State
of U.P. Vs. Jhinkoo Nai [2001] Insc 365 (3 August 2001)
M.B.
Shah & Doraiswamy Raju Shah, J.
Special Leave Petition (crl.) 9206 of 2000
With SLP
(Crl) ...Crl M.P. 9206 OF 2000
In
Sessions Trial No.391 of 1977, Jhinkoo Nai and Tahir were convicted for the
offence punishable under Sections 302 and 307 read with 34 IPC. Third accused Imtiyaz
alias Chitharu was acquitted.
Against
that judgment and order, Jhinkoo Nai alongwith Tahir filed Criminal Appeal
No.2478 of 1980 before the High Court of Allahabad. Pending appeal, Tahir
expired and his appeal proved abated. By judgment and order dated 28.5.1999,
the High Court set- aside the conviction of Jhinkoo Nai for the offence
punishable under Section 302 read with Section 34 IPC and Section 307 read with
Section 34 IPC but convicted him for the offence punishable under Section 324
IPC and sentenced to suffer RI for two years.
Against
that judgment and order, the State has preferred Criminal Appeal No. 1077 of
1999. Accused Jhinkoo Nai has also filed special leave petition against the
said order which is delayed by 454 days.
The
learned counsel for the appellant-State submitted that the judgment and order
passed by the High Court acquitting the respondent for the offence punishable
under Section 302 read with Section 34 IPC is, on the face of it, illegal and
erroneous. As against this, learned counsel appearing on behalf of the
respondent-accused supported the reasons recorded by the High Court acquitting
the respondent for the offence punishable under Sections 302 and 307 read with
34 IPC.
For
appreciating the contention raised by the learned counsel for the parties, we
would refer to the facts as proved by the prosecution. It is the prosecution
story that on 14.2.1975, as it was alleged that there was illicit relationship
of accused Chitharu and Tahir with Subhawati d/o Sanichari, there was a quarrel
between Sanichari Devi and Nageshari (PW5) wife of Mani Ram (PW4). At the time
of this quarrel, deceased Chandratara and Mantara daughters of Nageshari were
present. The accused Tahir and Chitharu were also sitting nearby. It is the say
of the prosecution that during this quarrel Sanichari had given a threat to Nageshari
that she would teach her a lesson in near future for the allegation made
against her daughter. On the same day, in the mid-night, while Mani Ram and his
wife Nageshari were sleeping on the verandah of the house and their two
daughters were sleeping inside the room, four persons, namely, Deep Chand, who
died during the pendency of the trial, Tahir who died during the pendency of
the appeal in High Court, Jhinkoo Nai and Imtiyaz alias Chitharu entered into
the house of Mani Ram. Tahir, Jhinkoo and Deep Chand entered into the room
where Chandratara and Mantara were sleeping. All of them lifted Chandratara who
was merely 18 years old and brought her in Osara (Verandah). It is the say of
the prosecution witnesses that deceased Chandratara was resisting and was not
prepared to satisfy the lust of the accused. At that time, Tahir stabbed her on
the left side of chest and she died instantaneously. Nageshari started
shouting. Thereafter, Mani Ram and other daughter Mantara also started raising
alarm. At that time, Jhinkoo gave a knife blow to Nageshari on her chest, Deep Chand
gave three knife blows to Mani Ram. It is also alleged that Chitharu who was
standing with lathi in his hand gave a lathi blow to Mani Ram. Thereafter, they
ran away from the scene of occurrence. The aforesaid prosecution story is
proved and is accepted by the Sessions Court as well as the High Court on the
basis of evidence of PW3 Mantara d/o Mani Ram, who was sleeping alongwith her
sister on the fateful night, PW4 Mani Ram and PW5 Nageshari. The Sessions Court
rejected defence version that in the night in question a dacoity was committed
at the house of Mani Ram as absolute false by observing that it looks quite
improbable that a poor Harijan who earns his livelihood by doing Halwahi or Mazdoori
should have been made victim of dacoity.
Learned
counsel for the respondent vehemently submitted that in view of the evidence
led by the prosecution, it is apparent that there was no intention of the
accused to commit murder of the deceased, but it was at the most to commit
rape. Therefore, the High Court rightly held that assault by knife on Mantra and
Nageshari was individual acts of Jhinkoo (respondent) and Deep Chand (deceased)
and the High Court rightly altered the conviction of the respondent from
Section 302 to section 324 IPC. Learned counsel also referred to the decision
rendered by this Court in Mithu Singh vs. State of Punjab, [(2001) 4 SCC 193]
and submitted that even though both the accused were armed with pistol, the
Court has not drawn the inference of common intention as the one shot was fired
by other accused.
In our
view, contention raised by the learned counsel for the respondent-accused is
without any substance. In case of Mithu Singh (Supra) the Court arrived at the
conclusion that there was nothing available on record to draw an inference that
co-accused had gone to the house of deceased with the intention of causing her
death and such intention was known to the accused much less shared by him.
Hence,
Court set-aside the conviction under Section 302/34 IPC. We reiterate that for
common intention, there could rarely be direct evidence. The ultimate decision,
at any rate, would invariably depend upon the inferences deducible from the
circumstances of each case. It is settled law that the common intention or the
intention of the individual concerned in furtherance of the common intention
could be proved either from direct evidence or by inference from the acts or
attending circumstances of the case and conduct of the parties.
Further,
when several persons simultaneously attack with common intent, no distinction
between causing the fatal and non-fatal wounds could be drawn while allocating
the guilt. Negativing similar contention this Court in H.P. Thakore vs. State
of Gujarat [(1976) 4 SCC 640] succinctly
observed:
when a
murderous assault by many hands with many knives has ended fatally, it is
legally impermissible to dissect the serious ones from the others and seek to
salvage those whose stabs have not proved fatal. When people play with knives
and lives, the circumstances that one mans stab falls on a less or more
vulnerable part of the person of the victim is of no consequence to fix the
guilt for murder.
Conjoint
complicity is the inevitable inference when a gory group animated by lethal
intent accomplish their purpose cumulatively. Section 34 IPC fixing
constructive liability conclusively silences such a refind 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 Sumners 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.
(Emphasis
supplied) Now let us apply the aforesaid principles to the facts of the present
case and find out what reasonable inference could be drawn by a prudent man?
Proved facts areaccused were armed with knives; they entered the house of the
complainant dead at night; may be to take revenge of quarrel which had taken
place at day time or because they are rich and head strong persons; on a
refusal to submit and satisfy their sexual lust, accused including the
appellant despite resistance by the girl lifted her and brought her in Osara.
At that stage when deceased was crying and resisting, her father PW4 Mani Ram
and her mother Nageshari PW5 got up and started raising shouts.
Tahir,
one of the accused gave knife blow to the deceased and two others gave knife
blows to PW4 and PW5. From these facts, only reasonable inference which could
be drawn is that common intention of the accused was to ravish the young girl
of poor harijan and in case of resistance to commit murder by inflicting knife
blows. Their adventure in criminality cannot be watered down or nullified by
contending that injuries caused by them have not resulted in death of PW4 and
PW5. In this view of the matter, the High Court materially erred in altering
the sentence of the accused from the offence punishable under section 302/34 I.P.C.
to section 324 I.P.C. by observing that assault by knife to Mani Ram and Nagesari
were individuals act of Jhinkoo (appellant) and Deep Chand and the act of Tahir
in inflicting the knife injury on the chest of the deceased appears to be his
individual act and, therefore, appellant-Jhinkoo cannot be convicted for the
offence punishable under section 302 read with 34 I.P.C. Hence, the impugned
order passed by the High Court cannot be sustained.
In the
result, the appeal filed by the State is allowed, the impugned order passed by
the High Court is quashed and set-aside and the order passed by the Additional
Sessions Judge, Azamgarh convicting the respondent for the offence punishable
under Section 302 read with 34 IPC and Section 307 read with 34 IPC is restored.
Respondent-Jhinkoo
Nai be taken into custody for undergoing the remaining part of his sentence.
So far
as the appeal filed by Jhinkoo is concerned which is delayed by 454 days, even
if we condone the delay, the same would not survive because of his conviction
under Section 302 IPC as stated hereinbefore. Hence, the delay is condoned and
the special leave petition is dismissed.
Ordered
accordingly.
....J.
(M.B.
SHAH) ....J.
Back
Pages: 1 2