Ram Pratap and Another vs State of U.P.

This appeal, arising out of judgment dated 28.07.1982, has been preferred by the two appellants Ram Pratap and Kishuni, who are presently lodged in Naini jail, Allahabad by virtue of Court''s order dated 08.05.2007. Inability of the two appellants to engage a counsel, had persuaded us to request Sri Ajay Kumar Pandey, advocate to assist us on behalf of the above appellants as Amicus Curie.

By the impugned judgment, the above two appellants, alongwith appellants of Criminal Appeal No. 1913 of 1982, were found guilty of committing offence u/s 302/34 I.P.C. and each of the convicts was directed to suffer rigorous imprisonment for life. The two appellants of Criminal Appeal No. 1913 of 1982 died during the pendency of the appeal and their appeal abated. The appellants preferred the present appeal separately to challenge their conviction and sentence passed upon each of them.

The facts of the case is contained in Ex.Ka.-3, which was presented by Ram Raj (P.W.1), who examined himself in the name of Raj during trial, in which he was stating that he alongwith his deceased brother Sawaniya and Mohan (P.W.-2), were coming from their fields after the works were over. When they had come to the orchard of one Moti Lodh, the four accused person emerged from behind the trees and came running to the informant and his companions and surrounded the deceased, Sawaniya. It was stated by the informant that deceased appellant Dhanai @ Dhanaiya remonstrated and ordered that the deceased should be killed and himself fired from his regular gun. The deceased appellant Harpal was also said to have fired from his country-made gun at the deceased. As a result of receiving the two shots as per the F.I.R., the deceased fell down on the ground and died there. After killing the deceased, the accused persons ran away towards west on account of the cries raised by the informant, which attracted witnesses.

As regards the motive for commission of the offence, it was stated that one Nanku, who had some immovable properties in the village, was murdered by the appellant Dhanai @ Dhanaiya and a case was registered in respect of that murder which went to trial. It was stated that the deceased Sawaniya was making efforts on behalf of the widow of Nanku to prosecute the accused persons and after the death of Nanku his agricultural lands were being tilled by the informant and his deceased brother Sawaniya on share-cropping-basis. The two appellants Dhanai @ Dhanaiya and Harpal, as per allegation, were pressurising the deceased and the informant to give up the tilling of land and also to stop prosecuting them in the case which was in trial before any particular Court. The deceased was refusing to yield to the pressure of the accused persons and that had caused annoyance and that annoyance ultimately resulted in the present occurrence.

After case being registered, the investigation was taken up, during which course the place of occurrence were inspected by P.W. 4, Lal Singh Chandel, sub-inspector of police in the concerned police station and he held inquest on the dead body which was lying at the very site of the occurrence and sent the same through constable Devi Din (P.W.-5) for post mortem examination.

Dr. J.S. Roy (P.W.-3) had conducted autopsy on the dead body of the deceased, Sawaniya and had submitted the report, Ex.Ka.-2. It is revealed by the evidence of P.W.-3 that there was only one gun shot injury, which had hit the deceased in his head causing a wound of entry measuring 1" x 1" x brain cavity deep on the left side of skull below left ear 1" away from it. The margin of the wound was inverted and lacerated. Blackening and tattooing were also present around the wound. The other wound of exit, was located on the right side of skull 1.5" above the right ear which was measuring 1.5" x 1�" x brain cavity deep. Margin of the wound was everted and the direction of the wound was left to right and slightly upward and forward. In the opinion of P.W.-3, injuries no. 1 and 2 were communicating to each other and could be caused by a single gun shot and, further that, that particular wound was sufficient in the ordinary course of nature to cause death. Dr. J.S. Roy (P.W.-3), had found a lacerated wound also which was measuring 0.5" x � " x scalp deep situated in back and middle of head. In the opinion of the Doctor, injury no. 3 might have been caused by some hard and blunt substance and might also have been caused on account of fall of the deceased on some hard, soil surface.

S.I. Lal Singh Chandel (P.W.-4) recorded the statements of witnesses and finding material sufficient, sent the accused persons to trial.

We have already noted that the two assailants of the deceased, namely, Dhanai @ Dhanaiya and Harpal are now dead and as such the appeal preferred by them bearing no. 1913 of the year 1982, stood abated. Keeping this aspect in his mind, the learned Amicus Curie addressed us only on the limited point of applying principles of vicarious liability arising out of the provision of Section 34 I.P.C. in sustaining the conviction of two appellants Ram Pratap and Kishuni. In that connection we are taken through the evidence of P.Ws. 1 and 2 and it was submitted that whereas P.W.-1 was giving the evidence that the four accused persons emerged from the ditch of the canal and that they were running to the deceased to surround him which evidence was completely lacking as regards the running of the accused person and surrounding the deceased by them, when we considered the evidence of P.W.-2, it was submitted that sharing of common intent could be gathered from objective facts which may appear through the evidence of witnesses and merely being the part of a band of persons without committing any overtact, may not be sufficient to indicate acting in furtherance of common intention, which might have been shared by some of the members of the group, which might have remained shared by some other of the band of persons.

We considered the submission of the learned Amicus Curie, in the light of the evidence. It is true that intent is the mental state of an accused and it could be very difficult for any Court to find positive facts coming through the witnesses, which may indicate that the accused persons had really shared the common intention to do a particular act and in furtherance of that sharing of common intention any of them or some of them had committed any overtact. But, the evidence, if scanned properly, may also give some picture as to whether an inference could properly be raised about the sharing of the common intent and acting in furtherance thereof. The inference may arise out of utterances the accused persons are said to have made or some other actions indicating the bent of mind as regards the facts or acts constituting the offence. It may also be a position that even if initially the band of persons had shared the common intention, some of them might have changed their intent and might have backed out of that particular mental state and ought not have acted in furtherance thereof. Keeping these in our minds, we considered the evidence of P.Ws.-1 and 2. P.W.-1 had stated that the four accused persons emerged from the ditch of the canal and ran towards him and his brother, and finally, surrounded his brother where after two accused, namely, Dhanai @ Dhanaiya and Harpal fired the shots after appellant Dhanai @ Dhanaiya remonstrated to kill him. It is true that P.W.-1 was stating that two appellants were also running and surrounding the deceased, but when we considered the evidence of P.W.-2, we found that there is no such statement of P.W.-2 that Ram Pratap and Kishuni either ran upto the deceased or surrounded him. The evidence of P.W.-2, rather, pointed out that all the four appellants remained static at the place where they rose from the ditch and two shots were fired by the appellant Dhanai @ Dhanaiya and Harpal. Thus, in the event of no support to P.W.-1 from P.W.-2, we have some doubt about the sharing of common intention by appellants Ram Pratap and Kishuni. The facts of the case presented through the evidence of P.Ws. 1 and 2 indicated to us as if there might have not been sharing of common intention by the two appellants Ram Pratap and Kishuni with that of deceased appellants Dhanai @ Dhanaiya and Harpal.

In the above view of the matter, we find that the conviction of Ram Pratap and Kishuni was not proper by virtue of invoking the doctorin of vicarious liability u/s 34 of the I.P.C. It was a case, in which the two appellants Ram Pratap and Kishuni should have been acquitted after being given the benefit of doubt. We accordingly acquitted the two appellants, namely, Ram Pratap and Kishuni of the charge they had been found guilty of and punished thereafter, by allowing the present appeal. The two appellants are in custody, being presently lodged in Naini Jail, Allahabad. They are directed to be released forthwith, if not wanted in any other case.

We record our sincere appreciation of the assistant which was rendered by Sri Ajay Kumar Pandey, the learned Amicus Curie and we wish that he be paid one fee of hearing by the High Court Legal Services Committee.