Delhi High Court
Diwan Singh & Ors. vs State Of Delhi on 25 August, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 25th August, 2017
+ CRL.A. 779/2000
DIWAN SINGH & ORS. ..... Appellants
Through: Mr. K. B. Andley, Sr. Advocate with
M.L. Yadav, Mr. Anurag Andley
and Mr. Kshitij Arora, Advocates.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Radhika Kolluru, APP for the
State
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. This is an appeal under Section 374(2) of the Code of Criminal
Procedure (hereinafter referred to as 'Cr.P.C.') against the judgment
dated 20.11.2000 by which the appellants have been held guilty for
the offence under Sections 302/307/323/34 of the Indian Penal Code
(hereinafter referred to as 'IPC'). Challenge is also made to the order
on sentence dated 21.11.2000 by which the appellants have been
sentenced to imprisonment for life and a fine of Rs. 2,000/- each for
the offence under Section 302 read with Section 34 of IPC, in default
of payment of fine, simple imprisonment for a period of one year
each. The appellants have been further sentenced to rigorous
imprisonment for a period of 5 years and a fine of Rs.500/- each for
the offence under Section 307 read with Section 34 of IPC, in default
of payment of fine, simple imprisonment for a period of one month
each. As per the order on sentence, all the appellants have been further
sentenced to rigorous imprisonment for a period of six months each
for the offence under Section 323 read with Section 34 of IPC. All the
sentences were ordered to run concurrently.
2. At the outset, we may note that the appellant No.1 Diwan Singh, co-
accused in the present case, has expired during the pendency of the
appeal and the same has been verified by the learned counsel for the
State as reflected in the order dated 24.08.2017 passed by this Court.
3. The brief facts of the case are that 5-7 days prior to the incident, there
was a quarrel between the appellants and the complainant regarding
over-flow of drain water and the consequential collection of water in
the house of the deceased Hukum Chand. As per the version of Inder
Pal (PW1), on 27.10.1997 at about 10.00 or 10.15 PM, PW1
alongwith his father Hukum Chand were coming from their gher and
going towards their home. On reaching near the house of the
appellants, PW1 was caught hold of by the appellant Om Parkash and
the appellant Dharmender attacked him with a pharsa which he tried
to ward off as a result of which PW1 sustained injuries on his right
hand as well as on the left arm. The father of PW1 also tried to help
him in setting free from the appellants. Thereafter, the appellants Om
Parkash and Diwan Singh caught hold of the father of PW1. The
appellant Mange Ram instigated the appellant Dharmender to kill
father of PW1 as a result of which the appellant Dharmender gave a
pharsa blow on the head of his father. As a result of pharsa blow, his
father fell down. Thereafter, the appellants Om Parkash and Mange
Ram started giving lathis to his father. The mother of PW1 intervened
and fell on the deceased to save him and received lathi blows as well.
The incident was also witnessed by Jai Bhagwan (PW4). PW1
alongwith his mother (PW3), Rajpal (PW2) and Jai Bhagwan cried
and tried to save his father. Thereafter, all the four appellants fled
away from the spot alongwith pharsa and lathis. PW1 along with
Rajpal (PW2) took his father to Santom Hospital, Pitampura, Rohini.
The criminal machinery was set into motion vide DD No. 17A which
was recorded on 27.10.1997 at 11.10 PM, at Police Station Ali Pur
regarding quarrel at the house of the appellant Mange Ram. The said
DD was proved by PW13 as Ex.PW13/A. The copy was given to ASI
Dharam Pal who went to the spot along with Const. Suresh. It was
claimed by the defence that the first information was passed by DW1
which led to the registration of DD No. 17A.
4. It is the case of the prosecution that all the appellants in furtherance of
their common intention attacked Inder Pal (PW1) and the deceased
Hukum Chand and inflicted injuries on them with pharsa and lathis.
As a result of beatings, Hukum Chand lost his life and Inder Pal and
Om Wati sustained injuries during the scuffle. Charge under Section
302 read with Section 34, Section 307 read with Section 34 and
Section 323 read with Section 34 of IPC was framed against all the
appellants to which they pleaded not guilty and claimed to be tried.
5. To bring home the guilt of the appellants, the prosecution examined
24 witnesses in all. The statement of the appellants were recorded
under Section 313 of Cr.P.C. whereby they made similar statement
and stated that on 27.10.1997 at about 10.00 PM, the complainants
including Krishan who was armed with pharsa, however, Inder Pal,
Rajpal, Jag Pal, Tej Pal, Hukum Chand (the deceased) and Umed
Singh were armed with lathis. Om Wati (PW3) forcibly entered their
house and instigated all the aforesaid persons to teach them a lesson
and also instigated to kill them. At the instigation of Om Wati, all the
above mentioned persons started giving them lathis blows. The
appellants Mange Ram and Om Parkash sustained multiple injuries.
Blood started oozing out from their heads and clothes of both the
appellants got smeared with blood. Krishan wanted to give a pharsa
blow on Dharmender. In the meantime, the deceased came in between
and due to darkness, it fell on the head of the deceased. Meenakshi
alias Rani (DW1) rushed to the house of her neighbour and gave a call
to PCR. After the complainants came to know that Meenakshi had
informed the police, the assailants along with the deceased ran away
from their house and while leaving they threatened them that they
would kill them. The Police reached their home and the place of
incident was photographed. The appellants also stated that in the
scuffle, they had received injuries which was evident from their MLCs
and were proved as Ex. PW10/D, Ex. PW10/A, Ex. PW9/B, Ex.
PW9/C. All the appellants pleaded innocence and claimed to be
falsely implicated in the instant case. One witness was examined by
the appellants in their defence.
6. Learned counsels appearing on behalf of the appellants have jointly
submitted that the judgment of the Trial Court is based on surmises
and conjectures and not based on cogent, clear or impeachable
evidence. Counsels contend that the Trial Court had erred in not
taking into consideration that the prosecution has not been able to
prove its case beyond reasonable doubt. The order is contrary to the
law and has resulted in gross miscarriage of justice.
7. Learned counsels have highlighted the fact that the deceased
alongwith the complainant had approached the house of the appellants
and a scuffle took place between them, which is apparent from the fact
that blood was found inside and outside the house of the appellant
Mange Ram and is corroborated from the testimony of PW23 ASI
Dharma Pal. Attention of this Court has been drawn to the fact that the
first call to the PCR was made by none else, but by the wife of the
appellant Dharmender, which would show that initially a quarrel had
taken place between the parties that turned ugly and resulted in the
death of Hukam Chand and during the quarrel, PW1 also sustained
injuries. While relying on the MLCs of the appellants, learned
counsels submit that the injuries were sustained by the appellants as
well, which would show that it was free for all situation.
8. Counsels for the appellants submit that the injured eye witnesses had
ascribed the specific role of catching hold of the deceased against the
appellants Om Prakash and Diwan Singh. It was highlighted by the
counsels that the role ascribed to the appellant Mange Ram was that
he instigated appellant Dharmender to kill the deceased and as a result
of his instigation, the appellant Dharmender gave pharsa blow to the
head of the deceased however, as per the testimony of PW1, the initial
attack was made on him and later when his father intervened, he was
attacked by all the appellants. Thus, there is no clarity as to whether
the appellant Mange Ram had exhorted to kill the deceased or not. In
this backdrop, the evidence of PW1 and PW3 is not truthful and
reliable.
9. Additionally, learned counsels submit that they have instructions not
to press the appeal on merits as far as the judgment of conviction is
concerned, except that no case under Section 302 of IPC is made out
as no lethal weapon was used. Pharsa is an agricultural instrument
found in the house of every farmer. The appellants did not act in any
unusual and cruel manner and there was no pre-meditation. Moreover,
there was no meeting of minds between the appellants Dharmender,
Mange Ram, Diwan Singh and Om Prakash. Learned counsels for the
appellants submit that the appellants and the complainant were
residing in the same village and their houses were adjacent to each
other. They further submit that, even as per the case of the
prosecution, the bone of contention was over-flowing of water
drainage pipe and the consequential collection of water near the house
of the deceased. Lastly, learned counsels for the appellants submit that
since the appellant No.1 had expired and the appellant No.2, Mange
Ram is about 90 years of age. He further submits that all the
appellants are residing peacefully in the same house in the same
neighbourhood and there is no untoward incident since 1997. Learned
counsels submit that both the appellants Mange Ram and Om Prakash
have served a sentence of more than five years each, while the
appellant Dharmender has served a sentence of more than six years,
including remission earned by him.
10. Reliance has been placed on the decision rendered by a co-ordinate
Bench of this Court, of which one of us (G.S. Sistani, J.) was a
member in the case of Ajay Bind v. State NCT of Delhi reported at
2017 SCC Online Del 9033, wherein the circumstances of the case
were almost identical. The injury was given on the head of the
deceased and was caused by a blunt object. After considering all the
facts and circumstances, this Court modified the conviction from
Section 302 to one under Section 304 Part II of IPC. All the appellants
were sentenced to imprisonment for a period of five years.
11. Per contra, Ms. Radhika Kolluru, learned counsel for the State
submits that there is no infirmity in the judgment passed by the Trial
Court. The Trial Court has carefully analysed the testimonies of
various witnesses and reached the conclusion of the guilt. Ms.
Kolluru submits that the testimonies of the injured witnesses are
consistent in the manner how the deceased had sustained fatal blow
from the pharsa and lathis which were given by the appellants in
furtherance of their common intention to kill the deceased.
12. Ms. Kolluru further submits that a careful reading of the evidence on
record of PWs 1 and 3 would establish the presence of the appellants
at the place of the incident and sudden attack which was made by the
appellants. She also submits that it is not in dispute that PWs 1 and 3
are not eye witnesses to the incident. Ms. Kolluru further submits that
the case of the prosecution stands fully established not only on the
basis of the evidence of the injured witnesses but also stands
established on the basis of the medical evidence.
13. We have heard learned counsels for the parties and considered their
rival submissions and also given our thoughtful consideration to the
matter. Before the submissions of learned counsels for the parties are
considered, we deem it appropriate to discuss the testimonies of the
injured witnesses who were examined as PW1 Inder Pal and PW3 Om
Wati being the son and wife of the deceased respectively.
14. PW1 Inder Pal (son of the deceased) testified in his examination-in-
chief that he knew all the appellants who were present in Court, as
they were residing in his neighbourhood in the same village. 5/7 days
prior to the incident, a dispute had taken place between him and the
appellants over the flow of water of the drain. The appellants Om
Parkash and Dharmender had put a brick in the drain as a result of
which water started accumulating in front of their house. When PW1
asked the appellants to remove the brick, the appellants started
fighting with them. On 27.10.1997 at about 10.00 or 10.15 PM, PW1
and his father Hukam Chand were coming from their gher and going
towards their home. Jai Bhagwan (PW4) also accompanied them.
When PW1 reached in front of the house of the appellants, he was
caught hold of by the appellant Om Parkash and the appellant
Dharmender attacked him with a pharsa which he tried to ward off
with his right hand as a result of which PW1 sustained injury on his
right hand near thumb and the index finger. The second blow fell on
the left arm of PW1 near his shoulder. Somehow, PW1 managed to
escape the blows. The father of PW1 also tried to help him in setting
him free from the appellants, as his father was behind him. The
appellants Om Parkash and Diwan Singh caught hold of his father.
The appellant Mange Ram instigated the appellant Dharmender to kill
his father. On instigation, the appellant Dharmender hit pharsa on the
head of his father. As a result of the blow, his father fell down. When
his father had fallen, the appellants Om Parkash and Mange Ram
started hitting him with lathis. The mother of PW1 fell upon his father
to save him as a result of which she also received lathi blows. PW1
alongwith his mother, Rajpal (PW2) and Jai Bhagwan (PW4) cried
and tried to save his father. The ladies who belonged to the house of
the appellants started throwing bricks on them which resulted in
injuries to the appellants. Thereafter, all the four appellants fled away
from the spot alongwith pharsa and lathis. PW1 along with Rajpal
(PW2) took his father to Santom Hospital, Pitampura, Rohini. After
sometime, his father died in the hospital. Police reached hospital and
recorded his statement which was proved as Ex.PW1/A. PW1
accompanied police to the spot. The photographs of the spot were
taken and the site plan was prepared at his instance which was proved
by him as Ex.PW1/B. Blood was lifted from the spot. All the
appellants were arrested and interrogated. The disclosure statements
were made by the appellants. The appellant Dharmender got
recovered pharsa under the cot at the gher. The appellant Om
Parkash got recovered two lathis which were lying under the cot at the
house of Om Parkash. The said pharsa (Ex.P.1) and lathis (Ex.P.2
and P.3) were identified by PW1 in Trial Court which were used in the
incident and were got recovered at the instance of the appellants.
15. In his cross-examination, PW1 stated that he had mentioned in his
statement to the police that at about 10.00/10.15 PM, he was coming
from his gher and was going towards his house alongwith his father.
PW1 further stated that Jai Bhagwan (PW4) was also with them. It
was stated by PW1 that his father was behind him and tried to help
him in setting him free from the appellants. PW1 alongwith his mother
(PW3), Rajpal (PW2) and Jai Bhagwan (PW4) tried to save his father.
The father of PW1 fell down and was bleeding. The appellants Om
Parkash and Mange started giving lathi blows to his father. It was
further stated by PW1 that the appellants fled away with lathis and
pharsa from the spot. PW1 was confronted with his statement
(Ex.PW1/A) wherein all the afore-mentioned facts were not so
recorded. PW1 denied the suggestion that the appellants Om Parkash
and Mange Ram did not hit his father with lathis and when his mother
tried to save his father, only then they gave lathi blows. PW3 further
denied that no stones were thrown by the ladies of the house of the
appellants. PW1 also stated that he did not tell to the police that he
was alone when at about 10.00 PM, he was coming towards his home
from gher and the appellant Om Parkash had caught hold of him from
behind and the appellant Dharmender gave him a pharsa blow. The
said fact was confronted with his statement (Ex.PW1/A) wherein it
was so recorded. PW1 denied the suggestion that Rajpal (PW2) and
his father were not with him at the time of the attack.
16. PW3 Om Wati (wife of the deceased) testified in her examination-in-
chief that she knew all the appellants and identified them in Court, as
they were residing in her neighbourhood. About 6/7 days prior to the
date of incident i.e. 27.10.1997, a quarrel had erupted with the
appellants over the water of the drain which was flowing towards the
house of the appellants. The appellants Dharmender and Om Parkash
kept bricks inside the drain to stop the flow of the water as a result of
which the water started accumulating outside their house. When PW3
asked the appellants not to do the same, the appellants Om Parkash
and Dharmender started fighting with them. The appellants were
fighting continuously with them. A false allegation was made
regarding her son Inder Pal that he was peeping through the window
into the bed room of the appellant Dharmender and his wife.
Thereafter, the appellants warned Inderpal that they would take
revenge for the misdeed. On 27.10.1997 at about 10.00 PM, PW3 was
present inside her house and heard screams from outside her house
and came out. PW3 saw the appellants Om Prakash and Diwan Singh
holding her husband. Rajpal (PW2) and Jai Bhagwan (PW4) were
raising noise and asked the appellants not to fight. The appellant
Dharmender was having a pharsa in his hand, while the appellants
Om Prakash and Mange were having lathis in their hands. The
appellant Mange Ram exhorted that the deceased should be finished
on that day. Thereafter, the appellant Dharmender gave a pharsa blow
on the head of her husband as a result of which he fell down on the
ground. In order to save her husband, she fell upon him. The
appellants Mange Ram and Om Parkash started giving lathi blows on
her. The ladies of the house of the appellants started throwing bricks
and stones from the roof of their house which hit the appellants.
Thereafter, the appellants were under this impression that her husband
had died, all the appellants fled away from the spot. Inder Pal (PW1)
and Raj Pal (PW2) took her husband to the hospital in a tempo. In the
meantime, PCR van reached the spot and took PW3 to Hindu Rao
Hospital. After the return of PW3 from the hospital, she came to know
that her husband had died and her son Inder Pal was lying in the
hospital in an injured condition. In addition to the injury sustained by
her husband, her son Inder Pal also received injuries at the hands of
the appellants.
17. In her cross-examination, PW3 stated that the police reached the spot
after her husband was taken to the hospital i.e. about 10/15 or 20
minutes and at that time she was inside her house. PW3 stated that she
received injury on her finger and could not say if Kishan Pal, Tejpal,
Jagpal and Amar Singh were present in the village or not. However,
Jai Bhagwan (PW4) was present in his house. Jai Bhagwan (PW4)
and Rajpal (PW2) were present at the time of the incident. However,
Krishan, Jagpal, Amar Singh and Tejpal were not present at the time
of the incident. The police did not make any enquiry from PW3, but
on seeing her injury, she was taken to the hospital. The next morning
when she came back from the hospital, the police made enquiries from
her. It was stated by PW3 that the police might have recorded her
statement after the enquiries. It was further stated by PW3 that she
had told the police that Rajpal (PW2) and Jai Bhagwan (PW4) were
raising noise. On confrontation, this fact was not mentioned in his
statement (Ex.PW3/DA). PW3 further stated that she told Police that
she also raised noise and asked the appellants not to fight however; it
was not mentioned in his statement (Ex.PW3/DA). The ladies from
the house of the appellants had thrown stones which hit the appellants.
On confrontation with her statement (Ex.PW3/DA) it was not so
recorded. It was also stated by PW3 to the Police that she did not state
to the police that the stones thrown by the ladies of the family of the
appellants had hit all the persons present at the time of incident. On
confrontation with her statement Ex.PW3/DA, the said fact was
narrated to the Police. PW3 admitted that many persons were living
around her house. On hearing the noise and cries of PW3, Jai
Bhagwan (PW4), Rajpal (PW2) and her husband, the neighbours of
the adjoining locality did not come at the spot. The fight continued
only for 2/3 minutes after she heard the noise and came out. On
hearing the noise, PW3 immediately came out and tried to save her
husband. During the process of saving her husband, her clothes were
not torn. PW3 failed to state the number of lathi blows which were
received by her when she tried to save her husband by falling on him,
but she received a number of lathi blows. The lathi blows were
received by PW3 on her back, but she did not receive any lathi injury
on her head and no blood had come out from the injuries received by
her. PW3 failed to give the time when she was taken to the hospital.
The doctor made enquiry from her as to how she received lathi blows
and as to who had caused them. PW3 told the names of the appellants
Mange and Om Prakash to the doctor. The police did not meet PW3
in the hospital and she came back from the hospital all alone by
tempo. PW3 did not go to the police station, but she went directly to
her house. After returning from the hospital, PW3 did not call the
police, nor did she send any person to the police station. PW3 denied
the suggestion that she did not inform the police, because the pharsa
was held by Krishan who wanted to attack with pharsa on the
appellant Dharmender but had escaped and the same hit her husband.
The PCR came and took PW3 to the hospital and she had also seen the
blood lying in the street.
18. Another eye witness to the incident is PW2 Rajpal who testified in his
examination-in-chief that the deceased Hukam Chand was his uncle.
All the appellants were his neighbours. 5/6 days prior to the incident,
there was a dispute between the appellants and the deceased over flow
of water of house of the deceased which was passing through the drain
in front of the house of the appellants. The appellants had put some
bricks in the drain and obstructed the flow of water. PW2 further
deposed that on 27.10.1997 at about 10/10.15 PM, on hearing the
shrieks of Inder Pal (PW1), he came out of the house and saw that
Inder Pal had been caught hold by the appellant Om Parkash. The
appellant Dharmender attacked Inder Pal twice with the pharsa due to
which he sustained injuries on his right hand and left shoulder. Inder
Pal was set free and he had tried to ward off the blows. Thereafter,
the appellant Diwan Singh and Om Parkash caught hold of the
deceased. The appellant Mange Ram instigated the appellant
Dharmender and exhorted him that the deceased should be finished on
that day. On this, the appellant Dharmender gave a pharsa blow on
the head of the deceased as a result of which the deceased fell down
on the ground. PW2 and Jai Bhagwan (PW4) tried to save the
deceased. In the meantime, wife of the deceased tried to save the
deceased and had fallen on him to save him who was already present
at the spot, but the appellants Mange Ram and Om Parkash also gave
lathi blows to her. The ladies from the house of the appellants had
thrown bricks as a result of which the appellants sustained injuries.
All the four appellants fled away from the spot alongwith the
weapons. PW2 alongwith PW1 Inder Pal took the deceased to Santom
Hospital, Rohini, Delhi where after sometime he died in the hospital.
PW2 identified in Court the Pharsa and lathis which were used in
assaulting the deceased by the appellants.
19. In his cross-examination, PW2 admitted that he was not present at the
spot on the day when there was a dispute over the drain. The incident
of drain had taken place at about 12 noon 5/6 days prior to the present
incident. The said quarrel erupted between the deceased and his wife
and on the other side, the appellants Om Parkash, Dharmender, Mange
and Diwan Singh. PW2 further stated that he did not lodge any report
to the police about the incident. It was also stated by PW2 that the
police recorded his statement about the present incident on 28.10.1997
at about 5.00 or 5.15 AM in the hospital whereby he stated that at
about 10.00 or 10.15 PM on 27.10.1997, on hearing the screams of
Inder Pal, PW2 came out of his house. The said statement was
confronted with his statement to the Police (Ex.PW2/DA) wherein it
was not so recorded, but the name of the deceased was recorded.
PW2 denied the suggestion that he came out of his house on hearing
the screams of the deceased and not of Inder Pal. PW2 further stated
that he told the police that Inder Pal had been caught hold of by the
appellant Om Parkash and the appellant Dharmender attacked him
twice with a pharsa on Inder Pal. On confrontation with his statement
(Ex.PW2/DA), it was not so recorded. PW2 also stated to the police
that Inder Pal sustained pharsa blows on his right hand and left
shoulder, as he tried to ward off the blows. On confrontation with his
statement (Ex.PW2/DA), it was not so recorded.
20. The next eye witness PW4 Jai Bhagwan testified in his examination-
in-chief that he knew all the appellants and the complainants as they
were residing in his neighbourhood. About 5/7 days prior to
27.10.1997, a dispute arose between both the parties over the flow of
water in the drain. On 27.10.1997 at about 10.00 or 10.30 PM, when
PW4 was going towards his house from his gher, he saw Inder Pal
(PW1) and the deceased were going towards their house and were
ahead to him. When Inder Pal crossed the house of the appellant Om
Parkash, Inder Pal was being caught hold by the appellant Om
Parkash. The appellant Dharmender who was also standing nearby,
was having a pharsa in his hand and tried to inflict pharsa blows on
Inder Pal and inflicted injury on his left and right side. Inder Pal tried
to save himself, but was hit on his right hand near the thumb and
index finger and also on the left hand near his left shoulder when he
tried to ward off the blows. Since the deceased was also with Inder
Pal, the appellant Om Parkash caught hold the deceased alongwith the
appellant Diwan Singh. Thereafter, the appellant Mange Ram
exhorted that the deceased should be killed. Thereafter, the appellant
Dharmender gave a pharsa blow on the backside of the head of the
deceased as a result of which the deceased fell down on the ground. In
the meantime, Om Wati (PW3/wife of the deceased) intervened and
tried to save the deceased and fell on him. The appellants Om Parkash
and Mange Ram started giving lathi blows to Om Wati. PW4
alongwith Rajpal (PW2) and Om Wati tried to stop the appellants
from fighting, but the appellants did not stop. Thereafter, all the four
appellants fled away from the spot. The ladies from the house of the
appellants started throwing stones and bricks from the roofs which hit
the appellants. The deceased was taken to the Hospital by Inder Pal
and Rajpal in a tempo. Thereafter, the PCR van reached the spot and
removed Om Wati alongwith the appellants Om Parkash and Diwan
Singh to Hindu Rao Hospital. PW4 identified the pharsa and the
lathis in the Court as the weapon of offence.
Medical Evidence:
21. PW6 Dr. Navin Mukhi testified in his examination-in-chief that on
27.10.1997 at about 11.30 PM, he alongwith Dr. A. Jain examined the
deceased Hukam Chand, who was brought to the hospital in an injured
condition. The deceased was found in badly injured condition and
was gasping and was also bleeding profusely from the head. On the
same night, at 12.20 AM, PW6 informed Police Station Alipur with
regard to the admission of the deceased in the hospital and thereafter
Police reached the hospital.
22. PW7 Dr. Ashok Jaiswal testified that on 28.10.1997, he conducted the
post-mortem examination of the body of the deceased Hukum Chand.
His detailed report was proved by him as Ex.PW7/A. The following
external injury was found on the body of the deceased:
"Curved incised wound 6 inch x 1-1/2 inch x brain matter
deep extending from left occipito parietal region across vault
to right parietal region, broader on right side, bony pieces
driven in with bruise margins."
23. On internal examination, PW7 found blood under scalp tissue i.e.
under external injury No. 1 with comminuted fracture involving
occipital and parietal bone with bone pieces being driven in with short
cut in meninges and sub dural haemorrhage all over the scalp tissue.
PW7 opined the cause of death as cranio cerebral injuries. It was also
opined by PW7 that injury No. 1 was ante-mortem in nature which
had been caused by some heavy sharp edged weapon and was
sufficient to cause death in the ordinary course of nature. Time since
death was opined as about 14 and half hour. As to the weapon of
offence, PW7 opined that injury No.1 was possible by pharsa (Ex.P1).
24. PW1 Inder Pal was examined by PW8 Dr Arinjay jain on 27.10.1997
at 11.30 PM, with the alleged history of having been attacked by
neighbours and was beaten with sticks and pharsas. PW8 found the
following injuries on him:
"1. Incised wound 1.5 cm x 5 cm subcutaneous deep on base
of right thumb on dorsal aspect which was bleeding.
2. Skin cut 5 cms on knuckle of right index finger on dorsal
aspect.
3. He was complaining of pain right wrist joint. Local
tenderness was positive. No bony injury clinically.
4. Linear abrasion 5 inch long on left arm lateral aspect
reddish.
5. Abrasion 2 cm long on left wrist lateral side.
6. Small abrasion on dorsal side first knuckle middle of middle
finger."
25. PW8 opined the nature of injuries sustained by PW1 as simple and
proved his MLC as Ex. PW8/A. Besides this, it is evident from the
records that the appellants had also sustained injury which has been
proved from their MLC's. In this background, we find force in the
argument raised by the counsels for the appellants that the fight was
free for all and both the parties i.e. the appellants as well as the
complainant sustained injuries on their body.
26. The question which arises for consideration is as to whether the
present case is one of deliberate or intentional killing resulting in the
injuries, which would be a case of murder under Section 302 of IPC.
Further, if it is a case of unintentional and not a premeditated act and
had arisen out of a sudden quarrel, on the spur of the moment whether
it falls under one of the special exceptions carved out under Section
300 of IPC?
27. At this stage, we deem it appropriate to revisit the law relating to
conviction of the accused persons under Section 302 with the aid of
Section 34 of IPC.
28. In the case of Suresh and Another vs. State of U.P. reported at (2001)
3 SCC 673, the Hon'ble Supreme Court discussed the scope of
Section 34 of IPC and its applicability in paras 37- 41, which read as
under:
"37. However, in view of the importance of the matter, in so
far as the interpretation of Section 34 of the Indian Penal
Code is concerned, we have chosen to express our views in the
light of consistent legal approach on the subject throughout
the period of judicial pronouncements. For the applicability of
Section 34 to a co-accused, who is proved to have common
intention, it is not the requirement of law that he should have
actually done something to incur the criminal liability with the
aid of this section. It is now well settled that no overt act is
necessary to attract the applicability of Section 34 for a co-
accused who is otherwise proved to be sharing common
intention with the ultimate act done by any one of the accused
sharing such intention.
38. Section 34 of the Indian Penal Code recognises the
principle of vicarious liability in the criminal jurisprudence. It
makes a person liable for action of an offence not committed
by him but by another person with whom he shared the
common intention. It is a rule of evidence and does not create
a substantive offence. The Section gives statutory recognition
to the commonsense principle that if more than two persons
intentionally do a thing jointly, it is just the same as if each of
them had done it individually. There is no gainsaying that a
common intention pre-supposes prior concert, which requires
a pre-arranged plan of the accused participating in an offence.
Such a pre-concert or pre-planning may develop on the spot or
during the course of commission of the offence but the crucial
test is that such plan must precede the act constituting an
offence. Common intention can be formed previously or in the
course of occurrence and on a spur of moment. The existence
of a common intention is a question of fact in each case to be
proved mainly as a matter of inference from the circumstances
of the case.
39. The dominant feature for attracting Section 34 of the
Indian Penal Code (hereinafter referred to as "the Code") is
the element of participation in absence resulting in the
ultimate "criminal act". The "act" referred to in latter part of
Section 34 means the ultimate criminal act with which the
accused is charged of sharing the common intention. The
accused is, therefore, made responsible for the ultimate
criminal act done by several persons in furtherance of the
common intention of all. The Section does not envisage the
separate act by all the accused persons for becoming
responsible for the ultimate criminal act. If such an
interpretation is accepted, the purpose of Section 34 shall be
rendered infructuous.
40. Participation in the crime in furtherance of the common
intention cannot conceive of some independent criminal act by
all accused persons, besides the ultimate criminal act because
for that individual act law takes care of making such accused
responsible under the other provisions of the Code. The word
"act" used in Section 34 denotes a series of acts as a single
act. What is required under law is that the accused persons
sharing the common intention must be physically present at the
scene of occurrence and be shown to not have dissuaded
themselves from the intended criminal act for which they
shared the common intention. Culpability under Section 34
cannot be excluded by mere distance from the scene of
occurrence. The presumption of constructive intention,
however, has to be arrived at only when the court can, with
judicial servitude, hold that the accused must have pre-
conceived result that ensued in furtherance of the common
intention. A Division Bench of the Patna High Court in
Shatrughan Patar & Ors. v. Emperor: AIR 1914 Cal 901 (2)
held that it is only when a court with some certainty hold that
a particular accused must have pre-conceived or pre-
meditated the result which ensued or acted in concert with
others in order to bring about that result, that Section 34 may
be applied.
41. In Barendra Kumar Ghosh vs. King Emperor: AIR 1914
Cal 901(2) the Judicial Committee dealt with the scope of
Section 34 dealing with the acts done in furtherance of the
common intention, making all equally liable for the results of
all the acts of others. It was observed:
".... [T]he words of S. 34 are not to be eviscerated by reading
them in this exceedingly limited sense. By S. 33 a criminal act
in S. 34 includes a series of acts and, further, "act" includes
omissions to act, for example, an omission to interfere in order
to prevent a murder being done before one's very eyes. By S.
37, when any offence is committed by means of several acts
whoever intentionally co-operates 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 S. 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. S. 34 deals
with the doing of separate acts, similar of 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. S. 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 co-operate 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.
S. 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)
29. In the case of State of M.P. v. Deshraj, reported at (2004) 13 SCC
199, the Apex Court held that the distinctive feature of Section 34 is
the element of participation in action. The liability of one person for
an offence committed by another in the course of criminal act
perpetrated by several persons arises under Section 34 if such criminal
act is done in furtherance of a common intention of the persons who
join in committing the crime. It is not necessary that the acts of the
several persons charged with commission of an offence jointly must
be the same or identically similar. The acts may be different in
character, but must have been actuated by one and the same common
intention in order to attract the provision. The relevant para 5 reads as
under:
"5. Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The section is only a
rule of evidence and does not create a substantive offence. The
distinctive feature of the Section is the element of participation
in action. The liability of one person for an offence committed
by another in the course of criminal act perpetrated by several
persons arises under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who join in
committing the crime. Direct proof of common intention is
seldom available and, therefore, such intention can only be
inferred from the circumstances appearing from the proved
facts of the case and the proved circumstances. In order to
bring home the charge of common intention, the prosecution
has to establish by evidence, whether direct or circumstantial,
that there was a plan or meeting of minds of all the accused
persons to commit the offence for which they are charged with
the aid of Section 34, be it prearranged or on the spur of the
moment; but it must necessarily be before the commission of
the crime. The true content of the section is that if two or more
persons intentionally do an act jointly, the position in law is
just the same as if each of them has done it individually by
himself. As observed in Ashok Kumar v. State of Punjab (1977)
1 SCC 746, the existence of a common intention amongst the
participants in a crime is the essential element for application
of this section. It is not necessary that the acts of the several
persons charged with commission of an offence jointly must be
the same or identically similar. The acts may be different in
character, but must have been actuated by one and the same
common intention in order to attract the provision."
(Emphasis Supplied)
30. In a recent case of Sudip Kumar Sen v. State of W.B., reported at
(2016) 3 SCC 26, it was held as under:
"14. Section 34 IPC embodies the principle of joint liability in
the doing of a criminal act and essence of that liability is the
existence of common intention. Common intention implies
acting in concert and existence of a pre-arranged plan which
is to be proved/inferred either from the conduct of the accused
persons or from attendant circumstances. To invoke Section 34
IPC, it must be established that the criminal act was done by
more than one person in furtherance of common intention of
all. It must, therefore, be proved that:
(i) there was common intention on the part of several persons
to commit a particular crime, and
(ii) the crime was actually committed by them in furtherance of
that common intention.
Common intention implies pre-arranged plan. Under Section
34 IPC, a pre-concert in the sense of a distinct previous plan is
not necessary to be proved. The essence of liability under
Section 34 IPC is conscious mind of persons participating in
the criminal action to bring about a particular result. The
question whether there was any common intention or not
depends upon inference to be drawn from the proved facts and
circumstances of each case. The totality of the circumstances
must be taken into consideration in arriving at the conclusion
whether the accused had a common intention to commit an
offence with which they could be convicted."
(Emphasis Supplied)
31. In view of the above, the existence of a common intention amongst
the participants in a crime is the essential element for application of
Section 34. Direct proof of common intention is seldom available and,
therefore, such intention can only be inferred from the circumstances
appearing from the proved facts of the case. In the present case, the
prosecution has established by direct evidence that there was a plan or
meeting of minds of all the appellants to commit the offence for which
they are charged with the aid of Section 34, and it has been proved
that the common intention was developed before the commission of
the offence.
32. As noticed in the paragraphs aforegoing, learned counsels for the
appellants have not contested the order on conviction except that no
case under Section 302 of IPC is made out. The counsels reiterate that
reading of the post-mortem report would show that the appellants did
not act in a cruel or in unusual manner. There was no pre-meditation
and thus a case, at best, under Section 304 of IPC could be made out.
33. We have carefully examined the evidence of the injured witnesses
being PW 1 and 3. We find the submission made by the learned
counsels for the appellants that the evidence of PW 1 and 3 is not
truthful and reliable to be without any force rather we find the
evidence of PW 1 and 3 to be truthful and reliable. PW 1 has given a
complete account as to how his father and he were returning back and
the manner in which he was attacked when he was crossing the house
of the appellants. The case of the prosecution is further corroborated
from the eye witness account of PW2 Rajpal and PW4 Jai Bhagwan
who deposed on similar lines on all material aspects. All the
prosecution witnesses were known to the appellants as the appellants
were living in the same village and their houses were adjacent to each
other. In this backdrop, we find the testimonies of PW1, 2, 3 and 4 as
reliable and trustworthy.
34. Applying the law laid down in the case of Ajay Bind (supra) and the
judgment of the Apex Court extracted hereinabove to the facts and
circumstances of the present case, we are persuaded to accept the
alternative limb of submission advanced by the learned counsels for
the appellants that the present case would fall within the ambit of
Section 304 Part I of IPC. We find force in the argument made by the
counsel for the appellants that the injuries were sustained by the
appellants also, which would show that the fight was free for all. The
injuries were caused with the pharsa which is an agricultural
instrument and is found in the house of every farmer. The other
injuries were also given by lathis. The appellants did not act in any
unusual and cruel manner, there was no pre-mediation and there is
every possibility that the appellants had picked the pharsa which is
easily available at their home. This shows that the appellants did not
have the requisite intention to kill the deceased and the incident had
happened on the spur of moment which had occurred over a trivial
issue of water drainage between the appellant and the deceased.
Having regard to the testimonies of the injured witnesses PW1 and
PW3, being the son and the wife of the deceased who had identified
the appellants in Trial Court and attributed a specific role to them.
There was no motive which could have impelled PW1 and 3 to falsely
implicate the appellant and allow the real culprits go scot free.
35. We are being informed that the appellant Mange Ram has been
granted bail vide order dated 30.09.2002 and has undergone about 5
years. The bail was also granted to the appellant Om Parkash vide
order dated 29.01.2003 and has undergone more than 5 years. The
appellant Dharmender has been granted bail vide order dated
11.03.2004 and has undergone more than 6 years. The ends of justice
would be met if we modify the sentence awarded to the appellants and
sentence them to the period already undergone by them.
36. Consequently, the appeal is allowed in part, the conviction and order
on sentence recorded by the Trial Court is modified to the extent
indicated hereinabove. The appeal stands disposed of. The fine
imposed upon the appellant and the default sentence awarded to him
shall remain unaltered.
37. The Trial Court record be sent back along with a copy of this
judgment.
38. Copy of this judgment also be sent to the Superintendent-Central Jail,
Tihar for updating the jail record.
G. S. SISTANI, J.
CHANDER SHEKHAR
AUGUST 25, 2017
//
