Harihar Singh and Others vs Emperor

Kulwant Sahay, J.—The appellant Harihar Singh has been convicted by the Sessions Judge of Shahabad u/s 324, Indian Penal Code, and sentenced to 18 months'' rigorous imprisonment; and the appellant Jugal Singh has been convicted u/s 324/34, Indian Penal Code, and sentenced to 6 months rigorous imprisonment. They have been found guilty of voluntarily causing hurt to one Brahamdeo Singh who is distantly deleted to the appellants. The prosecution story shortly stated is as follows:

Harihar Singh is the uncle of Jugal Singh. One Charittar Singh, who was also charged along with the appellants for an offence u/s 324 read with Section 34, Indian Penal Code but has been acquitted by the learned Sessions Judge, is cousin of Harihar Singh two or three degrees removed. The complainant Brahamdeo Singh is also a distant cousin of Harihar Singh. Harihar Singh had another cousin Kartik Deo Singh who died about ten years ago leaving a young widow Mt. Piaro Kuer. This Kartik Deo Singh was the first cousin of Harihar Singh.The complainant Brahamdeo Singh had some intrigue with the widow Mt. Piaro Kuer and about 2 or 2� years ago he eloped with the widow and went to Calcutta with her. The widow, however, left Brahamdeo Singh at Calcutta and there is no trace of her. The appellant Harihar Singh and the members of his family were highly enraged with Brahamdao Singh for taking away the widow and for fear of the appellants and his family, Brahamdeo Singh stayed at Calcutta for about 2 or 2� years and accepted service there as the gateman in the Howrah Railway Station. It is alleged that Brahamdeo Singh had left three nephews at his house at Brarhi when he went to Calcutta, and in his absence the appellants vexed the nephews so much that they had to leave the house, and they went to reside with a relative of theirs in a different village. Brahamdeo Singh returned to his village about four months before the occurrence. He first went to the place where his nephews were living and then he came to his house at Brarhi. He found that the doors and shutters of his house had been taken out and everything else had been removed and the two appellants and Charittar Singh were sitting in the court-yard of the house. He enquired from them as to what had become of the doors and shutters upon which the appellants and Charittar Singh chased him with the object of beating him with lathis. Brahamdeo Singh fled from the place and went direct to Buxar where he filed a complaint before the Sub-Divisional Magistrate. Upon a report of the police the Sub-Divisional Magistrate summoned the appellants and Charittar Singh, and a case under Sections 447 and 352, I.P.C., was started against them. Brahamdeo Singh was living at the place of his relatives or friends at different places and on 10th February 1924, a Court peon Abdul Mian went to Brarhi to serve summons upon the witnesses in the case u/s 447 against the appellants. Brahamdeo Singh went to Brarhi to have the summons served and was sitting at the darwaja of Bahadur Singh, Prosecution Witness No. 10. The summonses, however could not be served upon the witnesses inasmuch as none of the witnesses was found at his home and the Court peon left the place at about 1 p.m. The complainant, however, stayed in the dhaba of Bahadur Singh and Nirbhai. Bahadur Singh and Rampalak Singh and others were also sitting in the same dhaba. It is alleged that while Brahamdeo Singh was lying down in the dhaba with his head supported on the palm of his hand and was talking with Rampalak Singh, Witness No. 5, the appellants and Charittar Singh came at the dhaba, the appellant Harihar Singh being armed with a sword and the appellants Jugal Singh and Charittar Singh being armed with lathis, and while Charittar Singh and Jugal Singh stood at the entrance of dhaba Harihar Singh struck Brahamdeo Singh with a sword twice. The first blow hit him on the left kneecap upon which Brahamdeo Singh, stood up, and while he was getting up Harihar Singh aimed a second blow with the sword which Brahamdao Sing warded off, but in doing so had his two fingers of the left hand injured. The witness Rampalak Singh attempted to seize the sword and he was also slightly injured. The complainant Brahamdeo Singh fled from the place through one of the doors of the dhaba and went straight to the police station where he lodged his first information at 7 p.m., the occurrence having taken place in the afternoon of 20th February 1924. (His Lordship after discussing evidence confirmed the conviction and sentence on Brahamdeo Singh and proceeded as follows.)

As regards Jugal Singh he has been convicted u/s 324 read with Section 34, I.P.C. The evidence so far as he is concerned is clear chat he went to the place of occurrence with Harihar Singh and had a lathi in his hand; that he stood at the door with the lathi while Harihar Singh struck Brahamdeo with the sword. There is evidence that when Brahamdeo Singh wanted to run away Jugal obstructed his passage and prevented him from getting out of the dhaba. That he came with Harihar Singh and was standing at the entrance of the dhaba with the lathi in his hand is deposed to by almost all the prosecution witnesses and there is no reason to differ from the learned Sessions Judge about his presence with the lathi at the place of occurrence. The question is whether he can be convicted u/s 324 read with Section 34, I.P.C. In order to make him liable u/s 324 it is necessary to prove that the criminal act of assaulting Brahamdeo was done by Jugal Singh also. It has been argued by the learned Counsel for the appellants that upon the evidence it is clear that Jugal Singh did not take part in the assault and there fore he is not a person by whom the criminal act was done in the present case as provided by Section 34, I.P.C.S. 34 provides that 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. The question is whether in the present case the criminal act, namely the assault upon Brahamdeo Singh, was done by Jugal Singh within the meaning of Section 34, I.P.C. The question as regards the proper meaning and effect of Section 34 has been the subject of consideration in a large number of cases. The latest case in which the question was very exhaustively considered by a Full Bench of the Calcutta High Court is the case of The King Emperor Vs. Barendra Kumar Ghose, . In that case all the previous cases dealing on the point were very exhaustively considered and it was held that the question whether a particular criminal act may be properly held to have been "done by several persons" within the meaning of the section cannot be answered regardless of the facts of the case. In order to convict a person for an offence with the aid of the provisions of Section 34 of the Penal Code it is not necessary that that person should actually with his own hand commit the criminal act. If several persons have the common intention of doing a particular criminal act and if in furtherance of that common intention all of them join together and aid or abet each other in the commission of the act then although one of these persons may not actually with his own hand do the act, if he helps by his presence or by other acts in the commission of the act, he would be held to have done that act within the meaning of Section 34.

Reliance has been placed by the learned Counsel for the appellants upon the case of Strughan Patar v. Emperor AIR 1919 Pat 111. The facts of that case however have no application to the present ease. It was distinctly found in that case that the appellant Strughan had no intention to kill Upendra Mahto and that he did not assist the actual murderers in any way to accomplish their object. In the absence of any evidence of common intention there could be no conviction u/s 302 of the appellant Strughan of murder read with Section 34, I.P.C. In the present case upon the evidence there can be no doubt that both Jugal and Harihar Singh had the common intention of assaulting Brahamdeo Singh and that Jugal was actually present and actively took part in the commission of the act by Harihar Singh. Upon the evidence in this case the conviction of Jugal Singh u/s 324 read with Section 33 is a proper conviction and there is no ground to interfere with his conviction or sentence either.

The result is that the conviction and sentence of both the appellants are confirmed and the appeal dismissed.