v. State of Gujarat: AIR 1965 SC 1260, wherein the Supreme Court

had observed that if the common intention was to kill „A‟ and if one of

the accused killed „B‟ to wreak his private vengeance, it could not

possibly be in furtherance of the common intention for which others

can be made liable. The Supreme Court, however, clarified that if, on

the other hand, the said person had killed „B‟ believing that he was „A‟

and the common intention was to kill „A‟, the killing of „B‟ would be in

furtherance of the common intention. These observations of the

Supreme Court are very material for coming to a decision in the present

case. But, before we deal with the facts of the present case, it would be

necessary to point out that the Supreme Court, in Parasa Raja

Manikyala Rao (supra), Harbans Kaur (supra), Deshraj (supra), has

reiterated the general proposition in connection with Section 34 IPC.

In Parasa Raja Manikyala Rao (supra), the Supreme Court observed

as under:-

"11. The section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. (See Ramaswami Ayyanagar and others v.

State of Tamil Nadu (AIR 1976 SC 2027). The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence

consists of diverse acts which may be done at different time and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.

12. „Common intention‟ implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Under this section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a pre-arranged plan and prior concert. (See Krishna Govind Patil v. State of Maharashtra (AIR 1963 SC 1413). In Amrik Singh and others v. State of Punjab (1972 Cri. L.J. 465 (SC)) it has been held that common intention presupposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however, difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Maqsoodan and others v. State of U.P. (AIR 1983 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand.

The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nand Sharma and others V. State of Assam (AIR 1977 SC 2252) it was observed that prosecution must prove facts to justify an interference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of S. 34, unless community of designs is proved against him (See Malkhan and another v. State of Uttar Pradesh (AIR 1975 SC 12). In the Oxford English Dictionary, the word "furtherance" is defined as „action of helping forward‟. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12 th Edn. Vol. I pp. 487 and 488). In Shankarlal Kachrabhai and others v. State of Gujarat, (AIR 1965 SC 1260) this Court has interpreted the word "furtherance" as „advancement of promotion‟."

(Underlining added)

15. We may note that in Harbans Kaur (supra), the Supreme Court

made a very pertinent observation with regard to Section 34 IPC that:-

"... The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. ..."

16. To the same effect is the observation of the Supreme Court in the

case of Deshraj (supra). The Supreme Court also noted in Deshraj

(supra) that "Section 34 had been enacted on the principle of joint

liability in the doing of a criminal act". The Supreme Court

categorically observed that "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 the action".

17. In view of the well settled principles with regard to Section 34

IPC, as noted above, we have to come to a conclusion as to whether the

appellants Swaran Singh and Sikander Singh shared the common

intention with Mal Singh for committing the murder of Kharak Singh.

In this connection, we feel that the most important question to be

answered is whether the bullet injuries caused to Kharak Singh were

accidental or were intentional on the part of Mal Singh. It is the case of

the prosecution that while Mal Singh had fired his rifle, he had aimed

the same at PW-1 [Mahinder Singh]. It is in the last moment that

Kharak Singh came in front and he received the bullet injuries. It was

further contended that this was a case where a person set out to commit

the murder of „A‟, but accidently the murder of „B‟ was committed.

According to the learned counsel appearing for the State, this would be

a case which would fall under Section 301 IPC and, therefore, would

not absolve the other persons accompanying Mal Singh, namely, his

sons Swaran Singh and Sikander Singh and, therefore, the provisions of

Section 34 have been rightly invoked. On the other hand, the learned

counsel for the appellants contended that the evidence on record does

not show that Kharak Singh‟s death was accidental or that Mal Singh

did not intend to kill Kharak Singh. In this connection, it would be

relevant to note the testimonies of PW-7 [Jagdish Singh] and PW-8

[Babu Singh]. PW-7 [Jagdish Singh] stated as follows:-

"... At that time, Malkiat Singh, Kharak Singh and Chanchal Singh came forward to intervene and pacify the accd. Upon this, accd. Mal Singh stated that in case they intervened, they would also be not spared. Thereafter accd. Mal Singh aimed his rifle towards Mahinder Singh. At that time, Kharak Singh again tried to pacify Mal Singh and actually came forward to stop Mal Singh from firing at Mahinder Singh. At that time, Kharak Singh again requested Mal Singh not to fire. Thereafter accd. Mal Singh fired two shots from his gun at Kharak Singh, one of those shots hit Kharak Singh on his stomach and the other on his right thigh. On receiving those gun shots, Kharak Singh immediately fell on the ground. Kharak Singh had fallen with his face downward on the front. Malkiat Singh and Chanchal Singh then ran away inside the Kothi to save themselves. ..."

(Underlining added)

Similarly, PW-8 [Babu Singh] also stated as under:-

"... In order to avoid a conflict, Kharak Singh, Malkiat Singh and Chanchal Singh tried to intervene. Upon this, accd. Mal Singh shouted at them by saying that in case they intervened they would also be finished. Thereafter, accd.

Mal Singh tried to fire at Mahinder Singh by aiming his rifle towards him. Kharak Singh tried to intervene and prevent Mal Singh from taking the extreme step. For that purpose Kharak Singh came in between accd. Mal Singh and Mahinder Singh. Thereafter, accd. Mal Singh fired two shots, one at the stomach and the other on the thigh of Kharak Singh. As a result of those blows, Kharak Singh fell at the spot with face downwards. Chanchal Singh and Malkiat Singh in order to save themselves ran inside my house. ..." (Underlining added)

18. From the testimonies of these two witnesses, which are not

materially different from what PW-1 and other eye witnesses, i.e., PW-

4, PW-5 and PW-6, namely, Megh Singh, Malkiat Singh and Chanchal

Singh have stated, it is apparent that Kharak Singh wanted to intervene

and had requested Mal Singh not to quarrel. However, Mal Singh, who

had initially intended to kill Mahinder Singh, also announced that if

anybody were to help Mahinder Singh, he would kill that person also.

Kharak Singh had intervened and it was because of this that Mal Singh

had shot Kharak Singh. It does appear to us that the appellant Mal

Singh intentionally fired at Kharak Singh. It was not an accident that

Kharak Singh got injured and it is not as if Mal Singh had fired at

Mahinder Singh, but, incidentally or accidentally, Kharak Singh got

injured.

19. We have also closely examined the testimony of PW-9 [Dr

Bharat Singh], who had conducted the post mortem examination. We

have also seen the three injuries said to have been caused by gun shots

and they are as under:-

"1. One rounded punctured would over left side lower part of chest 6 ½" below the left nipple and slightly outer size of the wound was .5" in diameter. Wound was going deep in the body tissues. Margins were inverted and abraded through which fatty tissues were protruding out. There was tattooing around the wound in an area 4½ x 3½". There was no blackening and charring around the wound. There was co-bruising around the wound. No foreign matter was present over the wound.

2. One irregular punctured wound on the right side, lower part of chest 6¼ inches below and outer to the right nipple, size 2" x 1" x ?, margin was averted. There was no blackening, charring or tattooing around the wound. There was eccihynosis around the wound. No foreign matter was present on the surface of the wound.

3. One oval lacerated wound on the right thigh on upper outer part size 3"x2"x muscle deep. There was tattooing around the wound in an area of 2"x1½". There was no blackening, charring around the wound. No foreign matter was present on the surface of the wound. This wound had not involved any vital structure of the body."

The said witnesses stated that injury No.1 was caused by a fire arm

fired from a close range and was the wound of entry and its exit wound

was injury No. 2. Injury No.3 was also caused by a fire arm fired from

a close distance. The said witnesses explained injury No. 3 as having

been produced by the grazing effect of a bullet. That is why there are

no entry and exit wounds.

20. From the above, it is apparent that when the first shot was fired,

the bullet entered from the left side of the chest and exited laterally

from the right side of the chest. The second injury, which is a grazing

injury, is on the upper right thigh. From the testimonies set out above,

it is clear that two shots were fired. The first shot caused the injuries 1

and 2 and the second shot caused injury No.3. It is also evident that

when the first shot was fired, Kharak Singh was not facing the assailant

Mal Singh. He was not facing the assailant directly but was in front of

him and when the second injury was caused, Kharak Singh was in a

different position. These injuries as well as the testimonies of the two

eye witnesses and in particular PW-7 [Jagdish] and PW-8 [Babu Singh]

make it clear that two shots were fired and both were directed towards

Kharak Singh. The only inference that can be drawn from this is that

the shots were intended for Kharak Singh and they resulted in the

injuries to Kharak Singh.

21. These circumstances lead us to believe that although the three

appellants shared the common intention of committing the murder of

Mahinder Singh, due to the intervention of Kharak Singh, Mal Singh

took a decision on his own to kill Kharak Singh and shot at him. The

common intention that was shared upto that point broke down and Mal

Singh acted individually. Consequently, we find that section 34, which

after all is a rule of evidence as has been observed by the Supreme

Court, cannot be pressed into service to convict the appellants Swaran

Singh and Sikander Singh for the murder of Kharak Singh.

22. Finally, the learned counsel appearing for the appellants also

submitted that the defence witnesses were summarily rejected by the

trial court and such a procedure ought not to have been adopted

inasmuch as the defence witnesses were also alleged eye witnesses to

the said incident. While we agree that the trial court ought not to have

summarily brushed aside the testimonies of DW-1 and DW-2, we do

not agree with the learned counsel for the appellants that the appellants

ought not to have been convicted. There is clear occular testimony of

the prosecution witnesses leading to the guilt of the appellants, which

has not been shaken in cross-examination.

23. Consequently, though the appellants Swaran Singh and Sikander

Singh are not found guilty of the offence punishable under Section

302/34 IPC, and their conviction and sentences to that extent are set

aside, their conviction and sentences under Sections 307/34 IPC shall

remain unaltered. Mal Singh, however, is found guilty of having

committed the murder of Kharak Singh and, therefore, is convicted

under Section 302 IPC. The appeal is allowed to the limited extent

indicated above. The appellants, who are on bail, shall be taken into

custody for serving out the remainder of their respective sentences.

                                    BADAR DURREZ AHMED, J




May 01, 2009                              P.K. BHASIN, J
V/dutt