Lakhan Singh and Another vs State of M.P.

S.P. Khare, J.

Appellants Lakhan Singh and Kishore Singh have been convicted u/s 304, Part II, read with Section 34, IPC and each of them has been sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/-.

During the course of the hearing of this appeal, it has been pointed out that appellant Lakhan Singh has served out the sentence imposed upon him by the Trial Court and, therefore, his appeal has not been pressed. Even so, the evidence on record has been scanned by this Court. So far appellant Lakhan Singh is concerned, his conviction u/s 304, Part II, IPC is well founded. Subedar Singh (P.W. 11) is father of deceased Putai Singh. He is the only eye-witness who has supported the prosecution case. Subedar Singh (P.W. 11) is husband of the sister of the accused persons. The incident took place on 15-7-1992 in Village Madaiya. According to Subedar Singh (P.W. 11), accused Lakhan Singh dealt a knife blow on the abdomen of Putai Singh which was a serious injury and proved fatal. The evidence of three doctors and the post-mortem report clearly establish that Putai Singh died on account of the stab injury on his abdomen. The omentum had come out. Putai Singh died as a result of this injury.

So far as appellant Kishore Singh is concerned, it is an admitted fact that he did not cause any injury to deceased Putai Singh. According to the prosecution, accused Kishore Singh had exhorted his brother Lakhan Singh to cause injury to Putai Singh and he had also caught hold of Putai Singh and thereupon his brother Lakhan Singh brought a knife from his house and caused the fatal injury to Putai Singh. Ex. D-1 is the statement of Subedar Singh (P.W 11) which he had made to the police u/s 161, Cr.PC. This was the first version of Subedar Singh (P.W 11). In this statement, he has not said that accused Kishore Singh gave any exhortation to his brother Lakhan Singh. Therefore, the evidence of Subedar Singh (P.W 11) regarding ihe exhortation given by accused Kishore Singh is to be excluded as an afterthought. Even otherwise, on scrutiny of the evidence of Subedar Singh (P.W. 11), it is found that the words uttered by accused Kishore Singh do not amount to exhortation. Subedar Singh (P.W 11) has stated in para 5 that there was grappling between accused Kishore Singh and Putai Singh. Thereafter, accused Kishore Singh said to his brother Lakhan Singh whether he would see him being killed ? The words used by the witness are ^^fd''kksj flag us dgk fd D;k yk[ku flag ekjs Mkyks gks D;k-**

From this statement it does not follow that Kishore Singh asked his brother Lakhan Singh to cause any injury to Putai Singh. Further, in cross-examination in para 23, Subedar Singh (P.W. 11) has stated that there was grappling between his son Putai Singh and accused Kishore Singh. Accused Kishore Singh shouted and said whether he would allow him being killed by Putai Singh. It is admitted by this witness that his son Putai Singh was much stronger in body than Kishore Singh. The words used by this witness are as follows :--

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The statement of the witness also does not give a definite indication that accused Kishore Singh had exhorted his brother Lakhan Singh to cause the fatal injury to Putai Singh. The words uttered by accused Kishore Singh at that time can also be interpreted to mean that he called for the help of his brother as he was being pressed and over-powered by Putai Singh. In such a situation, accused Lakhan Singh brought a knife from his house and inflicted an injury on abdomen of Putai Singh. In the absence of exhortation by accused Kishore Singh, in view of statement of accused Kishore Singh u/s 313, Cr.PC and evidence of Subedar Singh (P.W. 11), it cannot be held that accused Kishore Singh exhorted his brother Lakhan Singh to cause the injury to Putai Singh by a knife. It was a spontaneous act of accused Lakhan Singh when he brought a knife and caused fatal injury to Putai Singh. It cannot be said that there had developed a common intention between Lakhan Singh and Kishore Singh to cause such an injury to Putai Singh. The knife blow was an act of Lakhan Singh and for this there was no prior meeting of minds between Lakhan Singh and Kishore Singh. There was no pre-concerted plan between the two brothers to cause any injury to Putai Singh by a knife on his abdomen and thereby bring an end to his life.

The Supreme Court has recently reiterated in Suresh and Another Vs. State of U.P., that Section 34, IPC recognises the principle of vicarious liability in 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 common-sense 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. A common intention presupposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such 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 the spur of the 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.

Deceased Putai Singh and accused Kishore Singh were grappling with each other and Putai Singh was proving more powerful. In that situation if Lakhan Singh caused the injury to Putai Singh, it was an individual act of Lakhan Singh and for his act accused Kishore Singh cannot be held liable.

In the result, the appeal of Kishore Singh is allowed. His conviction and sentence are set aside and he is acquitted of the charge u/s 304, Part II, read with Section 34, IPC.