IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 680 of 2010
With
CRIMINAL APPEAL No. 1088 of 2006
With
CRIMINAL APPEAL No. 1175 of 2006
For Approval and Signature:
HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/
HONOURABLE MR.JUSTICE N.V. ANJARIA Sd/
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? 1 to 5 NO =========================================================
SRIKANT @ PATEL RAMSHANKAR VERMA - Appellant(s)
Versus
STATE OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR RAMNANDAN SINGH, MR HARSHAD K PATEL and MR PM DAVE for Appellants MR RC KODEKAR ADDL PUBLIC PROSECUTOR for Respondent State =========================================================
CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA
and
HONOURABLE MR.JUSTICE N.V. ANJARIA
Date : 09/02/2012 CAV JUDGMENT
(Per : MR.JUSTICE D.H.WAGHELA)
1. These three appeals are preferred by three accused persons convicted for the offence punishable under section 302 read with section 34 of the Indian Penal Code (IPC) and sentenced to life imprisonment and fine of Rs.2,000/- each by learned Sessions Judge, Junagadh, in Sessions Case No.35 of 2003. Among the three appellants, Suresh @ Kaliyo Buddhilal (for short A-1) has preferred Criminal Appeal No.1175 of 2006, Srikant @Ramshankar (for short A-2) has preferred Criminal Appeal No.680 of 2010 and Satishsinh Kailashsinh (for short A- 3) has preferred Criminal Appeal No.1088 of 2006, and learned counsel for each of the appellants have been heard and the appeals are disposed by this common judgment.
2. While A-1 and A-2, aged 22 and 27 respectively, were in Junagadh jail and A-3, aged 19, was under preventive detention in the same jail, on 31.1.2003 they had gone into the barrack known as “Manoranjan Barrack” at around 08.00 a.m. and another convicted inmate namely, Kaluji Bhaguji, was attacked with a knife due to which he had to be taken to a local hospital and then referred to Rajkot Civil Hospital where he died of the fatal wound inflicted on him. According to the prosecution case, A-2 and A-3 had caught hold of the victim in the barrack and A-1 had inflicted fatal wound on his chest by a knife made out of a spoon used in cooking. The cause of the conflict was stated to be some dispute over watching T.V. in that barrack.
2.1 On the accused being committed for trial, 28 witnesses were examined and 64 documents were produced and exhibited to prove commission of the offence by the appellants. The trial court, taking judicial notice of certain facts about the prevailing conditions in the jail and relying mainly upon the eye-witness account and statements of the victim before several witnesses, held the offence to have been proved beyond reasonable doubt against all the three accused persons.
3. Learned counsel, appearing for A-1 and A-2, submitted that no motive for committing the murder was established in evidence, no common intention could be inferred and relevant provisions of the Jail Manual were not followed by the staff of the jail. It was submitted that there were various contradictory statements made by the witnesses and in absence of any evidence of meeting of mind among the accused, it was, at the worst, a case of quarrel which resulted into blows of knife by A-1, while A-2 and A-3 had accompanied him in the manoranjan barrack. It was, however, submitted on behalf of A-3 that in absence of birth-date, he was vaguely described as aged 18 and, as a PASA detenue, kept in a separate barrack. Therefore, he could not have acted in concert with the other accused. It was also submitted that there was no reliable evidence for any overt act on his part and in absence of any motive, he could not have been convicted for the capital crime only by invoking section 34 of IPC. It was pointed out that after full appreciation and discussion of evidence, even the trial Court has not convicted A-2 and A-3 for the offence under section 114 of IPC.
4. Re-examining the relevant evidence on record in view of the above submissions, it was seen that PW-1 (Exh.18) Dr.Ganesh Pyarelal of Government Medical College, Rajkot, deposed that he had carried out postmortem of the victim and found four wounds on his dead-body, out of which the first injury was a stab wound cutting through the liver, pancreas and aorta in the abdomen and it was 11 cm. deep, which caused the death. The other injuries were not fatal. Dr.Atul Kumbawat (PW.2 Exh.25) deposed that the victim was brought to Junagadh Civil Hospital at around 08.45 a.m. and he had given him the history of his having been stabbed by A-2 and three others. The victim was found to have two injuries, one below the chest and the other on his right-hand thumb, which was 3 cm x 5 cm muscle deep. Both the injuries were caused by a sharp weapon. He had stitched the wounds and referred the case to Rajkot Civil Hospital. He had informed the police about the entry and requirement of taking dying declaration. PW.3 (Exh.31), PW.4 (Exh.39) and PW.5 (Exh.41) were panch witnesses who did not fully support the prosecution case. Baldevchand (PW.6 Exh.43), who was on duty as Sepoy in the jail, deposed that while he was getting barrack Nos.11 to 14 cleaned, he had heard shouts from manoranjan barrack when he saw the victim coming out of the barrack with bleeding from his body and both hands on his chest. The victim sat down near him and when asked what had happened, he told the witness that while he had gone to watch T.V. in manoranjan barrack, he had verbal altercations with the accused whereafter A-2 and A- 3 had caught hold of him and A-1 had given him blows with a knife. Other inmates of the barrack had gathered around and the victim was taken to the jail dispensary. He admitted that the victim was treated at the dispensary only for 5 to 10 minutes, he had not informed the city police station by phone and lodged complaint only after 2 p.m. He admitted that his complaint did not contain the allegation that A-3 had caught hold of the victim. Upon being recalled as a witness, he further submitted that he had asked the victim in the jail dispensary about the injury, and names of the accused were given thereat. PW.7 (Exh.44) Jagdish Mafatlal turned hostile, although he claimed to be a friend of the victim, and deposed that he did not know the accused persons. Similarly PW.8 (Exh.45), PW.9 (Exh.46) and PW.11 (Exh.48) and PW.12 (Exh.49) turned hostile and did not support the prosecution case, even as they were jail inmates at the relevant time. Vipul Bhogilal PW.13 (Exh.50), however, stated that he had seen the victim running out of manoranjan barrack and going into his barrack No.4 and thereafter falling near the gate. Thereafter he was one of the persons who took the victim into the jail dispensary and when asked the victim as to what had happened, he was told that the accused had come to beat him but had not given the name of A-3. He knew the victim beforehand as a friend and also knew A-1 and A-2 as they shared the same barrack. PW.14 (Exh.51) and PW.15 (Exh.52) turned hostile. PW.15 deposed in his cross- examination that the victim was not in a position to speak anything till he was taken into the jail dispensary. No other witness claimed to have any personal knowledge about the incident.
4.1 Papers related to preventive detention of A-3 (Exh.63) for his detention since September 2002 everywhere mentioned his age to be 18 years. PW.18 (Exh.68) Himmat R.Bhambre, Jail Subedar and PW.21 (Exh.78) Motilal Povaliya, Jail Sepoi, PW.22 (Exh.79) Sadashiv Madhavjibhai, Police Constable, PW.24 (Exh.81) Batukbhai Tapubhai, Policeman, all reiterated that during treatment of the victim at Junagadh and on his way to Rajkot, the victim had told them that the accused had attacked him in which A-2 and A-3 had held him and A-1 had stabbed him.
4.2 Kantibhai Bikhabhai PW.21 (Exh.82) was an inmate of manoranjan barrack and claimed to have seen the incident. According to his deposition, A-2 and A-3 had gripped the victim and A-1 had stabbed him with a knife-like weapon in the chest for the reason that three or four days ago there had been a quarrel about watching T.V. He admitted in his cross- examination that he did not know the names of even the inmates of manoranjan barrack and the victim was kept in another barrack No.5. Nanjibhai Kalasava PW.27 (Exh.94), Police Constable at Junagadh City “A” Division Police Station, deposed that the complaint about the incident was registered as I-C.R.No.33 of 2003 for the offence under sections 307, 114 etc. That complaint (Exh.95) was registered at 14.30 on 31.1.2003 and, inter alia, stated that during the verbal altercation among the accused and the victim, A-2 had caught hold of the victim and A-1 had stabbed him in the chest.
5. Upon perusal of the evidence as briefly narrated hereinabove, it was clear that commission of the offence under section 300 of IPC was proved beyond reasonable doubt. As for involvement of the accused persons, it was unmistakably coming out in evidence that A-2 had caught the victim and A-1 had given the fatal blow with a crude knife. Therefore, A-1 and A-2 were found and held to have acted in concert and indicated their involvement in the offence and carrying out the assault with a common intention. However, as far as A-3 was concerned, the evidence of his involvement is found to be initially shaky and buttressed later on by consistent and similar statements of the witnesses who handled the victim. Even as presence of A-3 at the time and place of offence could not be seriously disputed, there was hardly any reliable evidence about his sharing of common intention with A-1 and A-2. In the deposition of important and independent witnesses (PW.2 Exh.25 and PW.13 Exh.50) or in the FIR the name of A-3 did not figure. As per further statement of A-3 recorded on 09.03.2006, his age was 19 years, after three years of the date of offence, and hence he could be below the age of 18 years at the time of the offence. It was, on that basis, submitted by learned counsel for A-3 that even as no positive evidence of his date of birth or age could be led or produced even at the stage of hearing of the appeal, benefit of doubt was required to be given to A-3.
6. It was jointly submitted on behalf of the appellants that as held in Chaman v. State of Uttaranchal [AIR 2009 SC 1036] :
“6. .......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 plan or meeting of mind 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 moment; but it must necessarily be before the commission of the crime. The true contents of the Section are 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 (AIR 1977 SC 109), 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.
“9. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.”
6,.1 Parasa Raja Manikyala Rao v. State of A.P. [AIR 2004 SC 132] was relied upon for the proposition that:
“11. ......Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In combination of this kind a mortal stroke, though given by one of the party, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has joined his companion to do an unlawful act. Leading feature of this section is the element of participation in action. The essence of liability under this section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. .....The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different time and places. The physical presence at the scene of offence of the offender sought to be rendered liable under this section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this section, it must be established that (i) there was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.”
“12. ............To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. ..”
6.2 Jai Bhagwan v. State of Haryana [(1999) 3 SCC 102] was relied upon for the proposition that:
“10. ......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.”
6.3 The following observations of the Apex Court in Ramashish Yadav v. State of Bihar (AIR 1999 SC 3830] were relied upon for the proposition that:
“3. .......Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert. ”.
6.4 Laxmanji v. State of Gujarat [(2008) 17 SCC 48] was relied upon for the proposition that:
“11. ......In order to bring a case under section 34, it is not necessary that there must be a prior conspiracy or premeditation. The common intention can be formed in the course of occurrence. To apply section 34 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 common intention is proved but no over 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 common intention is absent, Section 34 cannot be invoked.”
6.5 Judgment of the Apex Court in Raju v. State of Haryana [(2010) 3 SCC 235] was relied upon for the proposition that in absence of any common intention, conviction under section 302 with the aid of section 34 cannot be sustained. In Kashmira Singh v. State of Punjab [AIR 1994 SC 1651], the Apex Court observed that: “.....Common intention is to be inferred from the circumstances particularly the part played by the accused and the surrounding circumstances namely nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable.”
Learned counsel Mr.Singh lastly relied upon the judgments of the Apex Court in Darbara Singh v. State of Haryana [AIR 1992 SC 1429] and Munna and Ayyia v. State of U.P. [AIR 1993 SC 278] to submit that the person holding the victim may not be having the same intention of killing or inflicting fatal wounds on the victim. In Darbara Singh (supra), the Apex Court noted the fact that the persons inflicting other injuries after the first fatal wound by the main accused had not inflicted the injuries on any vital part of the body and hence they were held guilty of the offence under section 304 Part II read with section 34 of IPC. In Munna and Ayyia (supra), the three Judge bench of the Supreme Court recorded a finding that Ayyia had no idea that his brother would take out the knife and cause the fatal injury to the deceased. In the circumstances it was difficult to attribute to him a common intention to kill the deceased and connect him with the aid of section 34 of IPC. One could infer that he shared the common intention to beat up or assault the deceased, though not to kill him. Even as both the cases rested upon appreciation of evidence on record in each case, the evidence of holding of the deceased in the present case has to be taken as indicative of facilitating stabbing of the victim by A-1 and the other injury indicated the victim's resistance by movement of his hand and his ultimate failure to defend himself or run away by active participation of A-2.
7. In the facts of the present case, the evidence of common intention could be gathered only from their overt acts of participation in commission of the offence and holding of the victim for facilitating his stabbing could certainly lend to the inference of common intention to kill him. However, as seen earlier, the evidence of holding of the victim by A-2 is quite clear and convincing, similar reliable evidence in respect of A-3 could not be found. Therefore, reasonable doubts about his being privy to any particular plan or his role in facilitating or abetting the offence have to be entertained. His mere presence at the scene of offence or even a presumption of his having accompanied A-1 and A-2 cannot necessarily translate into an inference that he shared at any point of time an intention to kill the victim. As against that, the preparation of A-1 in carrying the knife and stabbing the victim with such force as to insert full length of the blade of the knife and the naming of A-2 by the victim himself as the person who held him at that time leave no room for doubting the actions and intention of A-1 and A-2. The argument that A-1 and A-2 may be convicted, even if the evidence against them is taken at its face value, only for culpable homicide not amounting to murder, has to be stated to be rejected in view of the fact that the injury intentionally inflicted upon the victim was such as the offenders would know to be likely to cause death. Therefore, in absence of any reliable evidence about any prior incident, preparation, meeting of mind, motive or actual participation of A-3, he has to be given the benefit of doubt and acquitted of the offence in which he has been implicated only on the strength of provision of section 34 of IPC.
8. It may be pertinent to note that the prosecution did not lead any evidence about any association or friendship of A- 3 with A-1 or A-2; and admittedly he was kept in a separate barrack for detenues as distinguished from under-trial or convicted prisoners. Under such circumstances, in absence of any evidence about the kind of words exchanged by the assailants and the victim, it would be quite hazardous to infer any common intention or even knowledge about A-1 holding any weapon, as far as A-3 is concerned. Therefore, even as learned counsel for A-3 could not produce any evidence about exact age of A-3, on account of the alleged absence of any document related to his birth-date due to his belonging to more backward and poorest strata of society, he is entitled to benefit of reasonable doubt in view of the paucity of evidence against him.
9. Accordingly, in the facts and for the reasons discussed hereinabove, Criminal Appeal No.1175 of 2006 and Criminal Appeal No.680 of 2010 are dismissed and Criminal Appeal No.1088 of 2006 is allowed with the direction that the appellant, namely Satishsinh Juvan Kailashsinh Juvan is acquitted of the charge for offences punishable under section 302 read with section 34 of IPC and ordered to be released, if not required to be detained in connection with any other case, after his executing his personal bond for Rs.5,000/- with surety of like amount in terms of section 347-A of the Code of Criminal Procedure.
(KMG Thilake) Sd/-
( D.H.Waghela, J.) Sd/- ( N.V.Anjaria, J.)