Chaman & ANR. Vs.
State of Uttaranchal [2008] INSC 2050 (1 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 409 OF 2007 Chaman
& Anr. ....Appellants Versus State of Uttaranchal ....Respondent
DR. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of the Division Bench of the Hon'ble High
Court of Uttaranchal at Nainital upholding the conviction of four appellants
who had filed Criminal Appeal no.1275 of 2001. One of the appellants Khushi Ram
died during the pendency of the appeal. By the impugned judgment, the High
Court upheld the conviction so far as other appellants Chaman, Vinod Kumar and
Naresh are concerned. The first two are appellants in the present appeal. No
appeal has been preferred by accused Naresh. Each of the accused was convicted
for offence punishable under Section 302 read with Section 34 of the Indian
Penal Code, 1860 (in short the `IPC') and sentenced to imprisonment for life.
Appellant Vinod was additionally convicted for offence punishable under Section
323 IPC and sentenced to imprisonment for six months.
2.
Prosecution
version in a nutshell is as follows:
On 09.07.1985, at
about 5:00 P.M., Jaswant Singh (hereinafter referred to as the `deceased') was
returning to his home, when he met Rani, daughter of Onkar Das and they started
talking to each other. Appellant Chaman, brother of Rani, came from his house
hurling abuses at Jaswant Singh, saying "TU BAHUT BADA SAAND BANTA HAI,
RUK TUJHE MAJAA CHAKHATAA HUN" (You think yourself to be a big bull, wait
I will teach you a lesson). Thereafter, on the same day, at about 1:30 A.M. in
the intervening night of 9th/10th of July, 1985, when Jaswant-deceased, his
father Chamela Ram (P.W. 2), brother Data Ram (P.W. 1), were sleeping in the
verandah of their house, they woke up on hearing the barking of their dog and
flashed their torches and saw that appellants Naresh, (armed with a gun),
Vinod, (armed with a KHUKRI-a sharp edged weapon), Chaman, (armed with SAINTA-a
sharp edged weapon) and Khushi Ram, (armed with a country made pistol), entered
their house. Appellant Chaman, asked Jaswant to stand up. On which, Jaswant
along with Data Ram, got up from their cots. Meanwhile, Chamela Ram (P.W.2)
raised an alarm "BACHAO! BACHAO!! (Save! Save!!). Naresh pointed the gun
at him. Chamela Ram caught hold the barrel of the gun to save himself. On this,
appellant Vinod gave him blows with the butt of Khukri. Meanwhile, appellant
Chaman struck a blow with SAINTA (a sharp edged weapon) on the person of
Jaswant, who ran to save his life. However, Jaswant could not go far and fell
down near the house of Nain Singh. By then, witnesses Bhuru (P.W.5), Ramu, Isam
(P.W.6), Nakli (P.W.7) and Nain Singh had reached there. They also flashed
their torches and saw that appellant Vinod, struck a blow with the Khukri on
injured Jaswant. Thereafter, all the four appellants ran away from the place of
occurrence. Jaswant Singh, succumbed to the injuries on the spot, near the
house of Nain Singh. A written report (Ext. A-1) of the incident was got
scribed by Raj Kumar (P.W. 4) by Chamela Ram (P.W. 2), which was lodged against
all the four accused persons with the police station Doiwala on 10.07.1985, at
about 5:30 A.M. The distance between the place of occurrence (Chandi
Plantation) and the police station is 15 kms.
On the basis of said
report (Ext. A-1), its check report (Ext. A-18) was prepared at the police
station and necessary entry was made in the general diary, a copy of which is
Ext. A-17. Crime No.117 of 1985 was registered against all the four accused
persons, for the offence allegedly committed by them under Section 302 of
I.P.C. P. W. 8 H.C. Panda, Sub Inspector, after aforesaid report was lodged
with the police station, proceeded to the place of occurrence on 10.07.1985 and
took the dead body of Jaswant in his possession and prepared the inquest report
(Ext. A-4). He also prepared site plan (Ext. A-5), filled police form No.13
(Ext. A-6), prepared letter (Ext. A- 7) addressed to Chief Medical Officer,
requesting for post mortem examination of the dead body. H.C. Pandey,
Sub-Inspector (P.W.8) also took blood stained `BANIYAN' (undershirt) Ext.8 in
his possession and prepared memo (Ext. A-9). He further took into his
possession simple soil (Ext. 12) and blood stained- soil (Ext. 13) and prepared
memo (Ext. A-10).
Autopsy was conducted
by Dr. A.S. Khanuja (P.W. 11) on the very day i.e. on 10.07.1985 at 4:00 P.M,
on the dead body of the deceased, prepared post-mortem examination report (Ext.
A-26) and opined that the death has been caused due to shock and haemorrhage,
resulting from injury over the lung. Investigating Officer also recovered the
torches, in the light of which the crime was witnessed by the witnesses. After
recording the statements of the witnesses and on completion of the
investigation, the Investigating Officer submitted charge sheet (Ext. A25)
before the Magistrate concerned.
Since accused persons
pleaded innocence, trial was held.
3.
Relying
on the evidence of eye witnesses PWs 1, 2, 5 and 7 the Trial Court found the
accused persons guilty and sentenced them as aforesaid.
4.
In
appeal, the main ground was that the offence has not been made out in respect
of the accused persons. It was further stated that one of the accused persons
was a juvenile. It was also submitted that Section 34 has no application.
5.
Reliance
is placed on a certificate dated 20.8.2008 to contend that one of the accused
persons was a juvenile. The same has not been brought on record earlier. In any
event, the certificate came into the existence much after the completion of the
trial and disposal of the appeal by the High Court. We, therefore, are not
inclined to take note of the certificate which is pressed into service.
6.
Section
34 has been enacted on the principle of joint liability in the doing 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. Direct proof of
common intention is seldom available and, therefore, such intention can only be
inferred from 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 v. State of Punjab (AIR 1977 SC 109), 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.
7.
As
it originally stood, Section 34 was in the following terms:
"When a criminal
act is done by several persons, each of such persons is liable for that act in
the same manner as if the act was done by him alone."
8.
In
1870, it was amended by the insertion of the words "in furtherance of the
common intention of all" after the word "persons" and before the
word "each", so as to make the object of Section 34 clear. This
position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118).
9.
The
Section does not say "the common intention of all", nor does it say
"and intention common to all". Under the provisions of Section 34 the
essence of the liability is to be found in the existence of a common intention
animating the accused leading to the doing of a criminal act in furtherance of
such intention. As a result of the application of principles enunciated in
Section 34, when an accused is convicted under Section 302 read with Section
34, in law it means that the accused is liable for the act which caused death
of the deceased in the same manner as if it was done by him alone. The
provision is intended to meet a case in which it may be difficult to
distinguish between acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was
taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of
Andhra Pradesh (AIR 1993 SC 1899), Section 34 is applicable even if no injury
has been caused by the particular accused himself. For applying Section 34 it
is not necessary to show some overt act on the part of the accused.
10.
The
above position was highlighted recently in Anil Sharma and Others v. State of
Jharkhand [2004 (5) SCC 679], in Harbans Kaur v. State of Haryana [2005(9) SCC
195] and Amit Singh Bhikamsingh Thakur v. State of Maharashtra [2007(2) SCC 310].
11.
When
the factual scenario is considered in the background of legal position, there
is no merit in this appeal. Looked from any angle the appeal is without merit,
deserves dismissal, which we direct.
.................................................J.
(Dr. ARIJIT PASAYAT)
...............................................J
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