Hardeep Singh & Ors. v. State of Haryana

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of a Division bench of the Punjab & Haryana High -r Court dismissing the appeal filed by the appellants. By a com-mon judgment two appeals and one criminal Revision were dis-posed of. Four persons faced trial for alleged commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). One of them i.e. Gurcharan Singh was acquitted by the learned Sessions Judge, Sirsa. State questioned his acquittal. Similarly the com-plainant, PW? also filed the revision petition seeking enhance-ment of the sentence of convicted accused persons to death sentence, apart from questioning of acquittal of Gurcharan Singh. By the common judgment the High Court dismissed the Criminal Appeal filed by the State and the Criminal Revision filed by the complainant while dismissing the appeal filed by the appellants also.

¶2Background facts in a nutshell are as follows:

Sukhdev Singh (PW-7) lodged FIR at 5.30 PM on 3.11.1994 that on 3.11.1994 at about 4.30 PM, he was going with his mother Pritam Kaur to visit the house of his father's sister on the eve of Diwali festival. At that time, his father Amrik Singh (hereinafter referred to as 'deceased') was going about 10 paces ahead of them on the same foot way for his domestic work. As soon as deceased reached in front of the house of one Parlhand Singh son of Karnail Singh, then all of a sudden, acquitted accused Gurcharan Singh, armed with gandasi, Hardeep Singh, armed with dattar, Harjinder Singh armed with gandasi and Jaswinder Singh also armed with gandasi, emerged from a street known as schoolwali gali. Acquitted ac-cused Gurcharan Singh raised a lalkara (exhortation) that "Aaj lsko Bach Kar Jane Mat Dena". Soon thereafter, his sons ap-r pellants Harjinder Singh and Jaswinder Singh inflicted gandasi

injuries on the deceased with an intention to commit his mur-der. They gave gandasi blows, which landed on the legs of the deceased. As a result, the deceased fell down on the road. His turban also went off his head and fell on the ground. There-after accused appellant Hardeep Singh gave dattar blow, hit-ting the deceased on his head. He was followed by accused ..., appellant Harjinder Singh, who also inflicted a gandasi blow on

the head of the deceased. Thereafter, acquitted respondent Gurcharan Singh and accused appellant Jaswinder Singh caused further injuries with gandasi on the arms of the deceased. Complainant Sukhdev Singh and his mother Pritam Kaur raised a hue and cry saying "Mar Dia Mar Dia". After that the deceased was dragged by all the four accused inside the house of ac-cused-appellant Harjinder Singh. Complainant Sukhdev Singh and his mother Pritam Kaur followed them and raised hue and cry. On hearing their noise all the aforesaid four accused, namely, Gurcharan Singh, Hardeep Singh, Harjinder Singh and Jaswinder Singh, ran away with their weapons towards the vii-lage side. The complainant and his mother looked at the de-ceased who had succumbed to the injuries. The complainant, leaving behind his mother near the dead body at the spot, went to the police post to lodge a report. His statement was recorded by Kartar Singh, lncharge, Police Post, Kariwala, on 3.11.<994 itself. On receipt of ruqa (Ex.PB), a formal FIR (Ex.PB/1) under Sections 302/34 IPC was registered by ASI Baljit Singh (PW3) at Police Station, Ding, at 6.50 PM. He sent a special report I'

through Constable Shoop Singh (PW-5) on the same day to JMIC, Sirsa. A detailed inquest report (Ex. PD /4) was prepared on 3.11.1994 itself by ASI Kartar Singh (PW 9). Dr. Narinder Chaudhary (PW 4) conducted the post mortem (Ex.PD) of the deceased on 4.11.1994 at about 10.15 AM. He found as many as 14 injuries on the dead body. They are as under:

"1. A 'V' shape incised wound each limb measuring 8

ems x 2cms x brain deep over the left parietal region 8 ems away from the pinna of the left ear. On dissection, there was fracture of the left parietal bone. Infiltration was present underlying the injury.

¶2An incised wound of 6 ems x 2· ems x scalp deep

over the top of the scalp. On dissection, infiltration was present and there was no fracture.

¶3An incised wound of 8 ems x 1.5 cm x muscle deep,

anterior and middle third to the right leg. Corresponding cut was present in the kachha. On dissection, underlying bone (tibia) was fractured and infiltration was present.

¶4An incised wound of 4 tens x 1.5 ems x bone deep.

Lateral aspect of the right knee joint.

¶5Two abrasions contusions measuring 3 x 2 ems, 2.5

ems x 2.5 ems over the anterior aspect of right knee joint. On dissection of injuries no.4 and 5 right patelar bone was fractured. Infiltration was present.

¶6Incised wound 11 ems in length, anterior posteriorly

(through and through) from the root of the right little finger to the root of the right thumb. Underlying bone, muscle tendons vessels and nerves were cut. 7. Incised wound of 6cms x 1.5 ems muscular deep

over the posterior and middle to the right fore-arm. Underlying bones were fractured. Infiltration was ..., present.

¶8Contusion of 3 ems x 2 ems over the top of the left

shoulder joint. Infiltration was present underlying the tissue.

¶9Two contusions varying in size. Posterior to the left

elbow.

..,, 10. Contusion of 4 ems x 2 ems, posterior and middle to

the left fore-arm. Underlying bone (ulna) was fractured and infiltration was present.

¶11Abrasion contusions, four in number, varying in size,

dorsum of the left hand. On dissection infiltration was present.

¶12Contusion of 3 ems x 1 cm on the left knee joint. 13. Incised wound of 5.5 ems x 1.5 ems x bone deep, ..., anterior and middle third to the-left leg. Underlying

bone was fractured. Infiltration was present.

¶14Contusion of 2.5 ems x 2 ems over the lower third to

the sternum. Infiltration was present under the injury." 3. After completion of the investigation, charge sheet was filed. Since the accused persons pleaded innocence, the trial was held. As noted above, the appellants were convicted while Gurcharan Singh was acquitted. Appeal was filed by the State and the present appellants and the revision was filed by the complainant.

¶4Before the High Court the basic stand taken by the ap-pellants was that the evidence of PWs 7 & 8 do not inspire confidence. The High Court did not find any substance in the appeal filed by the appellants and held that the evidence of PWs 7 & 8 sufficiently established the accusations.

¶5In support of the appeal, learned counsel for the appel-lant submitted that the evidence of PWs 7 & 8 does not inspire confidence, particularly when they are relatives of the deceased. Additionally, even if the prosecution version is accepted in toto, the conviction for offence punishable under Section 302 read with Section 34 IPC cannot be maintained. Plea that the FIR was ante timed was also taken with reference to the time of inquest. The basic plea is regarding the applicability of Sec-tion 34 IPC. It is pointed out that the Doctor has opined that only injury no. 1 alone could have resulted in the death.

¶6Though learned counsel for the appellants submitted that the evidence of P'Ns 7 & 8 does not inspire confidence, no discrepancy in their evidence could be focused to discard their evidence.

¶7We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution ver-sion. Relationship is not a factor to affect credibility of a wit-ness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent per-son. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach y and analyse evidence to find out whether it is cogent and cred-ible.

¶8In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to 'I implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

¶9The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) ..., was also relied upon.

¶10We may also observe that the ground that the witness being a close relative and consequently being a partisan wit-ness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their. testimony, we know of no such rule. If it is grounded on the reason th.at they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - ~Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." 11. Again in Masalti and Ors. v. State of UP (AIR 1965 SC 202) this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ....... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

¶12To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and Ors v State of Orissa (2002 (8) SCC 381).

¶13The above position was also highlighted in Babula/ Bhagwan Khandare and Anr v. State of Maharashtra [2005(10) SCC 404] and in Salim Saheb v. State of MP (2007(1) SCC 699).

.... 14. 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 sel-dom 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 is that if two or more persons intention-ally 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 iden-tically similar. The acts may be different in character, but must y-' have been act!JP.)ed by one and the same common intention in order to attract the provision.

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¶15The 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 ac-cused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enun- .... ciated in Section 34, when an accused is convicted under Sec-

'I' tion 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. Pu/la 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.

¶16We find that the evidence of PWs 7 & 8 clearly estab-lishes the roles played by the Hardeep Singh and Harjinder Singh. It is also clear from the prosecution evidence that on hearing of the exhortation of the acquitted Gurcharan Singh, -l Jaswinder Singh and Harjinder Singh had given blows on the

legs of the deceased. After he fell down, Hardeep Singh gave blow on the head. Similarly Harjinder Singh also gave blows on the head. After the deceased fell down Jaswinder Singh did not attack on any vital part of the deceased's body. He assaulted on the arm of the deceased. In the aforesaid circumstances, while appeal filed by the accused appellants Hardeep and Harjinder Singh is dismissed, the appropriate conviction of Jaswinder Singh would be under Section 304 Part II IPC. His conviction is accordingly altered. Custodial sentence of eight years would meet the ends of justice.

¶17The appeal is allowed to the aforesaid extent.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 468 of 2007

From the Judgment and Order dated 6.1.2006 of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 198-DBA of 1997.

Kumud Lata Das for the Appellant.

TV George for the Respondent.