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2020 DIGILAW 869 (ALL)

Daya Ram v. State of U. P.

2020-05-19

RAJ BEER SINGH

body2020
ORDER : 1. This appeal has been preferred against the Judgment and order dated 29.01.1988 passed by learned Additional District and Sessions Judge, Kannauj in Session Trial No. 152 of 1985 State vs. Daya Ram and Others, Crime No. 497 of 1982 under Sections 323, 307 I.P.C. Police Station Chhibra Mau, District Kannauj whereby accused-appellant Daya Ram and accused-appellants Hira Lal and Gandharv Singh (since dead) have been convicted under Section 307/34 and 323/34 I.P.C. They were sentenced to undergo seven years rigorous imprisonment along with fine of Rs. 2000/- under Section 307/34 I.P.C. and to undergo six months rigorous imprisonment under Section 323/34 I.P.C. In case of default in payment of fine they have to undergo six months additional imprisonment. Both the sentences were to run concurrently. 2. At the very outset, it may be stated that instant appeal has been filed by accused-appellants Daya Ram, Hira Lal, Gandharv Singh and Sahukar, whereas record shows that accused Sahukar son of Sri. Gandharv Singh has died during the pendency of the trial before the Court below and he was not convicted by the impugned order. This fact clearly indicates that this appeal has been preferred in most casual manner without perusing the impugned Judgment and order. Be that as it may, this appeal was maintainable only in respect of accused-appellant nos. 1, 2 and 3 namely, Daya Ram, Hira Lal and Gandharv Singh respectively. However, accused-appellant nos. 1 and 3, namely, Daya Ram and Gandharv Singh have passed away during the pendency of this appeal before this Court and instant appeal in respect of appellant nos. 1 and 3 Daya Ram and Gandharv Singh respectively has already been abated vide order dated 14.02.2020 and thus, now this appeal confines only in respect of appellant no. 2 Hira Lal. 3. As per prosecution case, about two years prior to the incident, some miscreants have committed murder of complainant's neighbour Gyan Singh and in that regard first information report was lodged against first informant's brother namely, Maheshwar and Hari Ram and that case was pending before the Court. Due to this reason, accused Daya Ram, Sahukar, Hira Lal and Gandharv Singh were having enmity with the complainant Goverdhan Lal. Incident of the present case took place on 16.09.1982 at about 12:00 noon when complainant was sitting in verandah of his house. Due to this reason, accused Daya Ram, Sahukar, Hira Lal and Gandharv Singh were having enmity with the complainant Goverdhan Lal. Incident of the present case took place on 16.09.1982 at about 12:00 noon when complainant was sitting in verandah of his house. Accused Daya Ram and Sahukar having guns, accused-appellant Hira Lal armed with country made pistol and accused Gandharv armed with lathi came there and they exhorted to take revenge of Gyan Singh. They fired at complainant and resultantly complainant suffered pellets injuries on his left arm and left leg. Hearing noise, complainant's father Govind Prasad, mother Sarbati and wife of complainant's brother namely, Satyawati and some other persons of village including Khusi Ram and Sarnam came there. Accused Gandharv Singh assaulted complainant's father and mother with lathi, accused-appellant Hira Lal fired a shot, however, complainant escaped from that shot. Thereafter, all the accused persons ran away from the spot. 4. Complainant-Goverdhan Lal submitted a tehrir Ex.Ka.1 at police station and consequently this case was registered on 16.09.1982 at about 13:30 hours vide Case Crime No. 497 of 1982 under Sections 323, 307 I.P.C., Police Station Vidhunagar, District Farrukhabad vide F.I.R. Ex.Ka-8. 5. Injured Goverdhan Lal was medically examined vide M.L.C. Ex.Ka-2 and as per his injury report, he has sustained following injuries: (i) Punctured wound caused by gun shot wound circular 1/2 cm. x 1/2 cm. tattooing present on the middle and posterior surface of the fore arm. Advised X-Ray. (ii) Punctured wound caused by gun shot wound circular 1/2 cm. x 1/2 cm. x 1 cm. tattooing present on the posterior surface about 4 cm. away towards the medial surface... the injury no. 1 of left fore arm (Advised X-Ray). (iii) Punctured wound (caused by gun shot wound) circular 1/2 cm. x 1/2 cm. x 1 cm. tattooing present on the abdomen left side about 7 cm. away and upwards from It. Iliac superior spine of hip bone (Ad. X-Ray). (iv) Abrasion-Black, circular 1/2 cm. x 1.2 cm. on the centre part of left side abdomen. 6. Injured Satya Bati was medically examined vide M.L.C. Ex.Ka-3 and as per her injury report, she has sustained following injuries: “(i) Contusion-Reddish 10 cm. x 2 cm. longitudinally on the posterior side and left part of back. (ii) Contusion-Reddish, 10 cm. x 2.5 cm. on the posterior side of right fore arm, longitudinally. (iii) Contusion-Reddish 11 cm. 6. Injured Satya Bati was medically examined vide M.L.C. Ex.Ka-3 and as per her injury report, she has sustained following injuries: “(i) Contusion-Reddish 10 cm. x 2 cm. longitudinally on the posterior side and left part of back. (ii) Contusion-Reddish, 10 cm. x 2.5 cm. on the posterior side of right fore arm, longitudinally. (iii) Contusion-Reddish 11 cm. x 3 cm. on the posterior surface of right left upper part longitudinally.” 7. Injured Smt. Sarbati was medically examined vide M.L.C. Ex.Ka-4 and as per her injury report, she has sustained following injuries: “Contusion-Reddish 12 cm. x 3 cm. longitudinally on the top of Rt. shoulder joint.” 8. Injured Govind Prasad was medically examined vide M.L.C. Ex.Ka5 and as per his injury report, he has sustained following injuries: “(i) Contusion-Reddish 10 cm. x 2.5 cm. on the top of Lt. shoulder joint transversely. (ii) Contusion-Reddish 15 cm. x 3 cm. postero laterally side of Rt. fore arm longitudinally. (iii) Contusion-Reddish circular on top of it. Patella bone of left (7 cm. x 7 cm.)” 9. As per X-Ray report Ex.Ka6 of Goverdhan Lal, multiple radio-opaque foreign bodies were seen in both the slims. 10. Investigation of case was conducted by Sub-Inspector Hari Singh. After completion of investigation all the accused persons were charge-sheeted under Sections 323, 307 I.P.C. vide Ex.Ka-12. 11. Learned trial Court framed charges under Section 307/34 I.P.C. and Section 323/34 I.P.C. against all accused persons. In order to bring home the guilt of accused persons, prosecution has examined five witnesses. After prosecution evidence, accused persons were examined under Section 313 Cr.P.C. wherein they have denied the prosecution evidence and claimed false implication. In their defence accused have examined one Tej Singh was examined as DW-1. 12. After hearing and analyzing the evidence on record, accused-appellants Hira Lal, Daya Ram and Gandharv Singh were convicted under Sections 307/34 and 323/34 I.P.C. and sentenced as mentioned in paragraph no. 1 of this Judgment. 13. Being aggrieved, accused-appellant Hira Lal and deceased accused-appellants Daya Ram and Gandharv Singh, have preferred this appeal. 14. Heard Ms. Ruchi Srivastava, learned Amicus Curiae, Sri. Amit Kumar Singh, learned A.G.A. for State and perused the record. 15. Learned Amicus Curiae has submitted that all the witnesses of fact are interested witnesses and that no independent witness was examined. 13. Being aggrieved, accused-appellant Hira Lal and deceased accused-appellants Daya Ram and Gandharv Singh, have preferred this appeal. 14. Heard Ms. Ruchi Srivastava, learned Amicus Curiae, Sri. Amit Kumar Singh, learned A.G.A. for State and perused the record. 15. Learned Amicus Curiae has submitted that all the witnesses of fact are interested witnesses and that no independent witness was examined. As per prosecution, alleged incident took place at 12:30 noon in mid of village but despite that no independent witness has been examined and thus testimony of those interested witnesses cannot be relied upon. Role attributed to appellant is that he has fired a shot from country made pistol which has not caused any injury to any injured and that there is no evidence that injured persons have sustained injuries in furtherance of common intention. It was further argued that there is no motive on the part of appellant to indulge in such incident and that the appellant-Hira Lal has been falsely implicated in the instant case on account of enmity. It was submitted that there are material contradictions and inconsistencies in statements of witnesses. 16. Per contra, learned A.G.A. has argued that in the instant case there are four injured persons, out of which, three injured persons have been examined by prosecution. These injured witnesses have made clear and cogent statements. They have been subjected to cross examination but nothing adverse could come out. The version of these witnesses has been corroborated by medical evidence. It was further argued that there is sufficient evidence on record which establishes the involvement of accused-appellant Hira Lal in the incident and that there is no error in the impugned Judgment and order of conviction. 17. In evidence, first informant/PW-1 Goverdhan Lal has stated that two years prior to the incident, brother of accused-Daya Shanker namely, Gyan Singh was murdered and in that case, complainant's brother Maheswar and Hari Ram were named as accused and due to that reason, accused persons were nurturing enmity against him. On the day of incident at around 12:00 noon while PW-1 Goverdhan Lal was sitting outside his home, accused-Daya Ram and Sahukar having guns, accused Gandharv having lathi and accused appellant Hira Lal armed with country made pistol came there and accused-appellant Daya Ram and Sahukar made firing at PW-1 Goverdhan Lal and consequently he sustained firearm injuries at his leg and abdomen. PW-1 further stated that his mother, father and sister-in-law as well as some villagers including Khushi Ram and Sarnam also came there but accused-appellant Gandharv has given lathi blow at his mother. Accused-appellant Hira Lal fired a shot, however, he escaped. Thereafter accused persons ran away from the spot. 18. PW-2 Satyawati has stated that after hearing noise, she came out from room and saw that accused Sahukar and Dayaram were armed with guns, accused-appellant Hira Lal was armed with country made pistol and accused Gandharv was having lathi and they were saying that they would take revenge. Sahukar and Gandharv fired from their respective guns, which caused injuries to her brother-in-law (Jeth)/complainant. Accused-appellant Hira Lal also fired by his country made pistol but it did not hit any person. PW-2 Satyawati further stated that her mother and father in-law also rushed to the spot, but they were also assaulted by Gandharv with lathi and that she (PW-2) also sustained injuries. 19. PW-3 Saraswati has also made similar statement wherein she stated that on the day of incident at about 12:00 noon after hearing noise she came outside and saw that accused-appellant Hira Lal and Daya Ram were armed with guns and Sahukar was armed with country pistol whereas Gandharv was having lathi and that they have fired at her son Goverdhan Lal. She has stated that accused Daya Ram and accused Sahukar have made firing, whereas accused-appellant Gandharv has inflicted lathi injuries at her husband and daughter. 20. PW-4 Dr. Chaturburg Sharma has examined the injured persons and had proved their M.L.C. PW-5 Constable Gedan Singh has proved documents prepared by the Investigating Officer Hari Singh. 21. DW-1 Tej Singh has stated that he is Pradhan of Village and on the day of incident he heard sound of firing from the side of tubewell of Goverdhan Lal and when he rushed there, he saw that Goverdhan Lal was lying in injured condition. 22. The main thrust of learned counsel for the appellant that appellant-Hira Lal has been attributed role of firing from country made pistol, which is not believable as no one sustained any injury from said fire and there is no evidence that alleged fire was shot upon complainant or injured persons. 23. 22. The main thrust of learned counsel for the appellant that appellant-Hira Lal has been attributed role of firing from country made pistol, which is not believable as no one sustained any injury from said fire and there is no evidence that alleged fire was shot upon complainant or injured persons. 23. Scrutiny of evidence shows that only role assigned to the appellant-Hira Lal is that he came along with accused-persons and that co-accused Daya Ram and Shankar have fired at PW-1 Goverdhan Lal, accused Gandharv Singh has given beating with lathi and accused appellant Hira Lal has fired from pistol which has not hit anyone. Eye-witnesses have stated that alleged fire by Hira Lal was shot from a distance of 4-5 steps but there is nothing to show that how the witnesses have saved themselves from alleged fire shot by appellant Hira Lal. If a person fires at 3-4 persons with intention to kill them from a distance of 4-5 steps, in all probability such victim or victims would suffer injuries unless there is some specific case that they saved themselves from such fire by running from there or by taking side of some other object like wall etc. The prosecution version, that accused-appellant Hira Lal had fired a shot which has not caused injury to anyone, does not appears to be cogent and believable. It would be pertinent to mention that there was long standing enmity between the parties which is clear from the evidence that earlier Gyan Singh and Mathuri were murdered. Gyan Singh was brother of accused persons whereas Mathuri is stated father of accused persons and in that case family members of complainant were named as accused persons. Trial Court has also recorded a finding that there was long standing enmity between the parties. No doubt PW- 1 Goverdhan Lal, PW-2 Satya Bati and PW-3 Sarbati have sustained injuries and that testimony of injured witness is to be considered important, as injuries to witnesses is inbuilt guarantee of his/her person at the scene of offence but there is no such guarantee that injured witness would always depose truth. It is not uncommon that sometime due to long standing enmity innocent persons are roped in along with actual assailants. In the instant case, as stated above alleged fire shot by accused-appellant has not caused injury to any person. Alleged pistol has not been recovered. It is not uncommon that sometime due to long standing enmity innocent persons are roped in along with actual assailants. In the instant case, as stated above alleged fire shot by accused-appellant has not caused injury to any person. Alleged pistol has not been recovered. No cartridge has been found at spot. There is long standing enmity between the parties. Considering entire facts, it appears doubtful that accused-appellant-Hira Lal has made fire as alleged by the prosecution. 24. Now question arises whether accused-appellant Hira Lal can convicted with aid of Section 34 I.P.C. The essential constituent of the vicarious criminal liability prescribed by Section 34 I.P.C. is the existence of common intention. If the common intention in question, animates the accused persons and, if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. 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 I.P.C. 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. Common intention essentially being a state of mind and can only be gathered by inference drawn from facts and circumstances established in a given case. In the case of Hira Lal Malik vs. State, 1977 Cri. L.J. 1921, the Supreme Court observed that: “38. Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused.” (Emphasis supplied) The Hon'ble Supreme Court in the case of Ramesh Singh @ Photti vs. State of A.P. (2004) 11 SCC 305 , has extensively dealt with the scope of Section 34 of the IPC. It is only then one accused can be made vicariously liable for the acts and deeds of the other co-accused.” (Emphasis supplied) The Hon'ble Supreme Court in the case of Ramesh Singh @ Photti vs. State of A.P. (2004) 11 SCC 305 , has extensively dealt with the scope of Section 34 of the IPC. It was observed that: “To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Indian Penal Code. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held to guilty. By introducing Section 34 in the penal code the Legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principles of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. Noor Mohammad Mohd. Yusuf Momin vs. State of Maharashtra, AIR 1971 SC 855.” In case Nand Kishore vs. State of Madhya Pradesh, (2011) 12 SCC 120 , the Apex Court discussed the ambit and scope of Section 34 IPC as well as its applicability to a given case, as under: “......20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons. (b) Such act is done in furtherance of the common intention of all. (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. It was held that these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts, which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 of IPC must be done by several persons. The emphasis in this part of the Section is on the word “done.” It only flows from this that before a person can be convicted by following the provisions of Section 34 of IPC, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 of IPC must, therefore, be a participant in the joint act which is the result of their combined activity. In fact law journals are replete with cases, wherein it has been consistently laid down by the Apex Court that common intention implies acting in concert and existence of a prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. In fact law journals are replete with cases, wherein it has been consistently laid down by the Apex Court that common intention implies acting in concert and existence of a prearranged 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. In view of the above discussion, it is manifest that to establish a case under section 34 of IPC, prosecution has to prove beyond all reasonable doubt that the appellant had the knowledge of the intention of his co accused, and they voluntarily shared the said intention.” 25. Keeping the aforesaid legal position in view, in the instant case it is clear that as per prosecution injuries to injured persons have been caused by co-accused Daya Ram, Sahukar and Gandharv Singh. As stated earlier only role assigned to appellant-Hira Lal is that he fired a shot, however that shot did not cause any injury to any person. As observed earlier prosecution version that accused-appellant Hira Lal has made fire appears doubtful and in view of all attending facts and circumstances of the case this possibility cannot be ruled out that he might have been named due to long standing enmity. Since the role assigned to accused-appellant-Hira Lal has been found doubtful and that there is no other evidence to show that accused-appellant shared common intention with co-accused or that accused appellant Hira Lal has knowledge of intention of co-accused, it would not be safe to convict with the aid of Section 34 I.P.C. 26. In view of above discussed position of law regarding applicability of Section 34 of Indian Evidence Act and facts and circumstances of the case, it becomes doubtful that appellant-Hira Lal has shared common intention with co-accused persons to cause injuries to complainant and injured persons. Considering evidence on record as well as attending facts and circumstances of the case, it is thoroughly doubtful that the appellant-Hira Lal was having common intention with co-accused persons to cause injuries to complainant and other injured persons. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. Considering evidence on record as well as attending facts and circumstances of the case, it is thoroughly doubtful that the appellant-Hira Lal was having common intention with co-accused persons to cause injuries to complainant and other injured persons. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 , State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 , Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain and Others vs. State of Assam and Another, (2015) 11 SCC 242 . In the instant case, taking cumulative effect of entire evidence and all attending facts and circumstances of case, accused-appellant Hira Lal deserves benefit of doubt. 27. In view of the aforesaid, conviction and sentence of accused-appellant-Hira Lal is set aside and he is acquitted of charges levelled against him. The appellant is on bail. His personal bonds is cancelled and sureties are discharged. 28. The appeal is allowed. 29. This Court appreciate the assistance rendered by Ms. Ruchi Srivastava, learned Amicus Curiae. The State Government is directed to pay Rs. 4000/- as remuneration to Ms. Ruchi Srivastava. 30. Office is directed to transmit the record of trial Court as well as copy of the judgment to the Court below.