Before :- Mohan M. Shantanagoudar and Ajay Rastogi, JJ.
Criminal Appeal No. 1802 of 2010. D/d. 3.10.2019.
Balbir Singh & Anr. - Appellants
Versus
State of Punjab & Anr. - Respondents
For the Appellants :- A. Sirajuddin, Sr. Adv. (A.C.), Ms. Kamakshi S. Mehlwal, Mohit Yadav, Karri Venkata Reddy, S. Xavier Felix, Rohit, Advocates.
For the Respondents :- Ms. Jaspreet Gogia, Anil Kaushik, Tanmaya Mehta, Ms. Arunima Dwivedi, Advocates.
ORDER
Mohan M. Shantanagoudar, J. - The appellants herein are convicted for offence under Section 302 read with Section 149 of the Indian Penal Code, 1860 (for short "IPC") apart from other offences.
2. The case of the prosecution is that the four named accused including appellants herein and four other unnamed accused came in a group and attacked the motor vehicle of the deceased in which the injured eye-witnesses were also travelling. Thereafter, the named accused as well as the unnamed accused assaulted the deceased and PWs 1 and 3 namely, Balkar Singh and Jasbir Singh. Consequent upon such assault, Kamaljit Singh lost his life and PWs 1 and 3 suffered simple/grievous injuries.
3. The appeal of accused No. 1 namely Ravi Kumar is dismissed by this Court and consequently the conviction as against him stands confirmed. It seems that the second accused, namely, Chaman Lal has not approached this Court and has accepted the order of conviction.
4. It is also relevant to note that four unnamed accused were not charge sheeted.
5. Though in our considered opinion, the Trial Court and the High Court are justified in committing Balbir Singh for the offence under Section 302 I.P.C. in view of the number of overt acts on the deceased attributed to him by the prosecution witnesses however, they are not justified in convicting Paramjit Singh, the appellant No. 2 for the offence under Section 302 I.P.C.
6. The PWs 1 and 3 have specifically deposed about the overt acts of Balbir Singh inasmuch as he assaulted with lathi on the head of the deceased and kicked on the groins of the deceased which led to the unconscious state of the deceased. The overt acts attributed to Balbir Singh as well as Chaman Lal and Ravi Kumar are supported by the medical evidence also. Thus, the conviction of Balbir Singh for the offence under Section 302 is liable to be confirmed and the same stands confirmed.
7. However, insofar as appellant No.2, Paramjit Singh is concerned, it appears, he did not share common intention with others in the murder of the deceased. A perusal of Section 34 I.P.C. would clearly indicate that there must be two ingredients for convicting a person with the aid of Section 34 I.P.C., i.e. firstly, there must be a common intention and secondly, there must be participation by the accused persons in furtherance of the common intention. The acts may be different in character but must be arising out of the same common intention in order to attract the provision. It is well settled, insofar as common intention is concerned, it is a state of mind of accused which can be inferred objectively from his acts in the commission of the crime and also from prior and subsequent attendant circumstances. Such evidence can only be inferred facts and proved circumstances. Therefore, 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, before a person can be vicariously convicted for the act of others. [See State of Rajasthan v. Shobha Ram (2013) 14 SCC 732].
8. In the matter on hand, the facts reveal that the first Appellant had grudge against the deceased inasmuch as he had killed the brother of the first Appellant herein. The second Appellant (Paramjit Singh) is not related to the first Appellant. No motive was attached to 2nd Appellant. Be that as it may, on facts, we are of the opinion that Paramjit Singh has not shared the common intention or common object to commit the murder of the deceased. The evidence on record clearly reveals that Appellant No. 2 had assaulted two injured witnesses. For such offence, he may have to be punished under Section 326 I.P.C. inasmuch as such attack has led to grievous injuries.
9. It is brought to our notice that Paramjit Singh has already undergone about five and a half years of sentence. The sentence already undergone by him would be sufficient sentence.
10. Accordingly, we order the following:-
(i) The appeal filed by Balbir Singh, appellant No. 1 stands dismissed;
(ii) The judgment of conviction convicting the accused Paramjit Singh, appellant No. 2 for the offence under Section 302 I.P.C. stands set aside. On the other hand, he is hereby convicted for the offence under Section 326 I.P.C. and is sentenced for the period he has already undergone in prison. Accordingly, the appeal filed by Paramjit Singh, appellant No. 2 is allowed in part accordingly.
11. The appellant No. 1 is directed to surrender forthwith and if not surrendered, the police parties shall take him into the custody forthwith.
