State of Punjab Vs.
Bakhshish Singh & Ors. [2008] INSC 1770 (17 October 2008)
Judgment
(Criminal Appeal No.
1153 of 2002) OCTOBER 17, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA,
JJ.] The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.
1.
Challenge
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court directing acquittal of respondents Bakhshish Singh, Balraj Singh and
Gurmeet Kaur while altering the conviction of respondent Balbir Singh from one
under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') to one
under Section 304 Part I IPC. Learned Additional Sessions Judge Gurdaspur, had
convicted each of the respondents for offence punishable under Section 302 read
with Section 34 IPC.
2.
Prosecution
version as unfolded during trial is as follows:
Agricultural lands of
Kabul Singh (PW4) and that of Mangal Singh (hereinafter referred to as the
`deceased'), his nephew, and that of respondent-Bakhshish Singh and others
adjoin each other and are located in the same vicinity in village Bhoa and fall
within the jurisdiction of Police Station Sadar, Pathankot, District Gurdaspur.
The land of Darshan
Singh is also located nearby. About one week before the occurrence Darshan
Singh was irrigating his land with canal water. The canal water over-flowed
through the Khal including the fields of Kabul Singh PW4 and entered into the
fields of accused Bakhshish Singh wherein wheat crops were sown. Though this
canal water had come, perhaps, from the field of Darshan Singh to the fields of
the appellants but the accused were feeling that the canal water had come
through the fields of deceased Mangal Singh. So, it was in this wake that on
1.5.1994, around 9.00 A.M. while Kabul Singh PW4 and his nephew deceased Mangal
Singh were returning from the fields along with Swinder Kaur (PW5), mother of
Mangal Singh, the accused persons, namely, Bakhshish Singh and Balbir Singh
armed with a dang each, Balraj Singh armed with Chhavi were found standing on
the pucca culvert on the metalled road near the house of accused Bakhshish
Singh. Gurmeet Kaur raised a lalkara saying that Kabul Singh and Mangal Singh
should not be allowed to escape as they had damaged their crops. Bakhshish
Singh and Balbir Singh took Mangal Singh in their grip and threw him on the
ground while accused Balraj Singh at the instigation of his mother Gurmeet kaur
inflicted a Chhavi blow on the head of Mangal Singh and it is only when the
close relations of the deceased prayed for sparing the life of Mangal Singh,
the accused persons ran away from the scene of occurrence. Mangal Singh was
removed to Civil Hospital, Pathankot from where he was referred to C.M.C.
Ludhiana.
The aforesaid Mangal
Singh breathed his last due to injuries on the way of Ludhiana. The dead body
was brought to Civil Hospital, Pathankot. The statement Ex. PJ of Kabul Singh was
recorded by SI Jarnail Singh PW8 at 7.30 P.M. on 1.5.1994 and on its basis
formal F.I.R. Ex. PJ/2 was recorded at 7.55/8.55 P.M. on 1.5.1994. The special
report reached the learned Ilaga Magistrate at 5.05 A.M. on 2.5.1994.
Thereafter SI Jarnail Singh (PW8) went to Civil Hospital, Pathankot and
prepared inquest report Ex.PL and sent the dead body for postmortem. On
2.5.1994, the Investigating Officer went to the scene of occurrence and
prepared rough site plan Ex.PO with marginal notes. He took into possession
five copies of sale deeds produced by Kabul Singh vide memo Ex.PK. Accused
Balbir Singh, Bakhshish Singh and Balraj Singh were arrested on 5.5.1994. In
pursuance of his disclosure statement on Ex.PP, accused Balraj Singh got
recovered Gandasi Ex. P1 which was taken into possession vide memo Ex.PR.
Accused Gurmeet Kaur was also arrested.
Dr. Sunil Ghai (PW2)
conducted autopsy on the dead body of deceased Mangal Singh on 2.5.1994 and
found the following injury:- Lacerated wound 2 cm x 0.5. cm stitched present on
the middle of the head approximately 2 cm. Left to the mid line. On dissection,
underlying parietal bone was fractured. S/C tissue was lacerated and there was
extradural and sub dural haematoma present. Brain tissue underlying was
lacerated.
In the opinion of the
doctor, the cause of death was due to the injuries to the vital organ brain
caused by injury No.1. The injuries were ante mortem in nature and sufficient
to cause death in the ordinary course of nature. Ex. P.C. is the copy of the post
mortem report.
After completion of
investigation, charge sheet was filed and since the accused persons pleaded
innocence, trial was held. The trial court placed reliance on the evidence of
PW 4, the complainant, PW 5 who claimed to be an eye witness to hold the
accused persons guilty.
In appeal the basic
stand of the accused persons was that there was absolutely no evidence so far
as accused Bakhshish, Balbir and Gurmeet are concerned. So far as Gurmeet is
concerned it is stated that she is stated to have only raised a lalkara and
that so far as accused Bakhshish and Balbir are concerned they are supposed to
have held the accused in their grip while accused Balraj inflicted a single
blow. The stand of the prosecution was that by application of Section 34 IPC
each one of them had been rightly found guilty. The High Court found that the
evidence did not establish the roles purportedly played by Gurmeet, Balbir and
Bakhshish. It also noted that only a single blow was given by Balraj and that
too in course of a sudden quarrel. Accordingly as noted above Gurmeet, Balbir
and Bakhshish were acquitted while the conviction of Balraj was confirmed.
3.
In
support of the appeal learned counsel for the appellant submitted that the High
Court ought to have held that Section 34 has full application to the facts of
the case. It should not have altered conviction so far as accused Balbir is
concerned.
4.
Learned
counsel for the respondents on the other hand supported the judgment of the
High Court.
5.
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.
6.
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."
7.
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).
8.
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.
9.
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].
10.
The
High Court analysed the evidence of PWs 4 & 5 to come to the conclusion
that the role of the acquitted accused persons do not really attract Section 34
IPC. So far as alteration of conviction is concerned though in all cases it
cannot be said that when only a single blow is given Section 302 IPC is made
out yet it would depend upon the factual scenario of each case; more
particularly the nature of the offence, the background facts, the part of the
body where the injury is inflicted and the circumstances in which the assault
is made.
11.
In
the instant case prosecution version itself shows that there were altercations.
In that view of the matter the High Court was justified in altering the
conviction from Section 302 to Section 304-I IPC.
12.
We
find no merit in this appeal, which is accordingly dismissed.
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