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«Raghbir Chand & Ors.. Appellant(s) Versus State of Punjab. Respondent(s) JUDGMENT RANJAN GOGOI, J. Aggrieved by the affirmation of the conviction ...»

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2028 OF 2009

Raghbir Chand & Ors.... Appellant(s)

Versus

State of Punjab... Respondent(s)

JUDGMENT

RANJAN GOGOI, J.

Aggrieved by the affirmation of the conviction and sentence of the appellants made by the High Court of Punjab & Haryana this appeal has been filed upon grant of special leave under Article 136 of the Constitution. Specifically, the appellant No. 4 Kamal Kumar has been convicted under Section 302, Section 324 and Section 323 read with Section 34 of the Indian Penal Code. He has been sentenced to undergo RI for life for the offence under Section 302 IPC whereas for the offences under Sections 324 and 323/34 IPC he has been sentenced to undergo RI for 2 years and 1 year respectively. Insofar as appellants 1, 2 and 3 are concerned, they have been found guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo RI for life. The aforesaid accused appellants have also been found guilty of the offences under Section 324 read with Section 34 and Section 323 of the Indian Penal Code and have been sentenced to undergo RI for 2 years and 1 year respectively.

2. The prosecution case, which has been held to be established by the learned courts below, is to the effect that on 14.1.1991 at about 7.00 a.m. when PW-2 Ram Singh and PW-4 Surinder Kumar (brothers) had gone to the fields to answer the call of nature, in front of the house of the appellant No. 1 Raghbir Chand, the four accused persons had assembled.

According to the prosecution, while the appellant No.1, Raghbir Chand, was armed with a Dang, appellant No.2, Varinder Kumar, was armed with an iron rod whereas appellants 3 and 4, Vijay Kumar and Kamal Kumar, were armed with an iron fork and a knife respectively. According to the prosecution, appellant No. 1 Raghbir Chand exhorted the other accused that PW-2 Ram Singh and PW-4 Surinder Kumar should be taught a lesson for having abused the appellant Raghbir Chand the previous evening. Thereupon, according to the prosecution, appellant No. 2 Varinder Kumar gave a blow from the iron rod in his hand which was aimed at the head of PW-4 Surinder Kumar. Appellant No. 4 Kamal Kumar is alleged to have given a knife blow on the left flank of PW-4 whereas appellant No. 1 Raghbir Chand, it is alleged, gave a dang blow on the right elbow of PW-2 Ram Singh. It is further alleged that appellant No. 4 Kamal Kumar gave a knife blow on the head of PW-2 Ram Singh. The further case of the prosecution is that at this stage deceased Rajinder Kumar and PW-5 Sushil Kumar (brothers of PW-2 and PW-4) came to the place of occurrence whereupon the appellant No. 4 gave 4-5 knife blows in the abdomen of deceased Rajinder Kumar who fell down on the ground. The prosecution had further alleged that appellant No.

3 Vijay Kumar gave blows from the iron fork on the forehead of PW-5 Sushil Kumar whereas appellant no.1 Raghbir Chand gave fist

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Amritsar on 14.1.1991.

3. Of the 9 witnesses examined by the prosecution, PW-2 Ram Singh, PW-4 Surinder Kumar and PW-5 Sushil Kumar are the injured

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examinations prepared and signed by the aforesaid PW-1 have been exhibited by the prosecution. Also exhibited are the medical reports prepared by PW-1 upon examination of appellants No. 1, 2

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accused persons on them as well as on the deceased with the weapons that they were armed with. The evidence of PWs 2, 4 and 5 stands fully corroborated by the evidence of PW-1 who found as

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34 of the Indian Penal Code is legally unsustainable. Insofar as appellant No. 4 Kamal Kumar is concerned, learned counsel has urged that the facts proved and established, at best, would go

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have also been highlighted by the learned counsel to contend that a mutual fight between the parties had occurred. Learned counsel has further pointed out that while the appellant No.1, Raghbir Chand, had served a period of nearly 2-1/2 years in custody, the appellants 2 and 3 have undergone over 7 years of custody whereas appellant No. 4 is in jail for more than 10 years.

6. Mr. V. Madhukar, learned Addl. Advocate General appearing for the State of Punjab on the other hand submits that the evidence of PWs 2, 4 and 5 clearly establishes that the accusedappellants were acting in concert and one of the victims of the crime Rajinder Kumar had died in the course of the incident.

According to learned counsel, there is no way as to how the appellants can escape their liability under Section 34 of the Indian Penal Code. Learned counsel has also pointed out that the injuries suffered by the accused-appellants, as evident from

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weapons in their possession. While the aforesaid assault was being committed the deceased and PW-5 Sushil Kumar came to the spot to rescue their brothers PW-2 Ram Singh and PW-4 Surinder

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assault on Rajinder Kumar, i.e., the deceased who was lying on the ground. The evidence on record would also go to show that the deceased was initially treated in the Civil Hospital at Pathankot by PW-1 Dr. R.K. Khanna and was thereafter referred to

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of inference to be drawn from the facts and circumstances of each case. The above are the principles that have been laid down in a long line of decisions of this Court, few of which can be illustratively referred to hereinbelow.

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specifically or by inference, in the facts and circumstances of the case. (Vide Hamlet v. State of Kerala [2003 (10) SCC 108), Pichai v. State of T.N. [2005 (10) SCC 505] and Bishna v. State of W.B. [2005 (12) SCC 657)

52. In Gopi Nath v. State of U.P. [2001 (6) SCC 620] this Court observed as under:

“8. … Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action—be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence.

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. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.”

53. In Krishnan v. State [2003 (7) SCC 56] this Court observed that applicability of Section 34 is dependent on the facts and circumstances of each case. No hard-and-fast rule can be made out regarding applicability or non-applicability of Section 34.

54. In Girija Shankar v. State of U.P. [2004 (3) SCC 793] it is observed that Section 34 has been enacted to elucidate the principle of joint

liability of a criminal act:

“9. 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.”

55. In Virendra Singh v. State of M.P.[2010 (8) SCC 407] this Court observed that:

“42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime.

Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34.”

56. Section 34 can be invoked even in those cases where some of the co-accused may be acquitted, provided it can be proved either by direct evidence or inference that the accused and the others have committed an offence in pursuance of the common intention of the group. (Vide Prabhu Babaji Navle v. State of Bombay [AIR 1956 SC 51])

57. Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual’s participation in the act. Common intention means that each member of the group is

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maintained. We, therefore, affirm the said part of the judgment of the High Court along with the sentences imposed.

10. This will take us to a consideration of the case of the

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already been held by us to be credible and acceptable. We will, therefore, have to proceed on the basis that the said appellant had inflicted 4-5 knife blows on the abdomen of the deceased.

Learned counsel for the appellant has contended that even if the said evidence is accepted in its entirety no offence under Section 302 IPC is made out against the 4th accused-appellant.

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11. A decision of this Court of somewhat old vintage (State of Andhra Pradesh Vs. Rayavarapu Punnayya & Anr.4) may be renoticed to remember what would be the correct approach in dealing with the question whether an offence is murder or culpable homicide not amounting to murder. The following passages from the

aforesaid decision may be usefully noticed hereunder:

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12. We have given our anxious consideration to the contention raised on behalf of the accused-appellant. There can be no manner of doubt that the death of Rajinder Kumar was occasioned by the assault committed by the accused-appellant No.4 in the abdominal region of the deceased with a knife. A person inflicting 4-5 knife blows on a vital part of the body i.e.

abdomen cannot but be attributed with the requisite intention to cause death or alternatively with the intention of causing such bodily injury as is likely to cause the death of the victim.

Having reached the aforesaid conclusion, the next question that has to be determined is whether the act of the accused-appellant will come under any of the exceptions enumerated under Section 300, particularly the 4th exception, as contended by the learned

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assault on the deceased was committed without any premeditation and also in a sudden fight and even if it is assumed that the said act was in the heat of passion, what cannot be lost sight

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seriously consider the applicability of the latter part of the 4th exception to Section 300 to the present case, namely, that the appellant had not taken undue advantage or had not acted in a cruel or unusual manner. In the present case, no such conclusion can be reasonably reached in view of the repeated blows inflicted by accused-appellant No. 4 on a vital part of

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opinion that the correct conclusion in the present case would be that the accused-appellant No. 4 had the requisite intention if not of causing death, at least, of causing such bodily injury which was likely to cause death. The acts attributable to the accused-appellant No.4 do not also attract any of the exceptions enumerated under Section 300 IPC. We, therefore, affirm the conviction and the sentence of the accused-appellant No. 4 under Section 302. Insofar as the conviction of the said accusedappellant for the offences under Sections 324 and 323 read with Section 34 is concerned, we will have no hesitation in affirming the same.

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conviction of appellants No. 1, 2 and 3 under Section 302 read with Section 34 IPC is set aside while their conviction under Section 324 with the aid of Section 34 IPC and Section 323 and the sentences imposed upon them are maintained. The conviction of the appellant No. 4 under Sections 302 and 324 and 323/34 IPC as well as the sentences imposed are maintained. If the accusedappellants 1, 2 and 3 have already undergone the sentence imposed on them for the offences under Section 324 read with Section 34 IPC and Section 323 IPC they be set at liberty unless their custody is required in connection with any other case.

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