Vs. State of Rajasthan  Insc 908 (6 December 2006)
Sinha & Markandey Katju S.B. Sinha, J.
is before us aggrieved by and dissatisfied with a judgment of conviction and
sentence passed by a Division Bench of Rajasthan High Court, Bench at Jaipur in
D.B. Criminal Appeal No.765 of 1999. He was proceeded against for commission of
murder along with one Pitram, his brother-in-law. Pitram, accused No. 1 (A.1),
Mali Ram, the first informant (P.W.1) and Moosaram are brothers. Mooli Devi is
their mother. A First Information Report was lodged at about 9.30 p.m. on
13.10.1996 in relation to an incident which took place at the 'Dhani' of Mali
Ram's father, which is situated on Bhudoli Road, whereat, allegedly, the said Pitram
committed murder of the said Moosaram at about 8 p.m. on the same day.
in his First Information Report, alleged that he and the deceased carried some
household articles from town Neem Ka Thana and went to their father's 'Dhani'.
They stopped there, talked to their mother and left for their 'Dhani at Lambawali.
When they reached the field of 'Darogas', they heard shouting of their mother,
whereupon they started running, sensing that they would be attacked. Moosaram
was then attacked by 4-5 persons. It was alleged that Pitram, A.1, his brother,
who at the relevant time had been working at Jaisalmer in Border Security
Force, having 'bakda' in his hand attacked the deceased, as a result whereof he
fell down, whereafter his associates started assaulting him with respective
weapons in their hands. Moosaram shouted at his brother to save him. He ran and
hid himself in the crops. The accused and his associates searched for him with
torches in their hands, but because of shoutings of Moosaram they fled away.
reached the police station immediately after the occurrence. The investigation
was started by P.W.17-Surendra Kumar Bhati. It is not in dispute that
P.W.6-Mooli Devi, mother of the deceased as well had sustained injuries. The
Investigating Officer came to the place of occurrence and prepared a rough site
plan on the basis whereof later a scaled site plan was prepared. He collected
blood stained soil and ordinary soil from the place of occurrence, prepared
memo, obtained signatures of the witnesses thereupon.
also prepared Panchayatnama of the deceased Moosaram. He also seized the blood
stained clothes of Moosaram. He recorded the statements of witnesses Mahavir, Mali Ram, Mooli Devi and Khyali Ram on the same day. It appears
that apart from P.Ws. 1 and 2, two other witnesses, namely, P.W.8-Khyaliram and
P.W.9-Sarjeet Singh were eye-witnesses. However, their statements were recorded
motive for commission of the said offence by Pitram was said to be that Moosaram
allegedly used to harass his wife.
Appellant along with the said Pitram was convicted for commission of an offence
under Section 302/34 Indian Penal Code, other accused, who were four in number,
were acquitted, inter alia, on the premise that they had not been properly
identified and no individual overt acts was attributed to them.
No.1 is not before us. He, thus, has accepted the verdict.
Umesh Lalit, learned Senior counsel appearing on behalf of Appellant would
submit :- (i) Appellant was known to the informant and having regard to the
fact that he could identify the assailants of his brother, there was no reason
as to why he was not named;
The mother of the deceased, although named Appellant in her statement under
Section 161 of the Code of Criminal Procedure Code, 1973 before the
Investigating Officer, she did not attribute any overt act on his part.
Presence of P.Ws. 8-Khyaliram and P.W.9-Sarjeet Singh at the scene of
occurrence was highly doubtful as their statements were recorded by the police
after a few days.
pointed out that P.W.8 at one place of his deposition alleged that his
statement was taken by the police 5-7 days after the incidence and at another
place stated that the same was 10 to 11 days thereafter. The statement of Sarjeet
Singh, P.W.9, who claims himself to be an eye-witness, was also not recorded
for three days despite the fact that he was a witness to the Panchayatnama of
inquest of the deceased.
All the witnesses being related to the deceased, were highly interested and the
courts below committed a serious error in relying upon their statements.
Kumar Singh, learned counsel appearing on behalf of the State, on the other
hand, would submit that P.W.1 in his deposition had asserted that somebody else
has recorded his statement at the police station, who might have committed an
error in not recording the fact that Appellant herein also took part in the
commission of murder of the deceased and further more, having regard to the
fact that in the statements of both P.Ws. 1 and 6, which were recorded by the
Investigating Officer on 13th October, 1996 itself, he was named, it cannot be
said to be a case where omission to name Appellant would be fatal to the
prosecution case. It was pointed out that at the instance of Appellant the
Investigating Officer has recovered an iron pipe, with which he is to have
assaulted the deceased as also Mooli Devi-P.W.6.
death of Moosaram is not in dispute. The contents of autopsy report are also
not in dispute. As indicated hereinbefore, now the conviction of Pitram, the
brother-in-law of Appellant as the main assailant of the deceased, is also not
in dispute. There cannot be furthermore any doubt whatsoever that ordinarily it
was expected that P.W.1 would disclose the name of the assailants in the First
Information Report, but the Court, in a case of this nature, must take into
consideration the entire circumstances surrounding the incidence and may not
start with a presumption that he is not a truthful witness. Appellant and the
deceased came to their father's 'Dhani' with some household articles. They were
proceeding to their 'Dhani' therewith. Pitram, the brother of the deceased and
P.W.1, was working in the Border security Force. According to him, the deceased
had been harassing his wife. Appellant herein, being the brother-in-law of the
accused No.1 must have knowledge thereabout. It is, therefore, wholly unlikely
that he would be falsely implicated.
ran for his life as he was also about to be assaulted. He hid himself in the agricultural
field. The accused persons searched for him but could not trace him. According
to him, his brother was attacked by the assailants at about 8 p.m. The police station is said to be situated at a distance of
five kilometers from the place of occurrence. The entire incident must have
taken some time to take place. He must have, thus, keeping in view the fact
situation obtaining herein, discovered that his brother had expired due to the
injuries received by him round about 8.30 p.m. He went to the police station and if his statement is to be believed, 'Fard
Bayan' was recorded by a person who was sitting outside the police station. He
handed it over to the Officer In-charge of the Neem Ka Thana police station
after his statement was reduced to writing by the said person.
have perused the First Information Report. Therein even no statement had even
been made that P.W.6 (Mooli Devi) had suffered serious injuries. She,
indisputably, was brought to the hospital. She had been receiving treatment by
P.W.12-Dr. Pramod Kumar Sharma. We have noticed hereinbefore at some length
that the Investigating Officer had gone to the place of occurrence immediately
thereafter, carried out the preliminary investigation and recorded the
statements of witnesses. He must have come back to the town and recorded the
statement of Mooli Devi. It has not been disputed before us that P.W.1 and
P.W.6 in their statements before the police categorically named Appellant as
one of the persons accompanying Pitram and other accused persons. There may be
some discrepancies in their statements as regards the actual overt act played
by him, but the same, in our opinion, is not of much significance. Whereas
P.W.6 in his statement before the police did not allege any overt act on his
part, she did so in her statement in the Court. Similarly, P.W.1, as noticed
hereinbefore, although had not named Appellant in his First Information Report,
but both in his statement before the police as also in his statement before the
Court, not only named him but attributed specific overt acts on his part.
for the purpose of this case, may ignore the evidence of P.W.8 and P.W.9, who
may or may not be present at the scene of occurrence, but their presence in the
village probably cannot be disputed as admittedly P.W.9 was a witness to the
inquest report of the deceased which must have taken place within 2 to 2= hours
from the time of incident.
could be arrested only on 26th October, 1996.
First Information Report, as is well known, is not an encyclopedia of the
entire case. It need not contain all the details. We, however, although did not
intend to ignore the importance of naming of an accused in the First
Information Report, but herein we have seen that he had been named in the
earliest possible opportunity. Even assuming that P.W.1 did not name him in the
First Information Report, we do not find any reason to disbelieve the statement
of Mooli Devi-P.W.6. The question is as to whether a person was implicated by
way of an after-thought or not must be judged having regard to the entire
factual scenario obtaining in the case. P.W.6 received as many as four
injuries. A lacerated wound with diffuse swelling was found on her right hand,
which was caused by a hard and blunt substance. She had diffuse swelling on her
left leg as also on knee, which were again caused by a hard and blunt
substance. There was another lacerated wound on her person. She had also
complained of pain and tenderness on her chest.
accused No.1 as also Appellant were stated to be carrying iron pipes. The
deceased also suffered a large number of injuries, which are as under:
Lacerated wound 6 x 2 cm. x bone deep-chin- blunt-obliquely placed.
Lacerated wound 3 x 1.5 x 1 cm. upper lip-blunt.
Bruise 10 x 3 cm. Lt. Face obliquely placed.
Lacerated wound 10 x 2 cm. x bone deep. Lt. Temporoparito-occipital region semi
curved in shape blunt.
Lacerated wound 12 x 3 x 0.5 cm. Lt. Leg blunt obliquely placed.
Lacerated wound 2 x 1 cm. Rt. Leg-blunt.
2 x 1 cm. Lt. Thigh.
Bruise-three in number (A) 10 x 2 cm. (B) 8 x 2 (C) 4 x 2 cm.
placed on Lt. Thigh parallel to each other at 2 cms. Aparat. All bruises red in
colour." Some of the injuries indisputably could be caused only by hard
and blunt substance like an iron pipe.
number of injuries suffered by the deceased clearly point out that it could not
have been inflicted by one person. Common intention on the part of the accused
No.1 together with others to commit the murder of Moosaram can, therefore, be
is no uniform inflexible rule for applying the principle of common intention.
The inference therefor must be drawn from the totality of the facts and
circumstances of each case. It is difficult to find out two similar cases.
the accused formed common intention or not is essentially a question of fact.
in her evidence stated:
stayed for about 20 minutes with me, when they had left Pitram came. He had
come in a vehicle like car which he parked near his house. Pitram had come
along with his brother in law Rohtash and 2-4 another persons.
asked me where Maaliram and Musaram were. I told him that they have gone home.
When they had come they were carrying iron rods. Pitram asked me to tell the
truth otherwise he would beat me. I told him they have gone to dhadi (sic). He
said let us go to their dhadi we will beat them there. I shouted loudly run
away people are coming to kill you. When I shouted at that time Musaram and Maaliram
were going to Bansidhar's field.
etc. ran after them and I ran after them Maaliram ran away don't know where but
Musaram was surrounded by them and they caught him. Pitram hit Musaram first on
the head with a pipe and then Rohtash hit Musaram with a pipe and then the rest
of the accused started beating him. I can only recognize Pitram and Rohtash in
court. The witness recognized Pitram and Rohtash correctly in court. On seeing
them beating Musaram I fell on top of him then too they did not stop beating.
Then these people ran away and Musaram died on the spot. I had also been
medically examined and my X-ray was taken. Musaram was taken to hospital by Maaliram,
Sarjeet and Khyali." It is, therefore, evident that she attributed the
acts of assault not only on the part of Pitram but upon Rohtash also. Her
statement that she found her son being assaulted, fell on the top of him but
still they did not stop beating, is significant. She was an injured witness.
When she gave her statements before the police, she must have been in great
the accused was her own son. Appellant is his brother-in-law.
a mother would not involve her son and that too, on a charge of murder.
conviction and sentence awarded to Pitram is not assailable, the question which
arises for consideration is as to whether Appellant can be found guilty for
sharing common intention to commit the said crime along with Pitram. Intention
on the part of the accused to attract the principle of joint liability in the
doing of a criminal act must be inferred keeping in view the fact situation
involving in this case. All the accused came at the same time. Each one of them
was variously armed. They evidently came with an intention to commit some
crime. Their target was known. They did not even think of not committing the
crime of murder of a son in front of his mother. He was assaulted
indiscriminately. The mother tried to save her son. She fell on his body. She
in the process also suffered grievous injuries.
conjoint reading of the statement made by PWs. 1 and 6, it is evident that more
than one person took part in the acts of actual assault.
only they killed Pitram and assaulted his mother, they also chased PW-1. He had
to hide himself in the agricultural field. According to him, the accused
persons were searching him with the aid of the torch. He could not be found.
The intention of a person having a common intention to commit the crime must be
judged from the totality of the circumstances.
not a case where there could not be a prior arrangement. Had there been no
prior arrangement, they could not have reached the place of occurrence together
in a vehicle. They would not be carrying any weapon.
would not have acted conjointly in perpetrating the crime. They would not have made
searches together for PW-1 and fled away together. The prior-concert on the
part of the accused may be determined having regard to the subsequent conduct
of the accused. Thus, prior-concert in the instant case has also been proved,
inter alia, by subsequent conduct.
to just exceptions, it may be difficult to have direct proof of prior-concert
but absence of proof of direct evidence necessarily lead to inference that may
be sufficient to prove sharing of common intention by the accused.
& Anr. vs. State of U.P. [(2001) 3 SCC 673], this Court held
to attract Section 34 IPC two postulates are indispensable :
The criminal act (consisting of a series of acts) should have been done, not by
one person, but more than one person.
Doing of every such individual act cumulatively resulting in the commission of
criminal offence should have been in furtherance of the common intention of all
34 of the Indian Penal Code recognises the principle of vicarious liability in
the criminal jurisprudence. It makes a person liable for action of an offence
not committed by him but by another person with whom he shared the common
intention. It is a rule of evidence and does not create a substantive offence.
The section gives statutory recognition to the commonsense principle that if
more than two persons intentionally do a thing jointly, it is just the same as
if each of them had done it individually. There is no gainsaying that a common
intention presupposes prior concert, which requires a prearranged plan of the
accused participating in an offence. Such a preconcert or preplanning may
develop on the spot or during the course of commission of the offence but the
crucial test is that such plan must precede the act constituting an offence.
Common intention can be formed previously or in the course of occurrence and on
a spur of the moment. The existence of a common intention is a question of fact
in each case to be proved mainly as a matter of inference from the circumstances
of the case." In Lallan Rai & Ors. vs. State of Bihar [(2003) 1 SCC 268], it has been
plain look at the statute reveals 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. It is trite to record that such
consensus can be developed at the spot. The observations above obtain support
from the decision of this Court in Ramaswami Ayyangar v. State of T.N. In a similar vein the Privy Council in Barendra
Kumar Ghosh v. King Emperor [AIR 1925 PC 1 : 26 Cri. LJ 431] stated the true purport of Section 34 as below:
p.6) '[T]he words of Section 34 are not to be eviscerated by reading them in
this exceedingly limited sense. By Section 33 a criminal act in Section 34
includes a series of acts and, further, 'act' includes omission to act, for
example, an omission to interfere in order to prevent a murder being done
before one's very eyes. By Section 37, when any offence is committed by means
of several acts whoever intentionally cooperates in the commission of that
offence by doing any one of those acts, either singly or jointly with any other
person, commits that offence. Even if the appellant did nothing as he stood
outside the door, it is to be remembered that in crimes as in other things
'they also serve who only stand and wait'." The above discussion in fine
thus culminates to the effect that the requirement of statute is sharing the
common intention upon being present at the place of occurrence. Mere distancing
himself from the scene cannot absolve the accused though the same however
depends upon the fact situation of the matter under consideration and no rule
steadfast can be laid down therefor." Applying the legal principles as
noticed, we unhesitatingly are of the opinion that common intention on the part
of the appellant in committing the crime with Pitram stands established.
investigation was not fool proof but then defective investigation would not
lead to total rejection of the prosecution case.
vs. State Rep. by S.D.M. [(2003) 6 SCC 73], this Court held:
we notice the circumstances proving the case against the appellant and
establishing his identity beyond reasonable doubt, it has to be borne in mind
that the approach required to be adopted by courts in such cases has to be
different. The cases are required to be dealt with utmost sensitivity, courts
have to show greater responsibility when trying an accused on charge of rape.
In such cases, the broader probabilities are required to be examined and the
courts are not to get swayed by minor contradictions or insignificant
discrepancies which are not of substantial character. The evidence is required
to be appreciated having regard to the background of the entire case and not in
ground realities are to be kept in view. It is also required to be kept in view
that every defective investigation need not necessarily result in the
acquittal. In defective investigation, the only requirement is of extra caution
by courts while evaluating evidence. It would not be just to acquit the accused
solely as a result of defective investigation. Any deficiency or irregularity
in investigation need not necessarily lead to rejection of the case of
prosecution when it is otherwise proved." In State of M.P. vs. Mansingh & Ors. [(2003) 10 SCC 414], this
if it is accepted that there was deficiencies in investigation as pointed out
by the High Court, that cannot be a ground to discard the prosecution version
which is authentic, credible and cogent. Non-examination of Hira Lal is also
not a factor to cast doubt on the prosecution version. He was not an
eyewitness, and according to the version of PW 8 he arrived after PW 8.
PW 8 has been examined, the non- examination of Hira Lal is of no
consequence." For the reasons aforementioned, we are of the opinion that
the learned Trial Judge and the High Court have not committed any error in
passing the impugned judgment of conviction and sentence. The appeal is dismissed