Udham Singh S/O Preetam Singh And Another vs State Of Madhya Pradesh

The appellants have filed this appeal against the judgment dated 18.12.2007, passed by the Additional Sessions Judge, Satna in S.T. No.93/2006,

whereby the appellant No.1 has been found guilty for the offence punishable under Section 302 of IPC and has been sentenced to life imprisonment

and fine of Rs.5000/-, in case of default rigorous imprisonment for six months and the appellant No.2 has been found guilty for the offence

punishable under Section 302/34 of IPC and has been sentenced to life imprisonment and fine of Rs.5000/-, in case of default rigorous imprisonment

for six months.

The prosecution story, in brief, is that on the date of incident i.e., 14.01.2006 complainant Sampat Lal Patel, his father deceased Hetram,

Baladeen were in the field, his brother was also in the field. At around 5 o'clock there was a quarrel between the deceased and accused Udham Singh

on a land dispute. Thereafter, Udham Singh called Ram Singh and accused persons had beaten the deceased. It is alleged that appellant Udham Singh

inflicted two blows of farsa on the person of the body of the deceased. The wife of the appellant another co-accused and appellant Chandabai was

also there. She had a lathi with her and she had also beaten the complainant party. When the deceased was taken to the hospital in a tractor, he was

died on the way. A report of the incident was lodged at the police station. Police registered FIR and filed charge-sheet. Six persons were prosecuted

by the police before the trial Court. The accused persons abjured their guilt and pleaded innocence.

The trial Court acquitted four out of the six accused persons and convicted appellants No.1 Udham Singh and No.2 Chandabai for commission of

offence punishable under Section 302 of IPC and Section 302/34 of IPC respectively.

Learned counsel for the appellants has submitted that there was a quarrel between the complainant party and the accused persons. The

complainant party was aggressor and in exercise of their private defence the act was committed, hence the trial Court has committed an error in

convicting the present appellants for commission of offence of murder. In alternate, the learned counsel further submitted that both the appellants

also received injuries in the same incident. They lodged FIR at the police station. They were examined by the doctor. The trial Court also observed

that there was a quarrel between the parties and in that event the incident had happened. In that circumstances, both the appellants would be liable for

their individual act. It is alleged that appellant Udham Singh had caused blow by farsa, hence the offence committed by appellant Udham Singh would

be covered under Exception (4) of Section 300 of the IPC and he would be liable to be convicted for commission of offence punishable under Section

304 Part-I of the IPC. The another appellant Chandabai is liable to be convicted for her individual act because other injured persons of the

complainant party have suffered simple injuries. Hence appellant Chandabai would be liable to be convicted for commission of offence punishable

under Section 324 of the IPC.

Learned Government Advocate for the respondent/State has submitted that both the appellants have participated in the crime. The appellant

Udham Singh had inflicted blow by farsa on vital part of the body of the deceased. There was common intention, hence, the trial Court has rightly

convicted the appellants for commission of offence punishable under Section 302 of the IPC with the aid of Section 34 of the IPC.

It is not necessary to mention the acts of the other persons because they have been acquitted and the State has not filed any appeal against their

acquittal.

Kashiram (PW-3), who is the son of the deceased, is the injured eye-witness. He deposed that on 14.01.2006 at around 5 o'clock in the evening I

was present adjacent to the field of the place of the incident. My father Hetram and Baladeen came on the field. There was some verbal altercation

and quarrel with Udham Singh. Thereafter, Udham Singh shouted and he had called his family members. When I reached on the spot I had seen that

the accused persons were beating my father. Udham Singh had a farsa and he had inflicted a blow on the head of my father. Chandabai had a danda,

she had inflicted a blow on the back side of my father. After some time, Sampat also came there. Santosh inflicted a blow of axe on my head.

Chandabai inflicted blow of lathi at me. We tried to pacify the accused persons. They had also beaten us. When we were taking the deceased my

father to the police station in a trolley fitted with a tractor he died on the way. The police prepared naksha panchnama (Ex.P-11) and I signed the

same.

Kashiram (PW-3) is also the eye-witness. He deposed the same facts as deposed by Baladeen (PW-2) that there was a quarrel between

Hetram and Udham Singh. Thereafter, Udham Singh called other persons and he had inflicted blow on the head of the deceased. Kashiram (PW-3) is

also the son of the deceased. Chandabai armed with danda. She had inflicted a blow on the back side of the deceased and other persons had also

beaten us and when we were taking the deceased to the police station he was died on the way.

Ramsujan (PW-5) is another eye-witness. He deposed that on the date of the incident I was at my field at that time Hetram told to remove a pipe.

Udham Singh abused Hetram and he told that he would not remove the pipe and on this question there was a quarrel and hot talks between them.

Thereafter, Udham Singh called other persons of his family members and he had inflicted blow on the deceased by farsa. Chandabai was armed with

danda.

Sampat Lal Patel (PW-6) is also the eyewitness. He also deposed the same facts that there was a quarrel between Udham Singh and deceased

Hetram and thereafter other persons came and Udham Singh inflicted blow a farsa on the person of the deceased.

Dr. Kamlesh Prasad Gupta (PW-9) deposed that on 15.01.2006 I was posted at Primary Health Centre, Sabhaganj and I examined Sampat Lal

Patel on the aforesaid date and noticed following injuries:-

(1) Swelling and tenderness on the right shoulder, size 10 cm X 8 cm

(2) Swelling and tenderness on the head in middle part 3 x 2 cm

(3) Abrasion on the right wrist size 2 x 1 cm

Opinion:Â Simple injury by hard and blunt object.

He further deposed that on the same date I also examined Kashiram Patel and noticed following injuries on his person:-

 (1) Left side of scalp injury by sharp object size 3 x 2 cm with clotted blood present.

 (2) Swelling with redness on left side of shoulder size 5 x 6 cm

Simple injury both (1) sharp cutting object    (2) hard and blunt object .

He further deposed that I performed autopsy of deceased Hetram and noticed following injuries on his person:-

(1) Incised wound on the head size 10 x 2 x 3 cm, just above forehead with clotted blood present by sharp cutting object.

(2) Incised wound 3 x 2 x 2 cm adjacent to injury No.1 by sharp cutting object with clotted blood.Â

Frontal skull bone fractured,  contusion present in brain matter, membrane damaged, eyes closed, pupil dilated, bleeding from right nostril due to

vein damaged from brain. Rigor mortis present. Internal genitalia normal.

In my opinion the deceased was died due to the injuries caused to him. Both the injuries were antemortem in nature and they could be caused by axe

or farsa.

He further deposed that on the same day I also examined Smt. Sukhmantibai wife of Ram Singh Gond, one of the accused, who has been acquitted by

the trial Court and noticed following injuries on her person:-

(1) Abrasion on left elbow size 2 x 2 cm.

(2) Swelling on left side, upper part of neck 3 x 2 cm

(3) Lacerated wound on the right upper part of buttock size 3 x 2 cm and left buttock. Swelling in upper part.

All the injuries were simple in nature and were caused by hard and blunt object.

He further deposed that I also examined Santosh Singh Gond who was tried by the Juvenile Court and noticed following injuries on his person:-

 (1) Abrasion on the left palm size 3 x 2 cm

Simple injury on the left forearm caused by hard and blunt object.

He further deposed that on the same day I examined appellant Udham Singh and noticed

following injuries on his person:-

(1) Abrasion on the right side of forehead neareyebrow size 2 x 1 cm.

(2) Swelling and tenderness on the right forearm upper part size 5 x 2 cm

Simple Injuries caused by hard and blunt object within 24 hours.

It is not necessary to consider other evidence on record because from the evidence of injured eye-witnesses, this fact has been established that

there was a quarrel between the appellants and deceased in regard to land and the reason of the quarrel was of some land dispute. In that quarrel, the

appellant had inflicted two blows on the head of the person of the deceased. It is alleged that the appellant Chandabai is also inflicted blow on the back

side of the deceased by lathi, however the doctor (PW-9), who performed postmortem of the deceased, did not mention the fact that he noticed any

injury on the person of the body of the deceased of lacerated wound. He deposed that he noticed incised injuries on the person of the deceased on

head, hence the evidence in regard to Chandabai is not reliable because the medical evidence completely rule out ocular evidence to the effect that the

accused Chandabai had caused any injury by lathi on the person of the body of the deceased.

Apart from this, from the evidence of doctor (PW-9) this fact has been established that from the side of accused persons three persons including

appellant Udham Singh received simple injuries, therefore, it is clear that there was a fight between the accused party and the complainant party and

in that fight both the parties received injuries, hence, in our opinion, the accused persons are liable for their individual acts. The appellant Chandabai

could not be convicted with the aid of Section 34 of the IPC as held by the Hon'ble Apex Court in regard to Section 34 of the IPC in the case of

Vijendra Singh vs. State of Uttar Pradesh and Mahendra Singh vs. State of Uttar Pradesh reported in (2017) 11 SCC 129:

“21. In the said case, the Court after analysing the evidence opined that there is no material from the side of the prosecution to show that the

appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to

associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of

Section 34 IPC.

In this regard, we may usefully refer to a passage from the authority in Pandurang v. State of Hyderabad, AIR 1955 SC 216. The three-Judge

Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that: (AIR p.222, paras 32-33)

“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been

done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor, AIR 1945 PC 118. Accordingly there must have been a prior

meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can

individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of

minds to form a prearranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously

convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the

murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1 and Mahbub Shah

v. King Emperor (supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the

distinction is real and substantial, and if overlooked will result in miscarriage of justiceâ€​.

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls

on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.

There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement

there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other,

e.g., the intention to rescue another and, if necessary, to kill those who oppose.â€​

And, again: in Pandurang's case(supra), AIR page 222 para 34-

“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this

class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent

to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances

which necessarily lead to that inference, or, as we prefer to put it in the timehonoured way, “the incriminating facts must be incompatible with the

innocence of the accused and incapable of explanation on any other reasonable hypothesisâ€​. (Sarkar’s Evidence, 8th Edn., p. 30).â€​

In this context, we may refer withprofit to the statement of law as expounded by the Constitution Bench in Mohan Singh v. State of Punjab, AIR

1963 SC 174. In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a

criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if

it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the

existence of common intention. The common intention in question animates the accused persons and if the said common intention leads to commission

of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The

larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of

persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the

same common intention is one of the features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The

common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly.

Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of

minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused

persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. Thereafter, the Court held

(Mohan Singh's case (supra), AIR p.181, para 13):-

“13. … It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has

been observed by the Privy Council in Mahbub Shah v. KingEmperor (supra) common intention within the meaning of Section 34 implies a pre-

arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to

the pre-arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the

circumstances of the case.â€​

In Harshadsingh PahelvansinghThakore, (1976) 4 SCC 640, a threeJudge Bench, while dealing with constructive liability under Section 34 IPC has

ruled thus (p.643 para 7):-

“7. … Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.,

(1975) 4 SCC 247; Maina Singh v. State of Rajasthan, (1976) 2 SCC 827. Lord Sumner’s classic legal shorthand for constructive criminal liability,

expressed in the Miltonic verse “They also serve who only stand and wait†a fortiori embraces cases of common intent instantly formed,

triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood.

Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or

jettison the plain punitive purpose of the Penal Code.â€​

In Lallan Rai and Ors. v. State of Bihar, (2003) 1 SCC 268 the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has

ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular

result.

In Goudappa v. State of Karnataka, (2013) 3 SCC 675 the Court has reiterated the principle by opining that Section 34 IPC lays down a principle

of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the

question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime

has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was

committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion

whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken

into consideration.

The aforesaid authorities make itabsolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of

common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases

cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common

intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained

from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of

persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein

have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can

be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See : Kirpal and Bhopal v.

State of U.P., AIR 1954 SC 706). In Bharwad Mepa Dana v. State of Bombay, AIR 1960 SC 289, it has been held that Section 34 IPC is intended to

meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all

or to prove exactly what part was taken by each of them. The principle which the Section embodies is participation in some action with the common

intention of committing a crime; once such participation is established, Section 34 is at once attracted.â€​

Hon'ble Apex Court in the case of Arjun and another vs. State of Chhattisgarh reported in (2017) 3 SCC 247 has held as under that whether the

offence is murder or culpable homicide, which would fall under Section 304 Part I of IPC:

“19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the

evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in

altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view,

falls under exception (4) of Section 300 IPC.

To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of

Chandigarh (1989) 2 SCC 217, it has been explained as under:-

“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was

done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not

relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive

factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of

course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the

moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided

he has not acted cruelly.â€​

Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of

law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-

“9. ……. “18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the

offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring

a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section

300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to

cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat

between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a

sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the

application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that

the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision

means ‘unfair advantage’.â€​

The accused, as per the version ofPW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that

have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation.

Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage†or acted in a cruel manner.

Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are

entitled to the benefit under Section 300 exception (4) IPC.

Now, the next question is what offence both the appellants have committed.

In the present case, as per the evidence of doctor (PW-9), there were two injuries on the person of the body of the deceased. There was a sudden

quarrel, there was no pre-meditation. The incident had occurred all of sudden, in spur of moment and appellant Udham Singh had not taken any undue

advantage in view of the injuries on the person of the deceased. Hence, in our opinion, the offence committed by appellant Udham Singh would fall

under Section 304 Part-I of the IPC. In regard to the offence committed by appellant Chandabai, it is alleged that Chandabai armed with lathi, she had

inflicted blow by lathi to the injured person and all injured persons as per the evidence of doctor (PW-9) received simple injuries, hence, the appellant

Chandabai is liable to be convicted for commission of offence punishable under Section 324 of the IPC. She remained in jail for 10 months, hence, she

is awarded for the jail sentence as already undergone. Appellant Udham Singh is in jail for last 12 years because he is in jail since 15.01.2006, hence,

appellant Udham Singh is awarded the jail sentence as already undergone.

The appeal filed by both the appellants is party allowed. The conviction and sentence awarded by the trial Court is hereby set aside. Appellant

No.1 Udham Singh is convicted for commission of offence punishable under Section 304 Part-I of the IPC. He is awarded jail sentence as already

undergone. He is in jail. He be released forthwith if he is not required in any other case. Appellant No.2 Chandabai is convicted for commission of

offence punishable under Section 324 of the IPC. She is awarded jail sentence as already undergone. She is on bail. Her bail bonds are hereby

discharged.