Court No. - 71
Case :- CRIMINAL APPEAL No. - 1662 of 1993 Appellant :- Ram Naresh Respondent :- State Counsel for Appellant :- A.R. Dwivedi,O.P.Tripathi,P.P. Pandey,R.K.Pandey,Rajul Bharbava,S. N. Singh,S.K.Shukla,U.K. Singh Counsel for Respondent :- A.G.A.
Hon'ble Siddharth,J.
Heard Sri Shiv Narayan Singh, learned Counsel for the appellant and learned AGA for the State.
As per office report dated 26.02.2013, despite service of notice on opposite party No.2, no one has put in appearance on behalf of opposite party No.2.
This criminal appeal is directed against the judgment and order dated 22.9.1993 passed by Ist Additional Sessions Judge, Banda in Session Trial No. 253 of 1989 (State Vs. Ram Naresh and others), under Sections 147, 148, 149, 307 IPC, Police Station Tindwari, District Banda.
The appellant has been convicted under Section 307/34 IPC and sentenced to 4 years' rigorous imprisonment.
The prosecution case in brief is that the incident regarding attempt to murder of the informant, Rajjan, took place on 8.10.1988 at 6 a.m., when he was going to ease himself. As soon as he reached Bada, the accuseds, Ram Naresh, Ram Sameep @ Raja Babu, armed with a gun, Anil Kumar @ Chhote Lal armed with Karbine and Ram Das and Ashwani Kumar armed with Ballam, surrounded informant. Co-accused, Dubariya, also came with Katta and on his exhortation, accused, Ram Naresh fired at the informant with intention to kill him. The informant received injury on his right leg. The incident was seen by Kallu and Ram Prakash, who were also going to ease themselves. The report of the incident was lodged as Case Crime No. 132/1988, under Section 147/149, 148, 307 IPC at Police Station Tindwari, District Banda on 08.10.1988 at 10:00 a.m. and the first information report was registered.
The medical examination of the informant was conducted on 11:00 a.m. on the same day by doctor, Deshraj Singh and following injuries were found:-
1. A circular would 0.3 cm, inverted margins, with tissue loss, 3 cm. above the right knee joint outer lateral surface.
2. A circular would with loss of tissue, margins are inverted, 0.3 cm. circular in size. 13 in number on the right leg anterior and lateral surface. Oozing of blood present.
3. A lacerated would on the right leg inner side 2cm. X 0.3 cm. irregular margin. Oozing of blood present. 19.5 cm. above from right ankle joint.
4. A circular would 0.3 cm. on the right foot dorsal surface lateral side. 7 cm. below the right ankle joint. Margins inverted. Tissue loss oozing of blood present.
The case was investigated by Sub Inspector, Kamal Singh, who made a site plan and found that co-accused, Ram Sameep, was prima facie involved in the incident on the basis of evidence collected by him and the case was converted under Section 307 IPC. Thereafter, the investigation was handed over to another Investigating Officer, Ramadhar Singh Yadav, who prepared another site plan and submitted the charge-sheet against all the accuseds. Charges were framed under Sections 147, 148, 307/149 IPC against the accuseds. A separate charge-sheet was filed against co-accused, Dubariya. The trial of co-accused, Dubariya, was separated and the appellants were tried in S.T. No. 253 of 1989.
Dr. Deshraj was examined as PW-1 and he proved his medical report and the injuries mentioned above and has stated that these injuries could have proved fatal to life in case of excess discharge of blood. He further admitted that such injuries can also be caused by Suza and Barchhi also.
Injured informant, Rajjan, was examined as PW-2 and he repeated the version of FIR and further stated that the accused, Ram Naresh, fired at him, which caused injuries in his right leg. He ran for 10-25 steps on being challenged by the accuseds and when he looked back, he saw Ram Naresh firing on him. He stated that he took the shelter of Baram Baba tree and saved himself.
PW-3, Ram Prakash Singh, who was the eye-witness of the incident, stated that Ram Naresh fired at the informant, which hit his right leg. He saw the incident under the cover of tree of Baram Baba. He did not saw any blood on the spot, but saw the blood coming out of wound of informant, Rajjan.
PW-4, Dr. M.C. Mittal proved the X-ray report, wherein he found small images of metallic density.
PW-5, Constable, Mahaveer Singh, proved the lodging of FIR and G.D. Entry.
PW-6, Ram Adhar Yadav, proved that he was entrusted with the investigation of case by the order of circle office. After receiving the papers from earlier Investigating Officer, he investigated further and recorded statements of witnesses. On the pointing of the witnesses he prepared site plan and submitted charge-sheet against all the accuseds. He admitted that there is difference in the site plan prepared by the earlier Investigating Officer and him.
PW-7, the initial Investigating Officer, Kamal Singh, stated that he recorded the statement of Constable, Mahaveer Singh, and informant on 8.10.1988 and investigated the scene of incident on 24.10.1988 and recorded the statements of some witnesses and prepared the site plan. He found the accused, Ram Sameep, only involved in the offence and the implication of other accuseds as false. He converted the case under Section 307 IPC only and proved the general diary entry in this regard. He further stated that thereafter, Investigation was transferred from him and he gave investigation of this case to another Investigating Officer, Ramadhar Singh Yadav, who again prepared the site plan, recorded the statements of witnesses and finally submitted the charge-sheet against all the accuseds. He stated that PW-2, Rajjan, never gave the statement that while being chased, he looked back and saw that Ram Naresh was firing at him. He only stated that when he reached Bada then the incident took place. The implication of accuseds was found due to “party bandi” in the village. He did not found any blood on the spot.
The accuseds were examined under Section 313 Cr.P.C. and they denied their involvement in the incident. They stated that injuries were caused by some other person in dark and they have been falsely implicated. They filed documents regarding Session Trial No. 430 of 1973, under Section 307/34 IPC (State Vs. Babu Lal and others) in evidence, proving prior enmity of P.W.-3 with the accuseds.
The trial court found that the alleged offence is made out only against the appellant, Ram Naresh, under Section 307/34 IPC and the other accuseds were given benefit of doubt and acquitted.
After hearing the rival contentions, this Court finds that the first Investigating Officer, namely, Kamal Singh, prepared a site plan, which was exhibited as Ex.A-8 and he found the incident to have taken place at one place. However, the subsequent Investigating Officer, Ramadhar Singh Yadav, prepared another site plan, Ex.A-6 and found the incident to have taken place at a different place. The first Investigation Officer found that co- accused, Ram Sameep, fired on the informant, Rajjan. Subsequently appointed Investigating Officer found the appellant, Ram Naresh, to be the person, who fired on the injured person. Court below has not taken into account that both the investigations conducted by the two Investigating Officers and decided the case only on the basis of report of subsequently appointed Investigating Officer. Counsel for the appellant has heavily relied upon the investigation of first Investigating Officer in favour of the appellant and has stated that the first Investigating Officer was only changed only because the investigation was going in favour of the appellant and the subsequent Investigating Officer implicated the appellant and other accuseds. Both the Investigating Officers have stated in their statements before the court that Rajjan never told them that when he looked back, while running away from the accuseds, who were chasing him, he saw Ram Naresh filing at him.
There were contradictory investigation reports on record, the court below was required to consider both the police reports, while reaching at any conclusion of the guilt of the appellant. Both the Investigating Officers found the scene of occurrence at different places and both found different accuseds to have fired on the injured, but the court below has not harmonized the contradictory investigation reports and evidence collected by the two Investigating Officers and has convicted and sentenced the appellant. There was evidence of enmity of PW-3 with the accuseds and this was the cause of false implication of the accuseds by the informant. The appellant was implicated by PW- 2 and the PW-3 because he was employed as a teacher and on account of village politics, he was falsely implicated. There was no motive for implication of the appellant in this case and the injured failed to prove as to why the appellant caused injuries to him. There were five accuseds armed with fire arms and had there intention been of killing Rajjan all could have fired at him.
The injury was caused only on the right leg of the injured, PW-2, which was not a vital part and therefore, the implication of the appellant under Section 307 IPC is not justified. It was not clearly proved whether it was the accused, Ram Sameep, or the appellant who caused the injury on the right leg of the appellant. There were five accuseds, who were armed with guns and Katta and one accused armed with Ballam and, therefore, it was incumbent upon the prosecution to have clear proved as to who fired on the appellant, when he was chased by all of them together.
Both the Investigating Officers have clearly stated that the injured never informed them that he saw the appellant firing at him, when he looked back while running and therefore, they did not recorded this fact in his statement under Section 161 Cr.P.C. However before the court the appellant stated that when he looked back he saw the appellant firing at him. The court has relied upon his statement and the statement of the PW-3, Ram Prakash, and has convicted the appellant. Unless the place of incident was clearly proved, the incident cannot be said to have been proved and the trial court has accepted the prosecution case without determining what was the exact place of occurrence. The other witnesses also could prove exactly where the incident took place.
In order to convict the person under Section 307 IPC, it is more important to prove the intention of the accused was to kill the victim rather than proving the act to kill. In other words, to convict a person under Section 307 IPC, the attempt to kill the victim there must be proof fo specific intention or desire to murder the victim. The nature of weapon used, manner in which it is used, the motive for the crime, severity of blow, the part of body where injury is inflicted, is taken into consideration to determine the intention of the accused under this Section. Therefore, in case where accuseds had a dangerous weapon, but he inflicted only minor injuries on the victim showing that he had no intention to murder the victim, the accused will not be convicted under Section 307 IPC. Similarly, where accused stabs the victim in the stomach near the navel region with big knife, blade, the accused would be liable to be punished for attempt to murder. Thus without intention or knowledge of accused to murder the victim being established, the offence of attempt to murder cannot be proved against the accused.
Under Section 307 IPC, the offence is complete even though the death of victim does not takes place. It will still be a crime under this Section, when no harm is inflicted upon the victim but the Section implies that the act of the accused must be capable of causing death. An accused cannot be acquitted under this Section merely because the injury inflicted on the victim was in the nature of simple hurt.
In the present case, the appellant has been convicted alone under Section 307 read with Section 34 IPC and other co- accuseds have been acquitted. The court below has not found any other accused involved and has acquitted all the accused persons and therefore, the conviction of the appellant under Section 34 IPC cannot be justified since common intention of all the accuseds to commit the alleged crime under Section 307 IPC has not been proved by the prosecution.
Reliance can be placed on the Judgment in the case of
Suresh And Another Vs. State Of U.P., (2001) 3 SCC 673,
“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.
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. 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 dissauded 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 1919 Patna 111] 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.
In Shreekantiah Ramayya Munipalli & Anr. v. State of Bombay [AIR 1955 SC 287] this Court held: "It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act."
(Emphasis supplied) This Court again in Takaram Ganapat Pandare v. State of Maharashtra [AIR 1974 SC 514] reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. "Criminal sharing, overt or covert, by active presence or by distant direction making out a certain measure of jointness in the commission of the act is the essence of Section 34".
In a case where the deceased was murdered by one of the two accused with a sharp edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while the other accused, his brother, without taking part stood by with a spear in his hand to overcome any outside interference with the attainment of the criminal act and both the accused ran away together after the murder, this Court in Lalai alias Dindoo & Anr. v. State of U.P. [AIR 1974 SC 2118] held that these facts had a sufficient bearing on the existence of a common intention to murder.
In Ramaswami Ayyangar & Ors. v. State of Tamil Nadu [AIR 1976 SC 2027] this Court declared that Section 34 is tobe read along with preceding Section 33 which makes it clear that the "act" mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of "criminal act" as mentioned in that section. In Ramaswami's case (supra) it was contended that A2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly he did not physically participate in the fatal beating administered by co-accused to the deceased and thus the "criminal act" of murder was not done by all the accused within the contemplation of Section 34; and secondly the prosecution had not shown that the act of A2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a pre-arranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the "criminal act". The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A2 under Section 302/34 of the Code in that case was upheld.
In Rambilas Singh & Ors. v. State of Bihar [AIR 1989 SC 1593] this Court held:
"It is true that in order to convict persons vicariously under S.34 or S.149 IPC, it is not necessary to prove that each and everyone of them had indulged in over acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly." (Emphasis supplied) Again a three Judge Bench of this Court in State of U.P. v. Iftikhar Khan & Ors. [1973 (1) SCC 512] after relying upon the host of judgments of Privy Council and this Court, held that for attracting Section 34 it is not necessary that any overt act must be done by a particular accused. The section will be attracted if it is established that the criminal act has been done by one of the accused persons in furtherance of the common intention. If this is shown, the liability for the crime may be imposed on any one of the person in the same manner as if the act was done by him alone. In that case on proof of the facts that all the four accused persons were residents of the same village and accused Nos.1 and 3 were brothers who were bitterly inimical to the deceased and accused Nos.2 and 4 were their close friends, accused Nos.3 and 4 had accompanied the other two accused who were armed with pistols; all the four came together in a body and ran away in a body after the crime coupled with no explanation being given for their presence at the scene, the Court held that the circumstances led to the necessary inference of a prior concert and pre-arrangement which proved that the "criminal act" was done by all the accused persons in furtherance of their common intention.
In Krishnan & Anr. v. State of Kerala [JT 1996 (7) SC 612] this Court even assuming that one of the appellants had not caused the injury to the deceased, upheld his conviction under Section 302/34 of the Penal Code holding:
"Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of a overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
In Surender Chauhan v. State of M.P. [2000 (4) SCC 110] this Court held that apart from the fact that there should be two or more accused, two factors must be established - (i) common intention and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability.”
From above authorities of the Apex Court is clear that under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established" (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions. Section 33 defines the "act" to mean as well a series of acts as a single act and the word "omission" denotes as well a series of omissions as a single omission. The distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between "common intention" and "similar intention" may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.
It is true that the victim and one of his witness stated that it was the appellant, who caused gun shot injury to the appellant, but both have failed to prove that the common intention of the appellant with other accuseds was to kill him.
Considering over all facts and circumstances of the case, this Court comes to the conclusion that prosecution failed to prove that it was the appellant, Ram Naresh, who caused the injury to the appellant and the intention of the appellant was to kill the victim by making such an attempt. Consequently, the judgment and order dated 22.9.1993 passed by Ist Additional Sessions Judge, Banda, is hereby set aside. The appellant is on bail. His personal bond and sureties are discharged.
The record of this case is directed to be remitted back to the trial court alongwith certified copy of this order, within three weeks.
This criminal appeal stands allowed.
Order Date :- 27.02.2019 Ruchi Agrahari