Raj Kumar vs State
2015 Latest Caselaw 6838 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRIMINAL APPEAL No.176/2000


                                            Date of decision: 11th September, 2015


         RAJ KUMAR                                                 ..... Appellant
                                  Through    Ms. Inderjeet Sidhu and Ms. Divya,
                                  Advocates.

                                  versus

         STATE                                                  ..... Respondents

                                  Through    Ms. Aashaa Tiwari, APP.

                           CRIMINAL APPEAL No.204/2000


         BHAGWAN DASSS AND OTHERS                                  ..... Appellant
                                  Through    Ms. Inderjeet Sidhu and Ms. Divya,
                                  Advocates.

                                  versus

         STATE                                                  ..... Respondents
                                  Through    Ms. Aashaa Tiwari, APP.

         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA
         HON'BLE MR. JUSTICE R.K.GAUBA

SANJIV KHANNA, J. (ORAL):

This common judgment would decide the appeals filed by Raj

Kumar and Sher Singh @ Shera challenging their conviction under Section

302 read with Section 34 of the Indian Penal Code, 1860 (IPC, for short)

for murder of Amar Singh @ Amaria and under Section 307 read with

Section 34 IPC for attempt to murder Dharma @ Pappu by the impugned

judgment dated 9th February, 2000. By order on sentence dated 15th

February, 2000, the two appellants have been sentenced to imprisonment

for life, fine of Rs.25,000/- and in default, undergo simple imprisonment

for a period of one year for the offence under Section 302 read with

Section 34 IPC. For the offence under Section 307 read with Section 34

IPC, the two appellants have been sentenced to rigorous imprisonment of

five years, fine of Rs.5,000/- and in default, to undergo simple

imprisonment of three months. Out of the fine, if realised, it stands

directed that Rs.50,000/- would be paid as compensation to the legal heirs

of Amar Singh @ Amaria and Rs.25,000/- would be paid as compensation

to injured Dharma @ Pappu.

2. The impugned judgment acquits Budh Ram and Thakur Dass from

the charges under Sections 302 and 307 read with Section 34 IPC. The

State and the victims have not challenged the said findings. Bhagwan

Dass, father of Sher Singh @ Shera a co-appellant in Crl.A. 204/2000, died

during the pendency of the present appeal as recorded in the order dated 1st

May, 2006.

3. We refrain from and do not deem it necessary to refer to the entire

evidence on record and would prefer to deal with the primary issue raised

by the two appellants Raj Kumar and Sher Singh @ Shera.

4. FIR No.290/1991 was registered at police station Sultan Puri on the

basis of the information and statement given by Hira Lal, who had

appeared and deposed before the trial court as PW2. The said FIR

registered on 6th November, 1991, at about 4.30 A.M., was regarding the

occurrence on the Diwali night at about 10.15 P.M. on 5th November, 1991.

Hira Lal (PW2) in the court deposition has stated that, at about 10:15 PM

on 5th November, 1991, he was present at the sweet shop of one Pappu,

where Raju i.e. Raj Kumar, the landlord and one of the appellant, was also

present. Hira Lal (PW2) along with Lal Chand (PW4) had gone there to

drink milk. They had seen four persons, namely, Raju, Sher Singh @

Shera, Thakur and brother of Shera (Budh Ram) were fighting and

quarrelling with Pappu. Shera threw the sweets kept in the shop. Agitated

Pappu, had picked up a palta (a type of karchi) and had threatened that he

would kill Shera and others. In the meanwhile, Amria came to the spot and

snatched the palta from the hands of Pappu. Raju had then exclaimed that

„Maro Salon Ko Inkey Dam Par Hi Yeh Dookan Khali Nahi Karta‟ (beat

them, he is not vacating the shop because of the support from others).

Shera, then snatched the palta from the hands of Amaria, had struck him

on his (Amaria‟s) head. In the meanwhile, Bhagwan Dass (since deceased)

left the spot stating that he would bring his gun. Bhagwan Dass (since

deceased) went to the roof of his house and thereafter had fired 7-8 shots

from his gun. Dharma cried that he had sustained gunshot injury. Hira Lal

(PW2) and Lal Chand (PW4) had concealed themselves under a Chhatri

(chajja). Amaria was taken to Deen Dayal Hospital by his brother and

others, where he was declared as brought dead. Police had taken

measurements at the crime scene and prepared the site plan on his i.e. Hira

Lal‟s (PW2) instructions. PW-2 had also identified the palta and the

licensed gun Ex.P1, which was seized from Bhagwan Dass (since

deceased) and has affirmed that the police had taken the said gun, 7-8

empty cartridges and 18 live cartridges into possession vide seizure memo

Ex.PW2/E. At this stage itself we deem it appropriate to record that as per

the ballistic report, the empty cartridges were fired from the said gun.

5. Testimony of Lal Chand (PW4) affirms the version and narration by

Hira Lal (PW2) that at about 10-10.30 P.M., they were present at the shop

of Pappu Halwai and had noticed that the Halwai and the appellant Raju

were quarrelling with each other. Appellant Shera came to the spot and

had thrown Pappu Halwai to the ground. In retaliation, Pappu Halwai had

picked up the palta from a Karahi and had threatened the four persons,

present there. Amaria intervened and had snatched the palta from Pappu

Halwai. Raju had protested and shouted that Pappu Halwai was not

vacating the shop because of Amaria. Shera snatched the palta from

Amaria and then hit him (Amaria) on his head. Bhagwan Dass (since

deceased) while shouting abuses, had moved away and went to the roof of

his house. He took out his gun and had warned that he would see each one

of them. Bhagwan Dass (since deceased) fired 7-8 shots causing injuries

on Dharma and Amaria. To protect themselves, they had hidden

themselves under a porch. After the firing stopped, Lal Chand (PW4) and

Hira Lal (PW2) ran away and made a telephone call to the police. Amaria

was taken to a nursing home and then to a hospital, where he was declared

as brought dead. In his examination-in-chief, Lal Chand (PW4) has stated

that Bhagwan Dass (since deceased) had fired with his gun and the

appellant Shera had inflicted the palta blow. Amaria and Raju had spoken

as to the reason or motive; Pappu Halwai was not vacating the shop. Lal

Chand (PW4) had asserted that Om Prakash (acquitted) had caught hold of

Amaria and Thakur (acquitted) had hurled abuses but did not inflict

injuries to anyone. Lal Chand (PW4) had also identified the gun ExP-1

used in the occurrence.

6. Dharma (PW6), the injured eye witness, has similarly deposed

regarding his visit to the shop of Pappu Halwai on Diwali night at about

9.30 P.M. Over there, he had noticed Raju and Pappu Halwai were

quarrelling and protesting as he had been asked to vacate and handover

possession of the shop. Raju who was present threw the sweets and Shera

who had come there, had joined him. Pappu Halwai had got agitated when

Raju started throwing the sweets. Shera caught hold of Pappu Halwai by

his neck. Thereupon, Pappu Halwai took out the palta from a karahi.

Amaria to avoid bloodshed took the palta from the hands of Pappu Halwai.

Bhagwan Dass (since deceased) then came to the spot and Shera and Raju

had exclaimed that Pappu Halwai was not vacating the shop. Bhagwan

Dass (since deceased) had stated that "saley khali nahi kar rahey, enko

pakar lo aur main apni bandook ley kar aata hoon" (these fools are not

vacating, catch them and I am bringing my gun). Om Prakash, another son

of Bhagwan Dass (since deceased) also came to the spot and joined them.

Shera snatched the palta from the hands of Amaria and struck the same on

Amaria‟s head. Amaria started bleeding. Thereafter, Shera and Raju along

with another person went upstairs. Bhagwan Dass (since deceased), who

was on the first floor shouted "Bhoon dalo salon ko" (finish them) and then

started firing. He fired two rounds, in which Amaria had sustained injuries

on his head and fell down. Dharma (PW6) also sustained injuries on his

legs, chest and groil and fell down. Thereafter, he did not know what had

happened. He came home after six days and had learnt that Amaria had

died.

7. Vishnu (PW10) is also an eye witness, who had seen Dharma,

Amaria and Pappu Halwai at the latter‟s Halwai shop. Raju, the landlord

had come there and thrown the tray on which sweets were kept. Heated

exchange followed and Bhagwan Dass (since deceased) came and

supported Raju, the landlord. Shera and Raju were asking Pappu Halwai to

vacate the shop. Pappu Halwai, flustered and upset had then lifted the

palta with an intention to hurt Raju, Shera and Prakash. Amaria, who was

present at the spot, snatched the palta from the hands of Pappu Halwai and

advised him not to fight. Shera, thereafter, snatched the palta from the

hands of Amaria and gave a strong blow from the said palta on the head of

Amaria, who started bleeding profusely. The old man [reference is to

Bhagwan Dass (since deceased)] had gone upstairs stating that he would

bring his gun. Bhagwan Dass (since deceased) stood on the terrace (chajja)

and fired. Amaria who was already in injured condition fell down. Dharma

went forward to see Amaria and Bhagwan Dass (since deceased) fired once

again and Dharma sustained a bullet injury on his leg.

8. What is clearly discernible from the statement of the four witnesses

and in fact, also from the version given by Hira Lal (PW2), to the police

which became the substratum of the FIR, is the factum that Shera had

snatched the palta from the hands of Amaria and had hit Amaria with the

said palta. Bhagwan Dass (since deceased), who was present shortly

before the said injury on Amaria‟s head, had by then gone to his house

stating that he would get his gun. Bhagwan Dass (since deceased) did not

come back but had proceeded to the terrace of his house and had fired the

shots. Amaria was hit and had suffered gunshot wounds and died. Dharma

had suffered gunshot injuries. The two appellants Raju and Shera were not

present with Bhagwan Dass (since deceased) on the roof when Bhagwan

Dass (since deceased) had resorted to and had fired from his gun. In fact,

both Raju and Shera were not with Bhagwan Dass (since deceased) at the

time of firing. The eye witnesses in seriatim have deposed that Shera had

hit the palta on the head of Amaria. Later on, they had seen Bhagwan

Dass (since deceased) with the gun on the terrace of his house.

9. The unscaled and scaled site plans marked Ex.PW28/A and

Ex.PW12/A, respectively, indicate the shop of Pappu Halwai and the house

of Bhagwan Dass (since deceased) from where the shots were fired. They

are located at some distance and are not adjacent or in front of each other.

Deceased Amaria and Dharma had suffered gun shot injuries while

standing on the street in front of the house of Bhagwan Dass (since

deceased). Hira Lal (PW2) has testified that initially the quarrel had taken

place in front of the shop and later on the site of occurrence/quarrel was in

front of Bhagwan Dass‟s house. The distance between the shop of Pappu

Halwai and house of Bhagwan Dass (since deceased) as deposed by Hira

Lal (PW2) was about 45 feet. Dharma (PW6) has stated that the distance

between the house of Bhagwan Dass (since deceased) and shop of Pappu

Halwai was about 30-40 feet. Lal Chand (PW4) has accepted that in

Street No.4-5, there were 40-50 houses. Thus, the firing was at a distance

and not in front or outside the shop of Pappu Halwai.

10. Section 34 IPC gives statutory recognition to the principle that if two

or more persons intentionally act jointly or in concert, then each one of

them would be liable for the act of the other. The common intention which

permeates their action pre-supposes prior concert. Such pre-concert and

planning may develop at the spot or at spur of the moment and even during

the course of the commission of the offence, but such concert or plan

should precede the act constituting the offence. Existence of common

intention is a question of fact, which has to be proved primarily by way of

inference from the circumstances in a given case. Thus, Section 34

postulates and requires an element of participation resulting in the ultimate

criminal act. This Section does not envisage a separate act by all the

accused persons for being held responsible for the ultimate criminal act.

The word "act" can denote a single or multiple series of acts. The word

"act" can also include omission and an accused may be liable and

convicted under Section 34 for sharing common intention if his passivity is

with an intention of assisting in furtherance of common intention of all.

Ergo, criminal intent for the purpose of invoking section 34 IPC may be

overt or covert either by active presence or by a distant direction indicating

jointness in the commission of the "act" (see Tukaram Ganpat Pandare

Vs. State of Maharashtra, AIR 1974 SC 514). Presence of those, which in

one way or the other facilitates execution of common design, would

tantamount to actual participation.

11. Section 34 IPC refers to the "act" done by one as a united act of the

immediate perpetrator and his confederates present at that time who were

participants to the act. It does not differentiate between the first degree and

the second degree of participation or who is the principal participant. The

said provision has to be read with Sections 35 and 37 IPC and, therefore,

each of such persons, who joins the act, as stated in Section 35, would get

covered under Section 34 IPC. For elucidation, judgment of Sethi J. in

Suresh and Anr. Vs. State of U.P., AIR 2001 SC 1344 is illustrative as it

elaborately exposits the legal position. This decision refers to an earlier

decision in Barendra Kumar Ghosh vs. King Emperor, AIR 1925 PC 1,

wherein the Judicial Committee dealing with the scope of Section 34 had

observed:-

"...........The words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Section 33 a criminal act in Section 34 includes a series of acts and, further, „act‟ includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait‟. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for „that act‟ and „the act‟ in the latter part of the section must include the whole action covered by „a criminal act‟ in the first part, because they refer to it.

Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to cooperate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. Section 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."

(emphasis supplied)

Referring to the presumption arising out of Section 114 of the

Evidence Act, it was further held:

"As to Section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition; Abhi Misser v. Lachmi Narain. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. Section 114 deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory Because participation de facto (as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by Section 114 brings the case within the ambit of Section 34."

(emphasis supplied)

12. Nevertheless, the essence of the section is that there should be

simultaneous consensus of mind or co-participation in the criminal action.

This intent is mandatory and essential. It has to be established by inference

from conduct and facts. In Crl.A. No.429/2013, Babloo @ Babu vs. State

decided on 10th May, 2013, it has been observed:-

"15. On the question of common intention under Section 34 IPC, the appellants have relied upon Mithu Singh v. State of Punjab 2001 (4) SCC 193, Ajay Sharma v. State of Rajasthan 1999 (1) SCC 174, Suresh & Anr v. State of U.P. 2001 (3) SCC 673, Raj Kumar v. State Vol. 89 (2001) DLT 237 (DB).

Section 34 IPC reads as under:-

"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."

Section 34 makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or pre- arranged plan. However, this does not mean that co- perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and subsequent to the

occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co- assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 are satisfied. We must remember that Section 34 comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants. Further, the expression/term "criminal act" in Section 34 IPC refers to the physical act, which has been done by the co- perpetrators/participants as distinct from the effect, result or consequence. In other words, expression "criminal act" referred to in Section 34 is different from "offence". For example, if A and B strike Lathi at X, the criminal act is of striking lathis, whereas the offence committed may be murder, culpable homicide or simple or grievous injuries. The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the Code. Intention may be an ingredient of an offence and this is a personal matter. For some offences mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 can be invoked for the said offence also. (Refer Afrahim Sheikh & Ors. Vs. State of West Bengal, AIR 1964 SC 1263). Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory.

16. Section 34 IPC also uses the expression "act in furtherance of common intention". Therefore, in each case when Section 34 is invoked, it has to be examined whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable, but if the criminal offence was done or performed is attributable, is primarily connected or was a known or reasonably possible outcome of the preconcert/ contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word "furtherance" propounds a wide scope but the same should not be expanded beyond the intent and purpose of the statute. Russell on Crime, 10th edition page 557, while examining the word "furtherance" had stated that it refers to "the action of helping forward" and "it indicates some kind of aid or assistance producing an effect in the future" and 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." An act which is extraneous to the common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention. [Refer judgment of R.P. Sethi J. in Suresh Vs. State of U.P., (2001) 3 SCC 673]."

13. When we apply the aforesaid principles with reference to the term

"common intention" under Section 34 IPC to the facts as deposed and

proved on record, we have to hold that the present appellants Raj Kumar @

Raju and Sher Singh @ Shera did not share common intention with

Bhagwan Dass (since deceased), who had gone to his house, picked up the

gun, possibly loaded it, proceeded to the terrace and had fired. At that

time, the two appellants were not present or seen with Bhagwan Dass

(since deceased). Shera had earlier inflicted the wound on the head of

Amaria with the palta. None of the eye witnesses have deposed or stated

that the appellants Raju or Shera had shouted or called upon Bhagwan Dass

(since deceased) to fire or had caught hold of the deceased or the injured.

No such assertion or allegation has been made. The essence and proof that

there was simultaneous consensus of mind of Raju or Shera with Bhagwan

Dass (since deceased) is missing. Their presence at the spot would not

establish common intention. In Criminal Appeal No.484/2011, Mohd.

Saleem Vs. The State, decided on 31st May, 2013, it has been held:-

"............A co-perpetrator, who shares a common intention, will be liable only to the extent that he intents or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable. This test obviously is a case or fact specific and no strait jacket universal formula can be applied. Two examples quoted in Bashir‟s case are relevant and explain the widest and broad boundaries of Section 34. Allahabad High Court however warned that the ambit of section 34 IPC should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged."

14. In these circumstances, we do not think that the appellants Raju and

Shera shared a common intention with the act of firing by Bhagwan Dass

(since deceased). This firing from the roof/ terrace by Bhagwan Dass (since

deceased) was sudden and abrupt. The said act could not be treated as an

act in furtherance of common intention of the present appellants i.e. Raju

and Shera.

15. Therefore, the appellants Raju and Shera cannot be held liable for

the act of firing and the resultant injuries caused to Amaria and Dharma. At

the same time on the aforesaid legal ratio, expounding the scope of Section

34 IPC, it has to be held that Raju and Shera had shared common intention

when the appellant Shera had hit the palta on the head of Amaria (see

paragraphs 16 and 17 below). To this extent, both of them would be jointly

liable for the offence i.e. the act of hitting of the palta on the head of

Amaria. The said act though attributed to Shera, would implicate Raju

under section 34 IPC.

16. Sequentially, the next question which arises for consideration is

whether the appellant Raju and Shera, who had shared the common

intention, would be liable for culpable homicide amounting to murder or an

offence of a lower degree. We have no doubt that Shera had intentionally

hit the palta on the head of Amaria. It is also obvious that Raju, the

landlord had gone to the shop of Pappu Halwai with the intention to settle

scores and ask him to vacate the shop. As per the facts, proved and

established, Shera had first thrown the sweets on the ground. This had led

to retaliation, which was normal and natural and Pappu Halwai had

threatened Shera by picking up the palta. Deceased Amaria had then

intervened and tried to pacify Pappu Halwai and had taken away the palta

from Pappu Halwai‟s hands. Shera had then snatched or took away the

palta from hands of Amaria and had hit him i.e. Amaria on his head. No

doubt, Amaria was a third party, but Raju and Shera had grievance against

him for he was supporting Pappu Halwai. Noticeably, both Raju and Shera

were unarmed before the strike was made. Bhagwan Dass (since deceased)

had shouted that he would get his gun and had left the spot to go to his

house. Bhagwan Dass (since deceased) had not returned and was not

present, when the palta blow was inflicted.

17. In view of the facts narrated above, we agree and hold that Raju had

shared common intention and the act of Shera would be covered under the

expression "in furtherance of common intention". The strike on the head

by Shera using the palta was not distinctly remote and unconnected with

the common intention. It was primarily connected or a reasonably possible

outcome of the preconcert or contemporaneous engagement or a

manifestation of the mutual consent for carrying out a common purpose.

Raju would be liable for the said act committed in furtherance of common

intention, even if he had not put forward a helping hand to directly aid or

assist the strike by Shera on the head of Amaria. Raju‟s presence and his

previous conduct, reflects and indicates common intention. Four persons

had proceeded to Pappu Halwai‟s shop to ask and compel him to vacate the

same by using abusive language or even force.

18. We would now examine the post mortem report to ascertain the

cause of death i.e. whether the deceased Amaria had died because of the

strike on the head with the palta hit or due to gun shot wounds. Answer to

the said question would be a significant factor in determining the offence

perpetrated by the appellant Shera and Raju; whether it was culpable

homicide simplictor, or culpable homicide amounting to murder or attempt

to commit murder, etc. The post mortem was conducted by Dr. L.T.

Ramani (PW20) on 6th November, 1991, who had submitted his report

marked Ex.PW20/A. As per the said report and deposition of Dr. L.T.

Ramani (PW20), the following external injuries were noticed:-

"1. Incised look wound on the left side of fore- head 9 c.m. × 2 c.m. × cranial cavity deep placed obliquely.

2. Incised looking wound on the left left side fore-head 2 c.m. medial of injury no.1 size 9 c.m. × 3 c.m. × cranial cavity. There were multiple depressed fractures of the bone beneath.

3. Laceration over left temporal parietal area 8 c.m. × 2.5 c.m. × cranial cavity placed obliquely, with four small rounded punctures at the peripheral part of this wound.

There was no evidence of blackening or singing of hair around.

4. An irregular laceration 2 c.m. × 2 c.m. with inwarted scalp margins communicating with cranial cavity over left temporal parietal region.

Scalp margins were inverted and there was no blackening around the wound.

On internal examination, Dr. L.T. Ramani (PW20) has opined:-

"On internal examination multiple fractures of left parietal bone, frontal bone of the left side and left temporal bone one hole of 1.5 × 0.5 c.m. was seen on the middle of parietal bone on the rt. side. Another

round hold of 0.4 ×0.4 c.m. was seen lateral to the previous hole. Another large wound 2.5 c.m. diameter was seen on the left parietal bone beneath external injury no.4. The brain was lacerated and showed generalised subdural haemorrhage. Seven pellets were recovered from the brain matter. Neck tissues were normal, Hyoid bone was intact. Trachea was normal, Ribs were intact, lung and heart were normal, stomach contained 3 to 4 ounces of digested food. Other abdominal organs were normal."

The aforesaid injuries were ante mortem in nature and in the report

Ex.PW20/A, Dr. L.T. Ramani (PW20) has stated that injury Nos.1 and 2

were possibly caused by some heavy cutting weapon and injury Nos.3 and

4 were caused by a fire arm i.e. gunshot injuries from a distant range.

However, Dr. L.T. Ramani in the post mortem report (Ex.PW20/A) and his

oral deposition, has not specifically indicated whether injury Nos.1 and 2

by themselves were sufficient to cause death in the ordinary course of

nature. The post mortem report is rather ambiguous on this aspect and

records:-

"Injuries were antemortem, Injuries no.1 & 2 were caused by some heavy cutting weapon and injuries no.3 and 4 were caused by fire arm. (gun shot injuries fired from distance range). Injuries to the skull were sufficient in the ordinary course of nature to cause death. Death was due to cranio-cerebral injury. Time since death was about 18 hours. Clothes, scalp hair and sample of blood and pellets were preserved, sealed and handed over to the police along with sample of seal"

19. The cause of death, as per PW20‟s, was cranio-cerebral injury but it

is not indicated whether cranio-cerebral injury was result of injury Nos.3

and 4 or a result of injury Nos.1 and 2 or a combined result of the aforesaid

injuries. Learned Additional Public Prosecutor had drawn our attention to

Ex.PW28/C1, which is an opinion given Dr. L.T. Ramani (PW20)

regarding the weapon of offence and is dated 12th December, 1991. PW20

has not deposed or testified regarding this opinion. The said opinion

(Ex.PW28/C1) records that a palta (khocha) was shown to the said doctor,

who had recorded that the same had a flat and wide blade with milk

deposits and blood stains on both sides. The total length of palta was 90.5

cm including the blade. It records that injury Nos.1 and 2 were possible by

the palta shown to PW20 by the police. The aforesaid report would not

help and assist us finding an answer to the question. In fact the confusion

and ambiguity gets confounded and muzzled. When such doubt or debate

exists, and cannot be resolved with a substantial degree of certainty, the

benefit would go to the accused i.e. the appellants herein.

20. In view of the aforesaid medical opinion and ocular evidence on

record, we do not think that the offence committed by Shera and by Raju

with application under section 34 IPC would fall under Section 300 IPC or

Part 1 of Section 304 IPC, but would certainly constitute an offence under

section 307 IPC. We say so because we cannot state and hold it is proved

with certainty that injury Nos 1 and 2 would have resulted in death, but an

assault with force was made.

21. In view of the aforesaid discussion, we are of the opinion that the

appellants are entitled to acquittal under Section 307 read with Section 34

IPC for the charge of having attempted murder of Dharma. Appellant

Shera would be liable for the offence under Section 307 IPC for having

caused injuries to deceased Amaria. Appellant Raju would be also liable

under section 307 read with section 34 IPC for the injuries caused to

Amaria.

22. The last issue relates to quantum of punishment or sentence. It is

pointed out that the appellant Shera has suffered incarceration of about six

years and eight months before he was released on suspension of sentence in

this appeal vide order dated 18th July, 2006. He had earned remission of

one year and five months. The offence in question, as noted, was

committed in the year 1991. We feel that the punishment undergone would

be sufficient. However, the appellant Shera as directed by the impugned

order of sentence will pay fine of Rs.25,000/- within a period of six weeks

from today. In case of default and on failure to pay the said fine, he will

undergo simple imprisonment for a period of six months. The fine once

realised, will be paid as compensation to the legal heirs of Amar Singh @

Amaria. Appellant Raju, has already suffered incarceration of about four

years and six months. For rhe reasons indicated above, Raju is sentenced

under Section 307 IPC to the period already undergone. He shall also pay

fine of Rs.25,000/- within a period of six weeks from today and in default,

undergo simple imprisonment for a period of six months. The fine, if paid,

will be released to the legal heirs of Amar Singh @ Amaria as

compensation.

23. The appeals are accordingly disposed of.

(SANJIV KHANNA) JUDGE

(R.K. GAUBA) JUDGE SEPTEMBER 11, 2015 NA/VKR