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2018 DIGILAW 353 (ALL)

RAM PRAKASH v. STATE OF U. P.

2018-02-08

VIJAY LAKSHMI

body2018
JUDGMENT : 1. This appeal has been preferred against the judgment and order dated 3.9.1985 passed by the IV Additional Sessions Judge, Etawah, in S.T. No. 296 of 1983, State Vs. Ram Prakash and others, whereby the appellants have been convicted u/s 307/34 I.P.C. and have been sentenced to undergo R.I. for three years. 2. At the very outset, it is very relevant to mention that out of the three appellants, appellant no. 1, Ram Prakash, died and the appeal stood abated in respect of him on 11.12.2014. Out of the remaining two appellants, appellant no. 3, Gaya Prasad, took the plea of juvenility, during pendency of this appeal, on which this court vide order dated 9.9.2015 referred the matter to the Juvenile Justice Board, Etawah, with direction to conduct an enquiry in accordance with law after giving opportunity of hearing to the complainant side and to ascertain the age of the appellant Gaya Prasad on the date of the occurrence. The Juvenile Justice Board, Etawah, after recording statements of witnesses and giving due opportunity of cross-examination to the complainant party and also on the basis of medical examination report submitted its report dated 4.12.2015 to the effect that the age of the appellant Gaya Prasad was less than 18 years at the date and time of the occurrence. 3. As the appellant, Gaya Prasad, has been declared a juvenile, his case should be dealt separately. Accordingly, his file is hereby separated from the file of the adult appellant Sri Krishan. 4. Office is directed to take necessary steps for separation of the file of the appellant Gaya Prasad within two weeks and to send it to the Juvenile Justice Board, Etawah, for retrial. The learned Juvenile Justice Board is directed to proceed with it in accordance with law and if the circumstances show that the appellant Gaya Prasad was "mature enough" to understand the consequences of his act, to implement the amended provisions of Juvenile Justice Amendment Act, 2015 and to send it to the Children's Court. 5. Now the only surviving appellant in this appeal is Sri Krishan, who has been convicted and sentenced u/s 307 read with section 34 I.P.C. 6. Heard Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Ajay Kumar Pandey and Sri Sheel Kumar Dubey, learned counsel for the appellant and learned AGA. Perused the record. 7. 5. Now the only surviving appellant in this appeal is Sri Krishan, who has been convicted and sentenced u/s 307 read with section 34 I.P.C. 6. Heard Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Ajay Kumar Pandey and Sri Sheel Kumar Dubey, learned counsel for the appellant and learned AGA. Perused the record. 7. Shorn of unnecessary details, the prosecution case in a nutshell is that in the intervening night of 3/4.4.1983 at about 12.00 P.M. when the complainant was sleeping on the wheat sacks which were kept loaded in the bullock cart, standing in front of the door of his house, four persons armed with lathi, spear and country made pistol reached there and pulled his quilt. The complainant woke up and asked, "Kaun Hai?" On this, Gaya Prasad (juvenile accused) shot fire on him by a country made pistol, he was carrying with him. The fire hit at the right hand and right side ribs of the complainant. On alarm being raised by him witnesses Gyani, Raghuvir and Ahbaran Singh, who were also sleeping nearby, reached there and challenged the assailants. Thereafter all the assailants ran away towards western side. All of them were identified by the witnesses in the moonlight and also in the light of a lantern, which was burning under the Chhappar. An F.I.R. was lodged about the incident naming only three assailants as Ram Prakash, Sri Krishan and Gaya Prasad. With regard to the fourth one it was stated in the F.I.R. that he was not known to the witnesses, however, he can be identified if he comes in front of them. The motive behind the incident as also mentioned in the FIR is that there was some dispute between the families of accused Gaya Prasad @ Malik and of the complainant on the issue of 'Vidai' of the sister of Gaya Prasad, who is the daughter-in-law of the complainant and the complainant's family was not inclined to take her with them (Vidai) due to her ill reputed character. 8. The report of the incident was lodged promptly on 4.4.1983 at 10.00 A.M. The matter was investigated. The injured Ram Naresh (complainant) was sent for medical examination by the police and the following injuries were found by the doctor on his body at 10.30 A.M.:- 1. Abrasion 2 cm x 0.5 cm on the Rt. 8. The report of the incident was lodged promptly on 4.4.1983 at 10.00 A.M. The matter was investigated. The injured Ram Naresh (complainant) was sent for medical examination by the police and the following injuries were found by the doctor on his body at 10.30 A.M.:- 1. Abrasion 2 cm x 0.5 cm on the Rt. upper arm 6 cm below the tip of Rt. shoulder, fire sect present. 2. Multiple punctured wound in the area 8.5 cm x 14 cm on the Rt. upper arm with fire blacking around the wounds present. This is 12 cm below the tip of Rt. shoulder. Suspected pellets inside. Advise X-ray. Swelling around it present. 3. Multiple punctured wound in the area 9 cm x 9.5 cm with blacking around the wounds are over lapped each other on the Rt. side back of chest 2 cm below the exterior Axillary fold, swelling around it present. 9. In the opinion of doctor, the injury no. 1 was caused by hard and blunt object friction. Inj. no. 2 and 3 were caused by firearm. The duration was about more than 6 hours and within 12 hours, direction for inj. no. 2 & 3 adv. X-Ray for detection of pellets. Ref. to Distt. Hospital, Etawah. 10. X-ray was also done and according to the x-ray report multiple rounded radio opaque foreign body shadow were seen in the right arm and right side chest area of the injured. 11. The investigating officer recorded the statements of witnesses, prepared the site plan, took blood stained clothes of the injured and the lantern burning at the spot in custody and after concluding the investigation submitted charge sheet against all the three accused named in the FIR. 12. The case being triable by the court of Sessions, it was committed to the court of Sessions. The charge u/s 307 simplicitor was framed against the accused Gaya Prasad and charge under section 307 read with 34 I.P.C. was framed against the accused Ram Prakash and Shri Krishan. The accused- appellant denied from the charge and claimed trial. 13. The prosecution in order to prove its case examined six witnesses in all, out of which PW1 and PW2 were witnesses of fact and the remaining were of formal character. 14. The injured witness Ram Naresh was examined as PW1, who fully supported the prosecution case. The accused- appellant denied from the charge and claimed trial. 13. The prosecution in order to prove its case examined six witnesses in all, out of which PW1 and PW2 were witnesses of fact and the remaining were of formal character. 14. The injured witness Ram Naresh was examined as PW1, who fully supported the prosecution case. Gyan Singh, who is said to be an eyewitness, was examined as PW2. He has also supported the prosecution case. 15. Learned trial court, after a detailed discussion of the evidence, found the appellant guilty and convicted and sentenced him as mentioned in the first paragraph of this judgment. 16. The legality and correctness of the impugned judgment has been assailed in this appeal by the learned Senior Advocate Sri Satish Trivedi, arguing on behalf of appellant Sri Krishan, mainly on the ground that the learned trial court has failed to appreciate that the there was no evidence on record that the appellant Sri Krishan had any common intention with accused Gaya Prasad to commit the offence. Learned counsel has contended that no overt act has been attributed to the appellant and no specific role has been assigned to him. PW1 has admitted the fact that none of the accused had uttered any word at the time of the occurrence, therefore, it cannot be said that the appellant Sri Krishan had even exhorted Gaya Prasad to kill the complainant or to open fire. 17. Learned counsel has further contended that the motive as per the prosecution case was with the accused Gaya Prasad and not with the appellant Sri Krishan because the dispute was between the family of the complainant and the accused Gaya Prasad. The prosecution case is that the sister of Gaya Prasad was married to the nephew of the complainant. After the marriage the complainant and his family came to know that the character of the bride was not good, so they refused to take her with them for her 'Vidai'. For this reason, the accused Gaya Prasad was nurturing grudge against the complainant. Learned counsel has contended that the appellant Shri Krishan is a distant relative of the accused Gaya Prasad, who has no concern with their dispute. For this reason, the accused Gaya Prasad was nurturing grudge against the complainant. Learned counsel has contended that the appellant Shri Krishan is a distant relative of the accused Gaya Prasad, who has no concern with their dispute. According to the FIR and the statements of the prosecution witnesses the weapon assigned to the appellant is lathi and the injury report clearly shows that no injury of lathi was found on the body of the injured. Learned counsel has further contended that although the injury no. 1 is an abrasion 2 cm x 0.5 cm at the right upper arm below the tip of shoulder but it has not been caused by lathi in view of the clear admission of PW1, who has admitted the fact that the abrasion was caused by the bamboo frame of the bullock-cart. It is further submitted that the radiologist Dr. R. K. Chaurasiya, who has been examined as PW3, has categorically stated that the injuries nos. 2 and 3 have been caused by a single shot of the firearm. The further submission of learned counsel for the appellant is that only three injuries have been sustained by the injured and the aforesaid evidence clearly shows that none of those could have been caused by the present appellant. 18. Learned counsel has vehemently contended that a perusal of the impugned judgment clearly shows that the learned trial judge has nowhere discussed about sharing of the common intention by the appellant with co-accused Gaya Prasad and has convicted him in this case with the help of section 34 I.P.C., on the basis of surmises and conjectures. Learned counsel has further contended that there is nothing in the statements of any of the witnesses to show that there was a prior meeting of the mind between the appellants and they had gone to the house of the complainant with common intention to kill him. Learned counsel has contended that even assuming for the sake arguments that Sri Krishan had accompanied Gaya Prasad, (who has been assigned the main role of firing), to the place of occurrence, it cannot be said that Sri Krishan was sharing a common intention with Gaya Prasad or he had even any knowledge that Gaya Prasad has a country made pistol with him and he may shoot. 19. 19. On the aforesaid grounds learned counsel has submitted that the appeal be allowed and the impugned judgment be set aside. 20. Per contra, learned AGA has opposed the appeal by contending that the appellant has been identified by the witnesses. There is no reason to falsely implicate him. He accompanied the main accused Gaya Prasad with lathi, therefore, it can be presumed that he had a common intention to kill the complainant Ram Naresh. 21. Considered the rival submissions of the learned counsel for the parties. 22. Section 34 I.P.C. which is quoted below, provides :- "Section 34 I.P.C.: Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 23. A bare reading of the above provision makes it clear that in order to bring a case in the ambit of section 34 I.P.C. the prosecution has to prove the actual participation of more than one person for commission of a criminal act, done in furtherance of common intention as a prior concept. It is well settled position that in order to convict a person, who is vicariously liable u/s 34 I.P.C. it is not necessary to prove that each and every one of them had indulged in overt act, however, the participation of accused in commission of an offence under a prearranged or premeditated plan must be established. 24. In Gaudappa Vs. State of Karnataka (2013)3 SCC 675 while answering the question as to how can the common intention be gathered or inferred, the hon'ble Apex Court held that:- "Facts of each case have to be carefully scrutinized and common intention is to be gathered from the manner in which crime has been committed, conduct of accused soon before and after occurrence, determination and concern with which crime was committed, weapon carried by accused and from nature of injury caused by one or some of the. Thus, the totality of circumstances must be taken into consideration." 25. In Abdul Sayeed Vs. Thus, the totality of circumstances must be taken into consideration." 25. In Abdul Sayeed Vs. State of M.P. (2010)10 SCC 259 the Hon'ble Apex Court while interpreting Section 34 of I.P.C. has observed as under:- "Section 34 IPC carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others if he has the "common intention" to commit the offence. The phrase "common intention" implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention must be there prior to the commission of the offence in point of time." 26. It has further been observed by Apex Court that "The establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch this Section gets attracted when a criminal act is done by several persons in furtherance of the common intention of all. What has, therefore, to be established by the prosecution is that all the concerned persons had shared a common intention." 27. In Virendra Singh Vs. State of M.P. JT 2010 (8) SC 319, the Apex Court observed as under: "In order to incur joint liability for an offence there must be a pre-arranged and pre-meditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the pre-meditation and though the plan may be formed suddenly." 28. In Mrinal Das and others Vs. The State of Tripura (2011)9 SCC 479 , it has been held by the Hon'ble Apex Court that Section 34 I.P.C. requires a pre-arranged plan and pre-supposes prior concept. Therefore, there must be prior meeting of minds. 29. As per well settled legal position cited above, in order to convict an accused with the aid of section 34 I.P.C. the prosecution must establish the presence of common intention or pre-meditated concert of all the accused participating in the crime. Common intention is to be gathered from the manner in which crime has been committed, conduct of accuse soon before and after the occurrence, weapon carried by the accused and the nature of injury caused by one or some of them. 30. Common intention is to be gathered from the manner in which crime has been committed, conduct of accuse soon before and after the occurrence, weapon carried by the accused and the nature of injury caused by one or some of them. 30. In so far as the facts of the present case are concerned, the evidence on record clearly reveals that there is no injury of lathi i.e. the weapon assigned to the present appellant on the injured. Even co-accused Gaya Prasad, who has been assigned the role of shooting has not repeated the fire, which is evident from the statement of the doctor, who has stated that the injury nos. 2 and 3 are the result of a single fire. Had there been any intention to kill the complainant, the fire might have been repeated. Moreover, the present appellant had absolutely no motive to kill the complainant, even if assuming that he was accompanying co-accused Gaya Prasad at the time of occurrence. 31. On the basis of aforesaid discussion, I am of the firm view that the prosecution has failed to establish in this case that the appellant Sri Krishan had any common intention with other co-accused to commit the murder of complainant. It appears strange that the learned trial court has nowhere discussed about section 34 I.P.C. in the impugned judgment and without attributing common intention to the appellant, the court below has convicted him u/s 307 I.P.C. read with section 34 I.P.C. 32. Due to the aforesaid reasons this court is of the considered view that the conviction of the present appellant u/s 307/34 I.P.C. is not legally sustainable. Accordingly, the impugned judgment with regard to the appellant Shri Krishan is liable to be set aside and the appeal filed by the appellant Shri Krishan deserves to be allowed. 33. The appeal filed by the appellant Shri Krishan is allowed and the impugned judgment and order of conviction and sentence passed against him is set aside. 34. The appellant Shri Krishan is on bail. He need not surrender before the court. His sureties are discharged. 35. It is made clear that this court has not expressed any opinion about the complicity of co-accused Gaya Prasad, who has taken the plea of juvenility in the appeal and whose file has been separated.