IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 42 of 2002 Judgment reserved on 17.4.2009 Date of decision: 15 .5. 2009 Mohinder Kumar and others …..Petitioners Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellants: Mr. N.K. Sood, Advocate For the respondent : Mr. J. S. Guleria, Assistant Advocate General. Surinder Singh, J. In this criminal appeal, the challenge has been made by the appellants against their conviction and sentence passed under Section 307 read with Section 34 of the Indian Penal Code, by the learned trial court in Sessions Trial No.12 of 1999, decided on 16.1.2002, whereby each of the appellants were ordered to undergo the rigorous imprisonment for a period of two years and to pay a fine of Rs. 2000/- to each of the appellants with a default clause. The background facts of the case are:- On 20.1.1998, a person was found in an injured condition by the side of the stairs 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - leading to Mohalla ‘Pucca Tala’. The Police was informed. The injured was taken to the Hospital for his treatment. He was unconscious. His identification could not be ascertained. On 17.1.1998, he regained his senses however, was unable to speak, but he allegedly wrote the names of the appellants on his note book describing that they had given beatings to him. PW-2 Dharam Chand, father of the injured came to know that his son was admitted to the Hospital at Chamba. He went there and found his son there unconscious. When regained his senses, he noticed that he could not speak, but wrote the names of the assailants on Ext. P-1 to Ext. P-7. Thereafter he moved an application Ext. P-A to the Deputy Commissioner, Chamba which was referred to the Police for registration of the case. The police took into possession the note book wherein the names of the appellants were written. During the investigation of the case, police on the basis of the statements of the witnesses, found that the injured aforesaid was going to muhalla ‘Pucca-Tala’ to impart tuition. On the way, he met the appellants. All of them took tea in the Dhaba of PW-3 Ashok Kumar. Thereafter they went together towards ‘Pucca- Tala’. - 3 - On the way, his co-accused Mahinder Kumar started abusing him. The injured objected to it. On this, he told that he was joking but when they reached near the stairs leading the ‘Pucca-Tala’, appellant Manoj and Mahinder both caught hold of him from his arms and appellant Ramesh gave blows on his right side of the head with some heavy object, which he could not see and appellant Mohinder Kumar started giving him beatings and he was thrown down in the small drain and he fell unconscious. Thereafter, he is alleged to have regained consciousness on 17.2.1998 and found him in the Hospital at Chamba. The police took into possession the medical treatment summery and presented the challan against the appellants under Sections 307, 325 read with Section 34 of the Indian Penal Code. The motive for causing the alleged injury was alleged that appellant Ramesh Kumar is brother of the complainant in relation and he had abducted his niece and his injured son used to object to such relationship which caused annoyance to him. Finding a prima facie case against the appellants under Section 307 read with Section 34 of the Indian Penal Code, they were charge sheeted. The appellants pleaded not guilty and claimed trial. - 4 - To prove its case, prosecution examined its witnesses and appellants were also examined under Section 313 of the Code of Criminal Procedure. The case of the appellants was denial simplicitor. When called upon to enter into defence, they did not lead any evidence in defence. At the end of the trial, they were convicted and sentenced, as aforesaid. Shri N.K. Sood, learned counsel for the appellants has vehemently argued that the learned trial court has misconstrued the evidence on record and ignored the major and material contradictions in the statements of the witnesses. He further contended that there has been unreasonable delay in lodging the FIR which was lodged after due deliberations. It is further argued that writings of the injured were cooked-up against the appellants and otherwise also, in the statements of PWs, there are material improvements with respect to the identity of the appellants. The object with which the injured was hit was also not recovered. Thus, learned trial court wrongly passed the judgment of conviction against the appellants on the basis of contradictory and infirm evidence. On the other hand, Shri J.S. Guleria, learned Assistant Advocate General has supported - 5 - the impugned judgment of conviction and sentence passed by the learned trial court and further argued that the statement of the injured itself is sufficient to sustain the conviction of the appellants and that the delay in lodging the FIR was attributable to the fact that the injured remained unconscious for a sufficient long time on account of the head injury sustained by him and there was no other witness of the occurrence. There is also no contradiction or improvement in the statement of the witnesses rather it gives a natural story which had, in fact occurred and the learned trial court did not commit any error in putting reliance upon them. To appreciate the rival contentions of the parties, it will be useful to keep brief account of the statement to what the prosecution witnesses have stated during the trial to prove the case. According to the injured PW-1 Man Singh, on 20.1.1998 at about 7.45 a.m. he was going from village ‘Parel’ to ‘Pucca-Tala’ to give tuition to the children. When he reached ‘Baloo Bridge’, he met the appellants there. They took tea in the Tea Shop of Ashok Kumar PW-3. Thereafter they started going towards ‘Pucca-Tala’. On reaching ‘Sahoo’ Road, appellant Mohinder Kumar hurled abuses to him but he reprimanded not to do so. When they reached near ‘Bhagot’ bridge near - 6 - ‘Baloo’, the appellant Mohinder again started abusing. When he raised the strong objection, he told that he was doing so in a light vein. But when they reached near the place where the stairs starts below ‘pucc-Tala’, accused Manoj Kumar and Mohinder Kumar caught hold of him from his arms and the appellant Ramesh Kumar gave a blow on right side of his head with some heavy object, to which he could not see. Appellant Mohinder Kumar struck a fist blow on his face and all of them twisted his arms and legs and threw him down in the small drain. He fell unconscious and regained his consciousness on 17.2.1998 and found himself in the District Hospital Chamba. It was then he came to know that one lady Safai Karamchari from village Sarol who could recognize him admitted him in the said Hospital. On regaining consciousness, he could not speak but told about the occurrence to his father through gestures and also wrote the names of the appellants on the note-book being maintained by the Hospital in connection with his treatment, in the presence of his relatives and medical officer. He identified Note book Ext. P-1 and writings Ext. P-1/1 to Ext. P-1/7. He further stated that appellant Ramesh Kumar had abducted the daughter of his maternal uncle Sheela Devi without solemnizing any marriage and he used to reprimand her not to involve herself in such - 7 - immoral acts therefore, the appellant had nourished ill-will against him. In cross-examination, he stated that after taking tea, all of them went together towards ‘Baloo-Bridge’. He admitted that it was a busy road and there are also houses of Safai Karamchari nearby. He was confronted with his statement recorded under Section 161 of the Code of Criminal Procedure (Ext. D-A) wherein it was not mentioned that his hands and legs were twisted by the appellants, as stated above, but it was found recorded that the appellants had caught hold of him from his arm. The fact of throwing him in a small drain by the appellants in his statement, as aforesaid was also not found mentioned. He further stated that on regaining consciousness, he had written on the note-book Ext. P-1. He further stated that Ramesh appellant was behind him and was not visible when he had hit him with some object. The above contradictions with which the witnesses was confronted are of a minor nature, it does not shake the foundation of the case. Although PW-3 Ashok Kumar though did not support the case of the prosecution but admitted that the appellants along with injured (PW-1) had taken tea in his shop in the morning and did not know where they had gone thereafter. According to him, he came to know after 2/3 days that PW-1 Man Singh - 8 - was found in an unconscious in ‘Pucca Tala’ area of Chamba Town. He knew the injured as he had been usually visiting his shop to take tea. He wrongly stated in his cross-examination that after about 2/3 days, Man Singh along with police had visited his shop and told that appellants had given beatings to him because as per the bed-head ticket of the injured, he was unconscious and remained admitted in the hospital. PW-2 Shri Karam Chand father of the injured stated that he came to know on 20.1.1998 at about 2.30 p.m. that his son was injured and was in an unconscious condition, admitted in the hospital. On visiting the hospital, he found it to be correct. He stated that he remained in the same condition for about 14 days. On regaining the consciousness, he gave in writing Ext. P-1/1 to Ext. P-1/7, the names of the assailants. Thereafter, he moved an application Ext. P-A to the Deputy Commissioner, Chamba which was sent for the registration of the case to the police. In cross-examination, he stated that on giving the names of the accused in writing in Ext. P-1 the doctors called the police and that note- book (Ext. P-1) was taken by the police into possession. He further stated that after about one month, the injured started speaking about the incident. - 9 - According to PW-4 Pritam Singh Sub Inspector on 20.1.1998 at about 8.30 a.m. he received an information from one Sunil Mahajan that one person was lying near stairs of Pucca Tala in an injured and unconscious condition. He proceeded to the spot and took the injured to the Hospital. Dr. Sanjeet was on duty when injured was admitted in the hospital in casualty on 20.1.1998 at 9.10 a.m. Thereafter PW-6 Dr. Nagesh Verma attended the injured in the hospital. According to him, he was unknown patient brought by the constable Raj Kumar. As per the hospital record Ext. P-D produced by PW-5 Smt. Santosh Ward Sister the injured was found having a serious injury, he was removed to the operation Theatre directly, as the scalp was bleeding. The doctor found his general condition very serious. There was a lacerated wound 8 cms long over the right parietal region with irregular edges and underlying bone was fractured. There was also depressed comminuted fracture of the right parietal bone. One piece of the bone was lying separately Deeping into the brain matter. Another would 2 inches long lacerated was present on the right parietal region. Patient was responding to painful stimuli. Movements of the upper limb and left lower limb were decreased. According to PW-6 aforesaid, the patient was immediately taken up - 10 - for surgery with the help of anesthetist Dr. S.K. Jaryan. Operation was conducted. Right craniotomy with elevation of depressed fracture was undertaken. One piece of right parietal bone was removed and wound was repaired. One unit blood was transfused. Injured had developed left hemiplegia. He was advised CT scan and further neurosurgical opinion thus referred to IGMC Shimla on 27.1.1998 but the patient did not go there. He was readmitted next day on 28.1.1998. CT scan X- rays were also done after the operation. Report was given by Dr Vinod Pathak Radiologist. The injured remained unconscious till 15th February when he regained consciousness, he gave the history that he was assaulted by somebody. He could not speak due to loss of speech. However, he could write vaguely. So the police was accordingly informed. In the opinion of the doctor, the nature of the injuries were grievous and dangerous to life, caused by the blunt weapon within 1 to 2 hours from the time when he was examined in the Hospital for the first time. He had issued the Medico Legal Certificate Ext. P-E and stated that Dr. Sanjit Kaul had only seen the injury at the time of admission but all subsequent treatment was given by him. Doctor also stated that writing was given by the injured in his presence on 18.2.1998 on the treatment sheet Ext. P-D at Mark-A. - 11 - Further according to him, the injuries suffered by the injured were sufficient in the ordinary course of nature to cause his death. In cross-examination, he stated that the injuries found on the person of PW-1 side by side and simultaneous could possibly be caused by a big boulder falling from the height of 50 feet hitting the head directly. He further stated that Man Singh had not written anything in Ext. P-1 in his presence. On his examination on 18.2.1998 he was found conscious but on 30.1.1998 he was drowsy. PW-7 Dr. V.K. Pathak Radiologist has proved the X-ray Ext. P-F which revealed fracture of skull in the parietal bone and his report is Ext. P-G. PW-11 Head Constable Madan Lal had carried the investigation of this case. He visited the spot and prepared the site plan Ext. P-J. He also took into possession note-book Ext. P-1 vide memo Ext. P-B and recorded statements of the witnesses. I have critically reappraised the evidence discussed above. It stands established on record that on the day of the alleged incident, injured PW-1 was in the company of the appellants and all of them took tea in the shop of PW-3 Ashok Kumar. From there, they left to Muhalla ‘Pucca- Tala’ in the morning at 7.45 a.m. It also stands - 12 - proved that PW-1 was found injured near the stairs leading to ‘Pucca Tala’ in an injured and unconsciousness condition. The appellants did not explain nor alleged that the injured was alright when they left his company. As per Ext. P-D the injured was admitted in the hospital on the same day at 9.10 a.m. with comminuted depressed fracture of the right parietal bone. There was no attendant except the police. The head injuries were profusely bleeding. Thereafter the treatment was carried by Dr. Nagesh, as aforesaid and the surgical operation was immediately performed to save the injured but even thereafter he remained unconscious. He developed the hamiplegia of the left limbs. On 18.2.1998 when he slightly improved and became conscious, he is alleged to have written the name of Ramesh Kumar of ‘Tipra’ at Mark-A of the treatment summery and there is also reference of one Chatro. He is the father of appellant Mohinder Kumar. The book which is alleged to have maintained in the Hospital is Ext. P-1 in that also there is a reference to the name of appellant Ramesh Kumar, Manoj Kumar, Mohinder Kumar and also Chatro Ram father of Mohinder Kumar and Nanku, father of Manoj Kumar of village ‘Tipra’. Except this, there is no other narration. This was not got clarified in the cross- examination of the injured as to why the name of - 13 - Chatro Ram and Nanko finds mention therein. However, from the above it is clear from the statement of injured PW-1 as stated above, that he was in the company of the appellants and it was Mohinder who had used abusive language to him on which the injured is stated to have reprimanded him and thereafter he told that he was joking. Mohinder Kumar again repeated the abusive language on which the injured got annoyed and it was thereafter that Mohinder Kumar caught hold of the injured from his arms and started giving fist blows and it was appellant Ramesh who hit him from behind with hard object. Manoj Kumar who is also proved to have caught hold of the injured from his arm but its twisting by Mohinder Kumar did not exactly find mention in the statement Ext. D-1 but this fact does not cause any dent in the prosecution case because there is a reference of catching hold of his arms by both the said appellants. Further, appellant Ramesh is proved to be actual assailant whereas Mohinder Kumar had been using the abusive language and caught hold of the injured from his hand and given beatings in that process Manoj also caught hold of the injured from his arms. Thus both of them i.e. Mohinder Kumar and Manoj shared the common intention to give beatings to him and not attempted to cause his murder. Thus, the testimony of PW-1 Man Singh inspires confidence and can be acted upon. Now - 14 - the question is what offence has been committed by which of the accused or whether all the accused- appellants had shared the common intention attempting to commit murder. Undoubtedly, it is difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however, difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In most cases, it has to be inferred from the act or conduct or other relevant circumstances of the case in hand. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance, all of them left the scene of incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had - 15 - a common intention to commit an offence of which they could be /were convicted. It is, however, not necessary to show that any overt act must have been done by a particular accused. The section gets attracted if it is established that the criminal act has been done by all or any one of the accused persons in furtherance of the common intention. Before an inference of common intention can be reached in a given case, the incriminating facts from which such inference is to be drawn should be held to be formally established. The facts should formally and wholly warrant the inference that more than one accused persons acted in furtherance of common intention of all; they must be wholly incompatible with the contrary inference; and in compatible of being explained on any other reasonable hypothesis. In other words, the common intention has to be judged by the part played by all the accused, nature of injuries inflicted on the surrounding circumstances. Applying the above principle of law, in the case on hand, the fact that the appellant Ramesh was not carrying any deadly weapon with him, the appellant Mahinder Kumar and Manoj Kumar though accompanying Ramesh Kumar could not be attributed the sharing the common intention to cause attempt to murder of the appellant, as - 16 - aforesaid. In the given circumstances, they only shared the common intention qua giving beatings to the injured as such they could be held guilty of the offence punishable under Section 323 read with Section 34 of the Indian Penal Code whereas accused-appellant Ramesh Kumar had hit Man Singh with a hard substance on the head of the injured which injuries were sufficient, in the ordinary course to cause death of the injured but for the timely treatment, the injured (PW-1) was saved. Therefore, conviction and sentence of Ramesh appellant under Section 307 of the Indian Penal Code is proper. In result for the reasons aforesaid, the appeal filed by the appellant Mahinder Kumar and Manoj Kumar is partly accepted. Their conviction and sentence is converted to one under section from Section 323 read with Section 34 of the Indian Penal Code from Section 307 read with Section 34 of the Indian Penal Code. Both of them being first offenders as such they are admonished by giving the benefit of Section 3 of the Probation of Offenders Act, however, each of them are held liable to pay compensation of Rs.1000/- each to the injured. The fine amount deposited by each of them be treated as a compensation, which shall be paid to the injured. Whereas, the appeal filed by appellant Ramesh Kumar, against his conviction is hereby dismissed. The fine - 17 - deposited by him as per the order dated 5.2.2002 by this court shall also be paid to the injured as compensation. The appellant Ramesh Kumar shall surrender before the learned trial court within one month from today to serve out the remaining sentence, failing which, the learned trial court shall take every reasonable step to execute his sentence. Send down the records. May 15, 2009 (Surinder Singh),J. (cm)