Om Parkash vs State of Haryana

S. D. Bajaj, J.

Bijender Singh son of Hoshiar Singh and Om Parkash son of Banwari, both residents of village Chhudani, are married in village Hiran Kudna. Smt. Bala wife of Om Parkash defamed Bijender Singh before his inlaws. When he went there to inlaws of Bijender Singh apprised him of it. On return to village Chhudani, after meeting his in laws in village Hiran Kunda Bijender, Singh went to the house of Om Parkash and reprimanded his wife named Smt. Bala for talking ill of him in the house of his inlaws and said that she was herself bad.

On the following day around 6.30 A.m. on 3rd January 1987 Om Parkash son of Banwari and his brother Jai Parkash both armed with a jaily each and their other two coaccused in Jaidev and Sombir both armed with a lathi each went to the house of Hoshiar Singh in search of his son Bijender Singh aforesaid. Not finding him at the house, all the four accused duly armed as aforesaid proceeded towards village pond whereto he (Bijender Singh) was reported to them to have gone to ease himself. Seeing Bijender Singhreturning from the village pond, the four assailants took up positions at the end of the street and waited for his arrival back after easing himself at the pond.

Anxious father of Bijender Singh in Hoshiar Singh (now deceased) and his two brothers in Rajinder Singh and Vijender are also alleged to have thereafter proceeded in the direction of accusedappellants to warn Bijender Singh, allegedly returning from the pond after easing himself, of the danger at the hands of duly armed assailants in accusedappellants. When they reached near them at the end of the street. Om Parkash gave a jaily blow to Hoshiar Singh on the left side of his head, Jai Parkash thereafter gave jaily blow to Hoshiar Singh wielding the jaily lathiwise which hit him (Hoshiar Singh) over the left eyebrow. Jai Dev gave Hoshiar Singh a lathi blow on the right side of his head. Sombir gave Hoshiar Singh a lathi blow on his left elbow, Jai Parkash wielding his jaily lathiwise gave Hoshiar Singh a blow therewith on his left wrist joint and thereafter inflicted on him another jaily blow on the right side of his foot below the knee. Hoshiar Singh then fell down on the ground after sustaining the injuries aforesaid.

Rajinder Singh and Vijinder Singh, two sons of Hoshiar Singh, who tried to intervene also sustained injuries at the hands of the accused party and are alleged to have inflicted injuries upon them as well. Original victim of the accused party in Bijender Singh is also alleged to have arrived at the place of occurrence presumably when both the rival groups aforesaid had exhausted themselves and, therefore, remained unhurt.

The rival version set up by the assailants accused party in their D.D.R. No. 12 got recorded by Om Parkash in Police Station Bahadurgarh around 11.20 A.M. on 3rd January, 1987 Exhibit DB is that houses of rival parties are opposite to each other opening in the street, that around 9.30 P.M. on the previous night Bijinder Singh had come to the house of Om Parkash and abused his wife Raj Bala for her having talked ill of him to his parentsinlaw in village Hiran Kudna. Om Parkash in turn protested about it to Hoshiar Singh father of Bijender Singh initially around 11.00 P.M. at night time and thereafter again early morning on 3rd January, 1987 when Bijender Singh is alleged to have hurled abuses on Om Parkash for his unseemly behaviour in lodging the protest with his father Hoshiar Singh.

Thereafter Bijender Singh is alleged to have brought a lathi from his house and gave a blow with it on the left arm and head of Om Parkash. Two brothers of Bijender Singh named Rajinder Singh and Vijinder Singh am alleged to have come to the place of occurrence carrying lathis. Jai Dev and Jai Parkash came to the rescue of Om Parkash. The newcomers on the side of victims named Rajinder Singh and Vijinder Singh are alleged to have given a lathi blow on the head of Jai Dev, Rajinder Singh gave a lathi blow to Om Parkash on the wrist of his right hand. Rajinder Singh then gave a lathi blow on the head of Jai Parkash and thereafter another lathi blow on the left hand of Om Parkash whereafter the two parties are alleged to have been separated by many people who had collected by then at the place of occurrence.

It would appear that in the rival version obtaining in Exhibit DB the place of occurrence is shifted from end of the street to the frontage of house of rival parties in the street and them is no explanation for the injuries sustained by Hoshiar Singh nor is his presence at the time of alleged quarrel/fight mentioned therein. Disbelieving the version in Exhibit DB, learned trial Court in its impugned judgment dated 7th November, 1987 held that accused party had opened the attack and were the aggressors while the complainant party had acted in self defence. Pursuant to the categorical finding aforesaid, accused Om Parkash was convicted under sections 302, 323 and 323/34 and the remaining three accused in Jai Parkash, Jai Dev and Som Bir were convicted under sections 302/34 and 323/34 of the Indian Penal Code. Jai Dev and Som Bir were also individually held guilty of the commission of the offence under section 323 of the Indian Penal Code as well. For his convictions aforesaid accused Om Parkash was awarded life imprisonment and fined Rs. 200/ under section 302 of the Indian Penal Code. In default of payment of fine Om Parkash was ordered to undergo rigorous imprisonment for a further period of three months. For his convictions under sections 323 and 323/34 of the Indian Penal Code Om Parkash was awarded rigorous imprisonment for a period of six months each on both these counts separately

Similarly coaccused Jai Dev and Som Bir were also awarded imprisonment for life and fined Rs. 200/ each for their conviction under section 302/34 of the Indian Penal Code. In default of payment of fine both of them had individually to undergo rigorous imprisonment for a period of three months each. In respect of their convictions under sections 323 and 323/34 they were awarded rigorous imprisonment for a period of six months each separately on both the counts aforesaid.

Fourth accused Jai Parkash was also awarded life imprisonment and fined Rs. 200/ for his conviction under section 302 of the Indian Penal Code. In default of payment of fine he was also ordered to undergo rigorous imprisonment for a further period of three months. For his conviction under section 323/34 of the Indian Penal Code accused Jai Parkash was also ordered to undergo rigorous imprisonment for a period of six months. All the substantive sentences of imprisonment awarded to all the four accused were however, ordered to run concurrently.

Feeling aggrieved from the impugned judgment dated 7th November, 1987 of the learned trial court, all thefour accused have filed Criminal Appeal No. 621 DB of 1987 in this Court.

We have heard Shri P.S. Mann, Senior Advocate, with Sarv shri T.P.S. Mann and Harinder Pal Singh, Advocate, for the appellants, Shri Ram Avtar Singh, Additional Advocate, General, Haryana, for the State and have carefully gone through the evidence on record.

Basic assertion made on behalf of the accusedappellants is that they acted only in selfdefence of their persons, had notopened the attack and were not the aggressors as held by the learned trial court in its impugned judgment dated 7th November, 1987. The assertion is wholly without substance. In their version aforesaid as disclosed in Exhibit DB they shifted the place of occurrence from end of the street to the frontage of the houses of rival parties in the street, do not allege the presence of Hoshiar Singh (now deceased) at the time of occurrence not explain the injuries sustained by him at their hands. All this renders the assertion made by accusedappellants in this behalf as wholly incredible.

Secondly it was asserted that common intention attributed to the accused appellants was of teaching Bijender Singh a lesson for his misdeed in calling Smt. Bala wife of Om Parkash as had and not to kill Hoshiar Singh his father now deceased. In this view of the matter it has been asserted that accusedappellants Jai Dev, Sombir and Jai Parkash should be acquitted of the charge under section 302/34 of the Indian Penal Code. There is, however, no merit in this argument as well because all the four accused went together from their houses duly armed with jailies and lathies, carrying their respective weapons of offence from their houses, initially to the house of Bijender Singh and not finding him therein, collectively marched towards, the village pond and then took up positions at the end of the street to wait for his return fully prepared to open the attack. It was on the sudden appearance of Hoshiar Singh (now deceased) with his two sonsin Rajinger and Vijinder at the place of occurrence to warn Bijender of the fury of assailants in the course of his return from the village pond, after easing himself which made the accusedappeallant change their target from Bijender Singh to his father Hoshiar Singh (now deceased) and his two sons accompanying him at the relevant time named Rajinder Singh & Vijinder Singh. By force of circumstances, the victims only got changed while premeditation, anger, fury, vigour and the common intention all remained intact. There is thus no valid reason for absolving the remaining three accusedappellants besides Om Parkash of the charge under section 302 read with section 34 of the Indian Penal Code as well.

Common intention could even develop on the spot in the course of the offence by the appellants. The principle which section 34 of the Indian Penal Code embodies is participation in action with common intention of committing a crime. Once such participation is established section 34 is at once attracted. All the four persons in accused appellants are proved to have come duly armed with jailies and lathis and all of them had agreed to use their weapons of offence in case they were thwarted. All of them are, therefore, clearly guilty because they used violence in pursuance of their common intention. It is not necessary to adduce direct evidence of common intention; which has necessarily to be inferred from the surrounding circumstances and the conduct of the parties.

It was held by the Privy Council in Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 and by the Supreme Court in Wazir Singh v. State of Punjab, AIR 1956 SC 754, "When all the bandits are armed with revolvers, and one of them killed the passerby, all are guilty under sec. 302 read with section 34 of IPC. When two persons shot at `P'' but by mistake they caused death of another person both are equally guilty under section 302 of IPC as both shared common intention of murdering P." In this view of the matter killing of Hoshiar Singh instead of their original victim Bijender Singh does not absolve accusedappellants of their common intention: more so when they came together fully armed from their houses, carrying their respective weapons of offence with them and used violence to kill Hoshiar Singh in pursuance of their common intention.

For the reasons given above, Criminal Appeal filed by accused appellant gets wholly bereft of any merit therein and is consequently dismissed.