Criminal Appeal No.1488 of 2005

21st April, 2016

Petitioner Counsel: Mr. RISHABH SANCHETI, Mr. V.J. FRANCIS, Ms. PADMA PRIYA, Ms. MANU CHATURVEDI, for Mr. DOONGAR SINGH
Respondent Counsel: Mr. S.S. SHAMSHERY, AAG, Mr. AMIT SHARMA, Mr. PRATEEK YADAV, Ms. ANU DIXIT KAUSHIK, Mr. MILIND KUMAR

Cases Cited:
Balu @ Bala Subramaniam & Anr. Vs. State (U.T. of Pondicherry), 2015 ALL MR (Cri) 4537 (S.C.)=2015 SCC Online SC 975 [Para 8]

JUDGMENT

JUDGMENT :- Both the appellants herein are convicted by the Trial Court for the offence under Section 302 read with Section 34 of the Indian Penal Code (for short, "I.P.C.") and given life imprisonment.

2. F.I.R NO. 51 dated 07.05.1995 was lodged in this behalf by one Shri Harbans Singh, who appeared as P.W. 1 during trial. In this F.I.R. three persons were named, who were tried, namely, the two appellants-herein and one Hem Raj Sindhi. Since Hem Raj Sindhi died during the pendency of the trial, the case against him stood abated. The Trial Court, on the analysis of evidence produced before it, held that Mewa Ram (appellant No. 1) had fired the gun shot at Deputy Singh (deceased), as a result of which he died. Insofar as appellant No. 2 Mohan Lal is concerned, he is convicted for the same offence with the aid of Section 34 of the I.P.C, imputing common intention on his part along with appellant No.1, namely common intention of both the appellants to kill Deputy Singh.

3. The High Court has upheld the conviction of both these appellants resulting in dismissal of the appeal that was filed by them against the conviction recorded by the Trial Court. The judgment of the High Court is impugned in these proceedings, questioning the validity thereof.

4. We may state at the outset that insofar as appellant Mewa Ram is concerned, the learned counsel for the appellants very fairly conceded that he was not pressing the conviction of Mewa Ram. Thus, entire focus of his arguments was on the conviction of appellant No.2-Mohan Lal and he endeavors to argue that it was not a case where any common intention could be imputed on behalf of appellant No. 2 as well. Thus, we have examined the case from the afore-mentioned angle.

5. With this short introductory remarks, we refer to the incident that occurred as per the case of the prosecution.

6. As mentioned above, F.I.R. was lodged by Shri Harbans Singh (hereinafter referred to as "the complainant") with Police Station Keshrisinghpur, District Sri Ganganagar, on 07.05.1995 at 12:10 p.m. In his statement he mentioned that he had cultivated the land of Rewa Ram Sindhi on 3rd share basis and in respect of transaction of land Mohanlal son of Hem Raj Sindhi became the surety. On the eventful day, at 8:00 a.m., when the complainant had reached near the flour mill of appellant No. 2, where he and appellant No. 1 both sons of Hem Raj Sindhi were present, he requested them to settle the accounts and pay the money. On this, both the appellants started causing fist blows to the complainant. We would like to reproduce the statement in the F.I.R. in verbatim as under :

"During the said period my nephew Deputy Singh son of Chagad Singh Majbi rescued me then Mewa Ram went running to his house and came back with a gun and told that I would clear your accounts for ever and Mohanlal asked to kill the bastard then suddenly Mewaram fired the gun at Deputy Singh as a result thereof the fire hit on his chest and he fell down on the ground. On hearing the uproar Gurbachan Singh and Charan Singh reached on the site and when they challenged the accused persons then they went away towards their house."

From the aforesaid, it becomes clear that insofar as appellant Mohan Lal is concerned, he had given the exhortation "to kill the bastard". On the same lines, Harbans Singh made the statement as P.W. 1 in the Court as well. Though not stated by the complainant in the F.I.R. or even in the Court, it has come on record that during scuffle that had taken place even appellant Mohan Lal was injured. In fact, the precise version has come on record, that too from the testimony of P.W. 2 (prosecution's own witness) that when he reached the spot after hearing the gun shot he saw Deputy Singh lying on the ground while blood was strained on his clothes and Mohan Lal was lying on the ground on one side. Mohan Lal was crying "killed, killed". In his cross examination, he further stated that deceased Deputy Singh had a lathi in his hand. It appears from the aforesaid evidence that Deputy Singh had also charged appellant Mohan Lal with lathi as a result of which he had fallen down and was also shouting that he was being killed. In the statement of Mohan Lal recorded under Section 313 of the Code of Criminal Procedure, he has specifically mentioned that he was attacked by the deceased with lathi and had suffered some injuries. In fact, he was also medically examined by P.W.3, Dr. Gopaldass, Medical Officer, Incharge P.S.C. Keshrisinghpur, which has affirmed that the appellant Mohan Lal has sustained some injuries. In the light of the aforesaid evidence, it has to be seen as to whether any common intention on the part of Mohan Lal can be attributed, if at all.

7. To re-fill the narration as described by P.W. 1 when he had demanded money due to him from the two appellants, the appellants had started hitting him with fist blows and at that stage Deputy Singh has come out. The two appellants got enraged on the demand of money by the complainant and Mohan Lal exhorted by saying that he should be finished. At that stage, appellant Mewa Ram rushed towards his house and brought the gun which was licenced in the name of their father Hem Raj and he fired at the deceased Deputy Singh. What is to be noticed from the aforesaid is that exhortation given by appellant Mohan Lal was to kill complainant Harbans Singh. There is no evidence, apart from the said exhortation which has been produced by the prosecution to show that the appellant Mohan Lal had stated anything about the killing of the deceased Deputy Singh. This is the fundamental mistake committed by the Trial Court and repeated by the High Court in using the said exhortation on the part of the Mohan Lal insofar as killing of Deputy Singh is concerned. Under what circumstances, Deputy Singh was shot at by Mewa Lal is not discernible from the record when the dispute was between the two brothers (appellants-herein) on the one hand and complainant Harbans Singh on the other. On these facts, it cannot at all be said that there was any common intention of the accused persons to kill Deputy Singh.

8. It is noticed that there is fundamental difference between common intention and joint intention. Section 34 of the I.P.C. talks of common intention which is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention and to fasten with the same liability as that of the main accused who was perpetrator of the crime. The ingredients of common intention to be proved are : (i) there is a common intention on the part of more than one person to commit a particular crime; and (ii) the crime was actually committed by them in furtherance of that common intention. Essence of liability under Section 34 is simultaneous conscious mind of person participating in the criminal action to bring about a particular result. [See : Balu @ Bala Subramaniam & Anr. Vs. State (U.T. of Pondicherry) 2015 SCC Online SC 975 : [2015 ALL MR (Cri) 4537 (S.C.)]]. The aforesaid ingredients in the present case are not satisfied and are completely lacking. In view thereof, we are of the opinion that appellant No. 2 Mohan Lal could not have been convicted under Section 302 read with Section 34 of the IPC.

9. The appeal is, therefore, partly allowed in respect of accused/appellant No.2 Mohan Lal and the conviction against him is set aside. Mohan Lal is on bail. His bail bonds stand discharged. Insofar as accused/appellant No. 1 Mewa Ram is concerned, the appeal qua him is dismissed.

Appeal partly allowed.