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Judgment
Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 11th of August 1993, passed in Sessions Trial No. 27/92 by the First Additional Sessions Judge, Raigarh. By the impugned judgment appellant No. 1-Shambhoo has been convicted u/s. 302 IPC and sentenced to undergo R.I. for life & fine of Rs. 5,000/- in default R.I. for 1 year, and appellants 2 & 3 (Ramswaroop & Savitri Devi) have been convicted u/s. 302/34 IPC & have also been sentenced as appellant No. 1.
Appellant No. 3-Savitri Devi died during the pendency of the appeal. Therefore, appeal filed on behalf of appellant No. 3 stands abated.
The facts, briefly stated, are as under:-
Appellant No. 1 is son of appellants 2 & 3. Deceased-Shyamsunder was son of Sagarmal (PW-6), who is real brother of appellant No. 2. The incident took place on 7-11-91, which was the 3rd day after Deepawali Festival. The case of the prosecution is that accused/ appellant No. 1 Shambhoo, Tingu, Dablu, Pawan Kumar (PW-1) and Vikas (PW-2) etc. were gambling by playing cards in the house of appellant-Shambhoo which was rented to one Prem Prakash (PW-15). The said house is situated behind another house of the appellants in which they were residing. At about 10.30 p.m., deceased-Shyamsunder, Deepak Agrawal, Neeraj and Ganesh Kumar (PW-10) came their to call Pawan Kumar (PW-1) for taking the meals. Deceased-Shyamsunder said that they are gambling, therefore, he will report the matter to the police. On this, appellant-Shambhoo abused him by mother and sister, threatened him to life, and said him to go back. Deceased-Shyamsunder said that he is calling his father and he came to the gali in between the two houses. The allegations are that at that time, appellants 2 & 3 also came out from their house, appellant No. 2 caught hold deceased-Shyamsunder and appellant No. 3-Savitri Devi gave a gupti to appellant No. 1-Shambhoo, who gave single blow by gupti on the left abdominal region of the deceased. The deceased fell down. He was taken to the hospital, where he died after sometime. Pawan Kumar (PW-1) lodged the First Information Report (Ex.-P/1). The Investigating Officer reached to the hospital, gave notice to the Panchas and prepared inquest (Ex.-P/2) on the body of the deceased. The dead body was sent for post-mortem examination which was conducted by Dr. Sharad Awasthy (PW-5). The postmortem report is Ex.-P/4. He found one stitched wound of 11/2 inch on the left inguinal region. On internal examination, it was found that the left femoral vessels and internal iliac arteries of the corresponding side were also cut. Injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. Cause of death was profused haemorrhage resulting into shock.
Appellants 2 & 3 had also received injuries. They were also examined by the Doctor. Appellant No. 2-Ramswaroop had received one lacerated wound of 3 cm x 2 cm on the scalp, a lacerated bruise of 11/2 cm x 1 cm on the left palm and another lacerated bruise of 2 cm x 2 cm on the right knee. His injury report is Ex.-P/29. Appellant No. 3-Savitri Devi also received 2 bruises, which were simple in nature.
The learned Sessions Judge held that appellants 2 & 3 shared common intention with appellant No. 1, who caused the above injury to the deceased which proved fatal. Therefore, the appellants were liable for punishment as aforementioned. The learned Sessions Judge, in the facts and circumstances of the case that the deceased and his other associates had came to the house of the appellants unarmed and there was no positive evidence that they had attached over the appellants, rejected the plea of right of private defence.
Mr. S.K. Tiwari, learned counsel appearing on behalf of appellant No. 1, has contended that the case of appellant Mo. 1 does not fall within the ambit of Section 302 IPC and that the learned Sessions Judge erred in law in convicting appellant No. 1 u/s. 302 IPC. Mr. G.S. Ahluwalia, learned counsel appearing on behalf of appellant No. 2, argued that there was nothing on record to show that the other 2 appellants shared common intention with appellant No. 1, therefore, the conviction of appellants 2 & 3 with the aid of Section 34 I.P.C. was not possible.
On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.
We have heard the learned counsel for the parties at length and have also perused the records of the sessions case.
Firstly we shall examine the conviction of appellant No. 2 with the aid of Section 34 IPC.
Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. 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 minds 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 the moment; but it must necessarily be before the commission of the crime. To constitute common intention, it is necessary that intention of each one of the accused be known to the rest and shared by them.
This is what the Supreme Court said on many occasions while interpreting the provisions of Section 34 IPC. Therefore, the acts may be different in character, but it should be proved that they must have been actuated by one and the same common intention in order to attract the provisions of Section 34 IPC.
In case on hand, the F.I.R. (Ex.-P/1) was lodged by Pawan Kumar (PW-1) who was an eye-witness. The F.I.R. is the first hand information of the incident. In the F.I.R., Pawan Kumar stated that when they were coming out from the second house of the appellants, appellant No. 2-Ramswaroop and his wife (appellant No. 3. Savitri Devi) also came out from their house (another house) and they started saying unwanted words for his father, and appellant No. 2-Ramswaroop caught deceased-Shyamsunder. It is after that appellant No. 3-Savitri Devi gave gupti to his son-appellant No. 1-Shambhoo and said to kill the deceased on which appellant No. 1 gave gupti blow on the abdomen of the deceased. It is an admitted position that appellant No. 1 was throughout with the persons who were gambling in his second house and he was not in contact with the other appellants before the commission of the crime. Even, according to the F.I.R. it does not come that when appellant No. 2 caught the deceased, appellant No. 3 was already holding the gupti and she handed over it to appellant No. 1. Therefore, it doesn''t appear that there was a plan or meeting of minds of all the appellants, either pre-arranged or on the spur of the moment, to commit the alleged offence.
In Ramashish Yadav and Others Vs. State of Bihar, ome what in similar situation, the Supreme Court held that "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 prearranged 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 pre-arrangement or premeditated concert. This being the requirement of law for applicability of S. 34 IPC, from the mere fact that accused "RP" and "RY" came and caught hold of deceased, whereafter ''SY'' and ''SL'' came with gandasa (chopper) in their hands and gave blows by means of gandasa (chopper), it cannot be said that the accused "RP" and "RY" shared the common intention with accused "SY" and "SL". Consequently, accused "RP" and "RY" cannot be held guilty of the charge under S. 302/34, IPC but accused "SY" and "SL" did commit the offence under S. 302/34, having assaulted deceased on his head by means of gandasa (chopper) on account of which he died."
In the present case, as stated above, there was absolutely no evidence of existence of a pre-arranged plan or a prior concert. There was no evidence at all of prior meeting of minds, and in the facts and circumstances of the case, the conduct of appellant No. 2 would show that he never shared a common intention with appellant No. 1 for inflicting the subject injury to the deceased by appellant No. 1. Therefore, the conviction of appellant No. 2 with the aid of Section 34 IPC cannot be sustained.
Now we shall examine the case of appellant No. 1.
Mr. Tiwari has argued that the injury sustained by the deceased was not an injury intended by appellant No. 1. In Virsa Singh Vs. The State of Punjab, the Supreme Court held that if an injury is held to have been intended by the assailants and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause Thirdly of Section 300 of the IPC and that, therefore, its author would be liable to punishment u/s. 302 IPC. Therefore, the question would be whether the particular injury, which was found to be sufficient in the ordinary course of nature to cause death, in the present case, was in fact an injury intended by appellant No. 1 ? The solitary blow given by appellant No. 1 to the deceased was on the abdominal region which ultimately cut left femoral vessels and internal iliac arteries which were corresponding to said injury. Definitely appellant No. 1 must not be having knowledge or even an idea that his such blow is going to cut the above vessels or the arteries. The injury cutting the above vessels and the arteries by the single blow of appellant No. 1, which proved fatal, was non-intentional. We are supported in our views by the dicta of the Supreme Court in Harjinder Singh alias Jinda Vs. Delhi Administration, , Virsa Singh Vs. The State of Punjab, and Gokul Parashram Patil Vs. State of Maharashtra, , in which, the earlier two judgment have been taken note of.
It appears that when appellant No. 1 and other persons including the deceased came in the gali and deceased said to inform the police about the gambling and appellant No. 2 abused the deceased, a quarrel begun and appellant No. 1, on spur of the moment, gave single blow to the deceased which caused the above injury, which was not intended. Therefore, on the above principles, we are of the opinion that the conviction of appellant No. 1 u/s. 302 IPC cannot be sustained and in the above facts and circumstances of the case, in our considered view, appellant No. 1 would be liable for punishment u/s. 304 Part-II IPC. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to appellant No. 2 u/s. 302/34 IPC are set-aside. He is acquitted of the charges framed against him. The conviction and sentences awarded to appellant No. 1 u/s. 302 IPC are also set-aside. Instead thereof, appellant No. 1 is convicted u/s. 304 Part-II IPC and sentenced to the period already undergone, which comes about 4 years in this matter. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged.