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2014 DIGILAW 2131 (RAJ)

Totaram v. State of Rajasthan

2014-12-15

KANWALJIT SINGH AHLUWALIA, V.K.MATHUR

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Hon'ble MATHUR, J.—The learned Additional District and Sessions Judge (Fast Track) Laxmangarh, Alwar vide impugned judgment dated 28.04.2005 convicted the accused appellants Totaram and Bijender @ Paddu for offences punishable under Sections 302/34, 341 IPC and 4/25 Arms Act and sentenced each of them as under: Under Section 302/34 IPC : Life term imprisonment with a fine of Rs.1,000/-, in default of payment of fine to undergo further one month imprisonment. Under Section 341 IPC : One month simple imprisonment. Under Section 4/25 Arms Act : One year rigorous imprisonment with a fine of Rs.100/- each, in default of payment of fine to under further three days imprisonment. Facts 2. The brief facts of the case are that on 12.08.2003 Bishan Singh (PW-3) lodged a written report (Ex.P/3) at Police Station Govindgarh, District Alwar stating that in the evening at 4.30 p.m. his son Joginder Singh was returning from the railway station Govindgarh to his village Kharsanki since he missed the train for going to Alwar. The accused persons were standing in the village armed with Farsi, tachia, gandasa, kappa to kill his son. The accused appellants Paddu son of Jugliram, totaram had Farsi in their hands. The other accused persons Jugliram also had a Farsi in his hand, Rajveer had a gandasa, Dilip and a Tachia, Mahaveer had a Farsi, Sundri had a Farsi, Kamri had a gandasa in their hands. The accused persons gave Farsi, Kappa, tachia, gandasa blows on the neck of his son Joginder Singh resulting in cutting of his neck and Joginder Singh also received injuries by Farsi blow on his head resulting in his death on the spot. On hearing the commotion the family members came on the spot but the accused after killing his son ran away. Inder Singh, Pappu @ Jangir Singh, Mahendra Singh, Suchha Singh came on the spot. On the basis of the written report, an F.I.R. No. 66/2003 (Ex.P/4) under Section 147, 148, 149 and 302 IPC was registered on 12.08.2003 at 6.30 p.m. at Police Station, Govindgarh, District Alwar. 3. After completion of the investigation, a challan was filed against the accused appellants Totaram and Bijender @ Paddu and Mahaveer Singh. The case being triable by he Court of Sessions, the same was committed to Sessions Court from where it was transferred to Additional District and Sessions Judge (Fast Track), Laxmangarh, Alwar. 3. After completion of the investigation, a challan was filed against the accused appellants Totaram and Bijender @ Paddu and Mahaveer Singh. The case being triable by he Court of Sessions, the same was committed to Sessions Court from where it was transferred to Additional District and Sessions Judge (Fast Track), Laxmangarh, Alwar. The accused Mahaveer Singh being a juvenile on the date of incident, the proceedings were initiated against him before the Juvenile Court. 4. The learned trial court framed charges against the accused appellants Totaram and Brijendra @ Paddu under Section 302/34, 341 IPC and Section 4/25 Arms Act. The accused denied the charges and claimed for trial. 5. In support of its case the prosecution examined 20 witnesses and 31 documents were exhibited. The accused appellants were examined under Section 313 Cr.P.C. wherein it was stated that they were falsely implicated in this case and they are innocent. The accused appellants did not produce any defence evidence. The above two accused-appellants had filed this appeal for quashing and setting aside the conviction and sentence awarded by the trial Court. Contentions of the parties 6. The learned counsel for the accused appellants submitted that they have been falsely implicated in the case. The prosecution eye-witnesses Bishan Singh, Suchha Singh, Inder Singh, Puran Singh, Rajender Singh are not trustworthy and cannot be relied. The counsel further submitted that there was no intention to cause the death of Joginder Singh. The incident occurred in the heat of passion and loss of self-control. Therefore, it was submitted that the prosecution has grossly failed to prove its case beyond reasonable doubt and prayed that the accused be acquitted of the charges leveled against them. Alternatively, it was submitted that the case falls under Section 304 Part-I/34 IPC and the accused be sentenced to the period already undergone by them. 7. The learned counsel for the accused-appellants have failed on the judgments in the case of Budhi Singh vs. State of Himachal Pradesh (2012) 13 SCC 663 in which there was absence of premeditation or intention to kill, grave and sudden provocation resulting from deceased abusing father of deceased and appellant. The conviction of the appellant was altered from Section 302, 304 Part-I IPC. The conviction of the appellant was altered from Section 302, 304 Part-I IPC. In the case of Mangesh vs. State of Maharashtra (2011) 2 SCC 123 there was absence of intention to kill, there was no evidence that appellant had premeditated or pre-planned his actions, it was on the spur of the moment that the appellant took out a knife and stabbed deceased thrice. It was held that it is clear cut case of loss of self control and appellants caused injuries to deceased in the heat of passion and the conviction was altered from 302 and 304 Part-I IPC. In the case of Om Prakash vs. State of Rajasthan (1979 RCC 51) there was sudden quarrel in connection with illicit intimacy and deprivation of power of self control by reason of grave and sudden provocation and it was held to be a case of falling under Section 304 Part-I IPC. 8. On the other hand, the learned Public Prosecutor has supported the judgment of trial Court and submitted that the eye-witnesses Bishan Singh, Suchha Singh, Inder Singh, Puran Singh, Rajendra Singh have clearly stated that the accused appellants Totaram and Bijender had given a Farsi blow on the head and neck of Joginder Singh resulting in his death on the spot. It was further submitted that the accused appellants have common intention to cause death of Joginder Singh and there was no sudden and grave provocation. It was submitted hat the trial Court has rightly convicted the accused appellants and the appeal deserves to be dismissed. 9. We have carefully considered submissions made by the learned counsel for the parties and have carefully perused the evidence on record and the impugned judgment. Findings 10. In the present case, admittedly the prosecution rests on the evidence of Bishan Singh (PW-3), Suchha Singh (PW-4, Inder Singh (PW-10) who have been alleged to have witnesses the occurrence. 11. The prosecution witness Bishan Singh (PW-3) who is the complainant and had lodged the written report (Ex.P/3) has categorically stated that at about 10 a.m. on 12.08.2003 which was "Raksha Bandhan" day his son Joginder Singh had gone to the field. The accused persons Totaram, Mahaveer, Rajveer Jugli, Bijender @ Paddu, Sundri, Dilip, Kamri who had Farsi and kappa in their hands were running after his son Joginder Singh. Bishan Singh asked them why they were running after his son. The accused persons Totaram, Mahaveer, Rajveer Jugli, Bijender @ Paddu, Sundri, Dilip, Kamri who had Farsi and kappa in their hands were running after his son Joginder Singh. Bishan Singh asked them why they were running after his son. The accused replied hat they would kill him. Bishan Singh pacified them and the accused returned to the home. At about 1-2 p.m. the accused persons again came to his house to kill Joginder Singh. The family members pacified the accused persons who again went away. The family members told Bishan that the accused Totaram had said that their girl was in love with Joginder Singh and therefore, they will kill Joginder Singh. Bishan Singh told his son Joginder Singh who had come from Bombay 2-4 days before Rakhi to go to Alwar Joginder Singh left at 3 p.m. but since he missed the train, Joginder Singh was returning to his house at about 4.30 p.m. At that time, the accused persons Totaram, Bijender @ Paddu and other persons Sundri, Jugli, Mahaveer, Rajveer, Dilip, Kamri came their armed with Farsi, Kappa and encircled his son Joginder Singh near Gurudwara and thereafter Joginder Singh shouted for help. At that time, Bishan Singh and Pappu were cleaning the grass near Gurudwara and Suchha Singh was cutting grass in the nearby field. The accused-appellant Totaram gave a Farsi blow on the left forehead of Joginder Singh and again hit him by Farsi on his head. Joginder Singh fell down on he ground, when the accused Mahaveer gave a Farsi blow on the eye of Joginder Singh. Thereafter the accused appellant Paddu gave a Farsi blow on the neck of Joginder Singh and the accused Mahaveer gave a Farsi blow on the throat of Joginder Singh. Thereafter other persons attacked Joginder Singh. The accused after killing Joginder Singh left. Bishan Singh shouted and thereafter Rajendra, Puran, Inder Singh came on the spot. They took Joginder Singh who had died in a tractor to Govindgarh. Bishan Singh submitted a written report (Ex.P/3) at the police station on which FIR (Ex.P/4) was registered. 12. Thereafter other persons attacked Joginder Singh. The accused after killing Joginder Singh left. Bishan Singh shouted and thereafter Rajendra, Puran, Inder Singh came on the spot. They took Joginder Singh who had died in a tractor to Govindgarh. Bishan Singh submitted a written report (Ex.P/3) at the police station on which FIR (Ex.P/4) was registered. 12. The prosecution witness Suchha Singh (PW-4) has stated that on the date of incident on 12.08.2003 at about 4.30 p.m. he was at his field cutting grass when he saw the accused appellants Totaram, Bijender @ Paddu and the other persons Rajveer, Mahaveer, Jugliram, Sundri, Kamri, Dilip Singh who had Farsi and Kappa in their hands running after Joginder Singh. The accused-appellants Totaram gave a Farsi blow on the forehead of Joginder Singh and thereafter hit him with the Farsi blow on the head as a result of which Joginder Singh fell down. The accused appellant Bijender @ Paddu Singh gave a Farsi blow on the neck of Joginder Singh and thereafter Mahaveer gave a Farsi blow on the head of Joginder Singh and also gave a blow on the neck. The other accused also attacked Joginder Singh. The accused persons left the place after killing Joginder Singh. 13. The prosecution witness Inder Singh (PW-10) has reiterated the statements of Bishan Singh (PW-3) and Suchha Singh (PW-4) that the accused appellants Totaram gave a Farsi blow on the forehead of Joginder Singh and on his head who fell down thereafter the accused Bijender @ Paddu gave a Farsi blow on the neck of Joginder Singh and other accused persons who gave beating to Joginder Singh. 14. The prosecution witness Puran Singh (PW-12) has stated on the date of incident, when he heard and cry that Joginder Singh had been killed, he ran towards the house and saw the accused appellants Totaram and Paddu along with other persons running away. The accused appellants Totaram and Paddu had Farsi in their hands and other persons also had Farsi, kappa and Khuladi in their hands. This witness saw Joginder Singh lying on the road opposite the Gurudwara and blood was oozing out from the body of Joginder Singh. Bishan Singh, Suchha Singh and Pappu @ Jangir were present on the spot and then they took Joginder Singh in the tractor to Govindgarh. This witness saw Joginder Singh lying on the road opposite the Gurudwara and blood was oozing out from the body of Joginder Singh. Bishan Singh, Suchha Singh and Pappu @ Jangir were present on the spot and then they took Joginder Singh in the tractor to Govindgarh. Rajendra Singh (PW-14) who is the younger brother of the deceased Joginder Singh ahs stated on the date of incident on hearing the cry he ran towards the house and saw his brother Joginder Singh bleeding opposite the Gurudwara and the accused appellants Paddu, Totaram and other persons running away from the place. The accused appellants Totaram and Paddu had Farsi in their hands. 15. The prosecution witness Dr. Bhagchand Gupta (PW-1) had conducted the post-mortem of the deceased Joginder Singh on 13.08.2003. The postmortem report (Ex.P/1) reveals following injuries on the body of the deceased: 1. Incised wound 5 cm x 1 cm x bone deep on the lower part of forehead ext from right eye brow to left eye brow. 2. Incised wound 4 cm x 1 cm x bone deep on the forehead 2 cm above the first injury. 3. Incised wound 3 cm x 1 cm x bone deep on the forehead 1 cm above the second injury. 4. Incised would 6 cm x 2 cm x 3 cm on the front of neck extending from left lateral to right lateral carotid artery and vein cut out, muscles cut on Trachea cut out. 5. Incised wound 3 cm x 1 cm muscle deep on the chin. 6. Abrasion 3 cm x 0.5 cm on the lower part of neck. 7. Abrasion 6 cm x 0.5 cm on the lower part of neck. 8. Abrasion 5 cm x 0.5 cm on the left shoulder. 9. Incised would 2 cm x 1 cm x bone deep on the right temporal side. All these injuries were antemortem in nature. In the opinion of Dr. Bhagchand Gupta (PW-1) the cause of death of Joginder Singh was excessive haemorrhage from carotid artery and vein and multiple injuries leading to shock and death. Dr. Bhagchand Gupta has further opined that the injuries were sufficient in ordinary course of nature to cause death. 16. The prosecution witness Rajiv Yaduvanshi (PW-19) who is the investigating officer has stated that during the course of investigation, the accused Bijender @ Paddu was arrested on 15.08.2013, vide arrest memo (Ex.P/12). Dr. Bhagchand Gupta has further opined that the injuries were sufficient in ordinary course of nature to cause death. 16. The prosecution witness Rajiv Yaduvanshi (PW-19) who is the investigating officer has stated that during the course of investigation, the accused Bijender @ Paddu was arrested on 15.08.2013, vide arrest memo (Ex.P/12). On the basis his information (Ex.P/28) under Section 27 of the Evidence Act, an iron Farsi was recovered as per recovery memo (Ex.P/16) from his house. This witness has further stated that he arrested Totaram, vide arrest memo (Ex.P/13). On the basis his information (Ex.P/30), an iron Farsi was recovered as per recovery memo (Ex.P/17) from his house. The seized articles were sent for Serological examination. As per FSL report (Ex.P/31), the Farsi Packet Mark-D seized from the accused Bijender @ Paddu and Packet Mark-F containing Farsi seized from Totaram were stained with blood of human origin. 17. It is trite law that common intention which is the gist of the principle of vicarious liability enshrined by Section34 of the Indian Penal Code can be the result of a premeditated decision between several co-accused or in a given case such common intention can very well develop on the spur of the moment or at the scene of the crime. What is of importance and, therefore, must be ascertained is the meeting of minds of the co-accused that the peculiar criminal act should be committed. Liability of an accused under Section 34, therefore, is a matter of inference to be drawn from the facts and circumstances of each case. The above are the principles that have been laid down in the case of Sripathi vs. State of Karnataka (2009) 11 SCC 660 as under: "9. 5. Section 34 has been enacted on the principle of joint liability in the commission 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 under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. 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 under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred form the circumstances appearing from the proved facts of the case and the proved circumstances. 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 mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar vs. State of Punjab 1977(1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision." 18. It is clearly established from the statements of eye witnesses Bishan Singh (PW-3), Suchha Singh (PW-4), Inder Singh (PW-10) that the accused appellants Totaram and Bijender @ Paddu who are armed with Farsi were coming after the deceased Joginder Singh. the accused Totaram gave a Farsi blow on the left forehead of Joginder Singh and then gave a Farsi blow on his head as a result of which Joginder Singh fell down on the ground. Thereafter, the other accused Paddu gave a Farsi blow on the neck of Joginder Singh and as a result of injuries sustained by Joginder Singh, he died on the spot. 19. Thereafter, the other accused Paddu gave a Farsi blow on the neck of Joginder Singh and as a result of injuries sustained by Joginder Singh, he died on the spot. 19. A critical analysis of the evidence shows that the deposition made by the eye-witnesses is consistent with regard to the allegations against the accused-appellants Totaram and Bijender @ Paddu. The witnesses have been subjected to lengthy cross-examination but nothing has come in the cross-examination of eye-witnesses nor there is anything to suggest that these witnesses had any reason to falsely implicate the accused appellants. 20. The prosecution witness Dr. Bhag Chand Gupta (PW-1) has stated as per postmortem report (Ex.P/1) of Joginder Singh were three incised wounds on the forehead, one incised wound on the front of neck, one incised wound on the right temporal side and one incised wound on the chin of the deceased and in his opinion the cause death of Joginder Singh was excessive hae-morrhage from carotid artery and vein and multiple injuries leading to shock and death and the injuries were sufficient in the ordinary course of nature to cause death. It is thus proved from the evidence of prosecution that the forehead, head and neck injuries of the deceased were caused by accused appellants Totaram and Bijender @ Paddu and they were homicidal in nature. 21. It is clear from the postmortem report (Ex.P/1) that the extent of damage caused to the forehead, head and neck where the carotid artery and vein had been cut, is indicative of the intention of the accused-appellants Totaram and Bijender @ Paddu to murder Joginder Singh. 22. The learned counsel for the appellants have urged that even if the prosecution version is accepted in toto, the case falls under Section 304 Part-I/34 IPC and not under Section 302/34 IPC for which the appellants have been convicted. There is, in our view, no merit in this contention since the deceased was assaulted by deadly weapons and the brutality of the assault shows that the accused appellants had the common intention to murder the deceased. We have no manner of doubt that the nature of injuries caused to the deceased were clearly indicative of the accused appellants having had the intention of killing him. Therefore, this contention of the learned counsel for the appellants cannot be accepted. We have no manner of doubt that the nature of injuries caused to the deceased were clearly indicative of the accused appellants having had the intention of killing him. Therefore, this contention of the learned counsel for the appellants cannot be accepted. The authorities cited by the learned counsel are distinguishable and are not applicable in the facts and circumstances of the present case. 23. In view of the above discussion there is clear, cogent and unimpeachable evidence produced by the prosecution against the accused appellants Totaram and Bijender @ Paddu. the deposition of the eye-witnesses Bishan Singh (PW-3), Suchha Singh (PW-4) and Inder Singh (PW-10) that the accused Totaram gave a Farsi blow on the forehead of deceased Joginder Singh and then a Farsi blow on the head as a result of which he deceased fell on the ground and the accused Bijender @ Paddu gave a Farsi blow on the neck of deceased which ultimately resulted in the death of Joginder Singh on the spot shows the brutality of assault clearly indicating the common intention of the accused appellants of murdering him. the written report (Ex.P/3) was promptly lodged by the father of Bishan Singh (PW-3) within two hours of the incident. The version given by the eye-witnesses gets support from the postmortem report (Ex.P/1) wherein the cause of death of Joginder Singh was excessive haemorrhage from carotid artery and vein and multiple injuries leading to shock and death and the injuries were sufficient in ordinary course of nature to cause death. The incident is further corroborated by the recovery of an iron Farsi from the accused Bijender @ Paddu and Totaram as per memos (Ex.P/16) and (Ex.P/17) and as per FSL report (Ex.P/31), each of the Farsi recovered from the accused appellants were stained with human blood. 24. In the result, we are not inclined to interfere with the findings recorded by the trial Court against the accused appellants Totaram and Bijender @ Paddu. Having considered the record and rival submissions advanced, we do not find any merit in this appeal. Accordingly the same is dismissed.