Reserved on 12.7.2018 Delivered on 27.7.2018
Court No. - 41
Case :- CRIMINAL REVISION No. - 720 of 1992 Revisionist :- Badan Singh & Others Opposite Party :- State Counsel for Revisionist :- Ravindra Kumar, Virendra Singh,P.N.Dubey,R.N. Dubey Counsel for Opposite Party :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. This Criminal revision has been preferred against order and judgment dated 8.5.1992 passed by IVth Additional Sessions Judge, Agra in Criminal Appeal No. 9 of 1992(Badan Singh and three others vs. State) thereby partly allowing the appeal maintaining conviction imposed by the Lower Court i.e. Vth Additional Chief Judicial Magistrate, Agra vide order and judgment dated 28.1.1992 in Case No. 4236 of 1991(State vs. Badan Singh and others), but reducing sentence awarded by the lower court and sentencing revisionists to undergo three months' simple imprisonment under Section 452 I.P.C. each and three months simple imprisonment under Section 324/34 IPC each. Appellate Court also directed that sentences shall run concurrently and amount of fine have been directed to be refunded, if deposited.
2. Learned counsel for the revisionists submitted that impugned order was passed against law and fact having illegality, incorrectness and impropriety.
3. The facts of case in brief are that one FIR was lodged on 9.1.1987 at 5 P.M. by Raj Bahadur Singh against four revisionists namely Badan Singh, Chandra Kishore, Munna Lal and Radhey Shyam alleging that on 9.1.1987 complainant Raj Bahadur was working in his field; his wife was at home; animals of Badan Singh were grazing plants of beans and radish; on complaint by his wife, Badan Singh abused and all four accused revisionists armed with sticks(lathi & danda) and axe came and assaulted his wife Smt. Ganga Devi with axe on her head while she rushed to enter in her house. She received four injuries mentioned as under.
1) Incised wound 2 x 0.5 cm x skin deep on right side of head behind right ear. Edges were sharply cut and there was clotted blood on the wound.
2. Contusion 4 cm x 2 cm on scalp on back side of right chest.
3) Contusion 3 X 1.5 CM on right shoulder.
4) Contusion 5 X 0.5 CM on right knee.
4. Case was registered. After investigation and completing all formalities police submitted charge sheet. Charge was framed. Accused persons denied charges and claimed for trial.
5. Court examined P.W.1 Raj Bahadur, P.W.2 Dr. M.S. Rathor, P.W.3 Smt. Ganga Devi, P.W.4 Kapoori Devi and P.W.5.Constable Tej Singh.
6. After closure of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded. They stated in their statements that they are innocent, they have not committed any offence and have been falsely implicated.
7. Trial Court vide judgment and order dated 28.1.1992 convicted and sentenced accused revisionists to undergo nine months' simple imprisonment with fine of Rs.100/- each, in default of payment of fine, additional one month's simple imprisonment under Section 452 IPC and six months' simple imprisonment under section 324/34 IPC. Against this judgment, accused revisionists filed Criminal Appeal No. 9 of 1992 before appellate court which was dismissed vide impugned judgment and order dated 8.5.1992 by reducing the sentences. Hence this revision.
8. Heard Sri Ravindra Kumar, learned counsel for the revisionists and learned AGA for the State.
9. Learned counsel for the revisionists submitted that neither weapon was recovered from the possession of revisionists/accused nor chemical examination report was called for. There is no evidence of pre-planning. No offence under Section 452 IPC is made out as the incident took place in open space called 'Osara'
which is outside the house. There was no intention to inflict injury, hence no offence under Section 324 IPC is made out. The incident occurred on sudden provocation.
10. Learned A.G.A submitted that there is sufficient evidence against accused-revisionists to convict them under Sections 452 and 324 IPC.
11. We have considered rival submissions made by the learned counsel for the revisionists and learned A.G.A. for the State and gone through entire record.
12. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused revisionists beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
13. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
14. P.W.-1 Raj Bahadur who is eye witness and husband of injured Smt. Ganga Devi deposed that accused Chandra Kishore with axe and other accused with sticks(lathi) assaulted his wife. His brother and sister-in-law(Bhabhi) had seen the occurrence. P.W.-2 Dr.M.S. Rathor has proved injury report of Smt. Ganga Devi as Ext. Ka-2. P.W.-3 Smt. Ganga Devi (injured) has deposed that Chandra Kishore assaulted her with axe on her head and other accused assaulted her with sticks(lathi). P.W.-4 Kapoori Devi has also corroborated the statements of Smt. Ganga Devi. P.W.5 Constable Tej Singh has proved other relevant documents i.e. FIR(Ext. Ka-3), G.D. Entry(Ex. Ka-4), Site plan(Ex. Ka-5) and charge sheet(Ex. Ka- 6).
15. From perusal of injuries on the body of injured, no injury was found grievous in nature, one incised wound was found on head(injury no.1). Other injuries are contusions. Hence offence under Section 324/34 IPC is clearly proved against accused Chandra Kishore. According to statements of prosecution witnesses of facts, it is admitted that incised wound was not caused by Badan Singh, Munna Lal and Radhey Shyam. Hence, offence under Section 324/34 IPC is not proved beyond reasonable doubt against Badan Singh, Munna Lal and Radhey Shyam.
16. In a criminal case, every person is responsible for his own act. Hence the question is whether on the basis of Section 34 IPC these three accused revisionists namely, Badan Singh, Munna Lal and Radhey Shyam would be liable to be held guilty under Section 324/24 IPC or not. Section 34 IPC is reproduced hereunder:-
"Section 34 in The Indian Penal Code 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."
17. Word used "common intention" under Section 34 IPC is very material and it can be decided on the basis of case to case facts. It is settled law that if common intention is proved but no overt act is attributed to the individual accused, section 34 of the code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 IPC cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds. It is also settled principle of law that burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert as it has been held in the case of Mrinal Das v. State of Tripura, AIR 2011 SC 3753. In this case common intention is absent as discussed above.
Hence revisionists namely, Badan Singh, Munna Lal and Radhey Shyam are entitled for benefit of doubt under Section 324/34 IPC.
18. From perusal of FIR and the statements of witnesses, it is very clear that incident took place suddenly. It was not pre-planned. Hence, meeting of mind of all accused before the incident was not possible. Hence in my opinion, accused revisionist No.2 Chandra Kishore is liable to be convicted under Section 324 IPC and other accused revisionists Badan Singh, Munna and Radhey Shyam are entitled to be given benefit of doubt and are liable to be acquitted under Section 324/34 IPC.
19. So far as offence under Section 452 IPC is concerned, both trial Court and lower appellate Court categorically held that the incident took place inside the house. Learned counsel for revisionists submitted on this point that the incident took place in 'Osara, outside the house but from perusal of record, it is clearly proved that 'osara was being used as part of house. Hence, I find no force in the argument of learned counsel for revisionists and offence under section 452 IPC is proved against all revisionists.
20. So far as sentence is concerned, Badan singh, Chandra Kishore, Munna and Radhey Shyam are now 60, 55, 49 and 52 years of age respectively. The incident is of the year 1987 and 31 years has elapsed. Considering the age, role of accused-revisionists and time of incident, this Court finds that no purpose would be served to sent accused Badan Singh, Munna Lal and Radhey Shyam to jail by convicting under Section 452 IPC. On this point lenient view is taken and accused revisionists Badan Singh, Munna Lal and Radhey Shyam are convicted and sentenced to imprisonment already undergone with fine of Rs.1000/- each under Section 452 IPC which shall be deposited within two months from the date of this judgment. In default of fine, they shall undergo one month's simple imprisonment. Revisionists Badan Singh, Munna Lal and Radhey Shyam are hereby acquitted under Section 324/34 IPC.
21. So far as conviction and sentence of accused revisionist Chandra Kishore is concerned, from perusal of record, it is clearly proved that he had assaulted injured Smt. Ganga Devi with axe and she received one incised wound on her head. Oral evidence is corroborated by the medical evidence in the case of revisionist No.2 Chandra Kishore. Hence, no lenient view can be taken in favour of accused revisionist No.2 Chandra Kishore. His conviction and sentence under Section 452 IPC and 324/34 IPC shall remain intact as per judgment and order dated 8.5.1992 passed by IVth Additional Sessions Judge, Agra in Criminal Appeal No. 9 of 1992 and revision of Chandra Kishore is hereby dismissed.
22. The revision is partly allowed in respect of revisionist Nos. 1,3 & 4 namely Badan Singh, Munna Lal and Radhey Shyam.
23. Copy of this judgment be transmitted to the Court concerned for necessary compliance.
24. A compliance report be sent to this Court within three months. Office is directed to keep the compliance report on record.
Order Date :- 27.7.2018 P.P.