IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.29 of 2002 Sunder Singh & others …….….…. Appellants Versus The State …………… Respondent Dated: July 22, 2009 Sri M.S. Pal, Sr. Adv. assisted by Sri V.S. Pal, Adv. for the appellants Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellants’ u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 19/22.01.2002 passed by I Addl. Sessions Judge, Rudrapur, U.S. Nagar in S.T. No.97 of 1998, State Vs. Sunder Singh & three others, whereby the learned I Addl. Sessions Judge has convicted the appellant/accused Balkar Singh u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to four years’ R.I. with fine of Rs.5,000/- and in default of payment of fine, three months’ further imprisonment was awarded. He was further convicted under Section 504 IPC and was sentenced to one year’s R.I. Both the sentences of appellant/accused Balkar Singh were directed to run concurrently. 2. Appellant-accused Sunder Singh, Bachan Singh and Jagir Singh, each of them was convicted u/s 307/34 IPC and each of them was sentenced to three years’ R.I. with fine of Rs.2,000/- each and in default, each of the defaulter shall undergo one month’s further imprisonment. They were further convicted u/s 504 IPC and each of them 2 was further sentenced to R.I. of one year. Both the sentences were directed to run concurrently. 3. In view of the fact that the appellant no.2- Balkar Singh had died, hence the appeal filed by appellant/accused No.2 Balkar Singh already stood abated vide order of this Court dated 29.7.2008. 4. I have heard learned counsel for the parties and perused the entire material available on record. 5. In brief, the prosecution case is that P.W.1 Mahendra Singh lodged an FIR stating therein that he had sold 93 quintals of sugarcane at the rate of Rs.60/- per quintal to appellant/accused Sunder Singh who assured him to pay the money after 15 days, however the money was not paid to the complainant till the date of incident. On 20.7.1997 at about 3 p.m., when the complainant went to demand the money, then the appellant/accused Sunder Singh refused him to pay so and also enquired from him that how he dared to come at his house. On this, some altercation took place between the complainant and the appellant/accused Sunder Singh. Due to this reason, in the night at about 11:30 P.M., appellant/accused Sunder Singh being armed with a Lathi along with appellant/ accused Balkar Singh (now deceased) being armed with a pistol and appellants/accused Jagir Singh and Bachan Singh, who were armed with swords, came and started abusing the complainant. When the complainant told them not to do so then on the exhortation of appellant/accused Sunder Singh, appellant/ accused Balkar Singh made a fire which hit on the complainant’s daughter namely Kirpal Kaur (P.W.2) on her mouth and breast. On making noise by them, complainant’s younger brother Makhan Singh (P.W.4) and neighbourers Mahendra Singh (not the 3 complainant) and Bishan Singh and other persons also reached on the spot. Meanwhile, the appellants/accused ran away from there, however they were identified by the complainant, his daughter and other witnesses in the electric light. After admitting his daughter in the hospital, the complainant P.W.1 Mahendra Singh lodged the report on 21.7.1997 at 1:35 A.M. at P.S. Rudrapur, i.e. Ex.Ka-1. On the basis of report (Ex.Ka-1), H.M. Hawaldar Singh prepared the Chik FIR of the case, i.e. Ex.Ka-2. The entry was also made by him in the G.D., the carbon copy of which is Ex.Ka-8. Investigation of this case was entrusted to P.W.5 S.I. M.P. Singh. Injured Kripal Kaur was medically been examined on 21.7.1997 at 12:30 A.M. by P.W.6 Dr. V.P. Joshi and her injury report Ex.Ka-4 was prepared. On receipt of the x-ray report, the same medical officer also prepared the supplementary report i.e. Ex.Ka.5. During investigation, the I.O. inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-3. He also recorded the statements of the witnesses and on completion of investigation, he filed the charge sheet, i.e. Ex.Ka-6. 6. Learned Chief Judicial Magistrate, Rudrapur (U.S. Nagar) committed the case to the court of Sessions on 27.11.1998 after giving necessary copies to the appellants/accused as provided under Section 207 Cr.P.C. 7. On 21.05.1999, learned Sessions Judge, Udham Singh Nagar (Rudrapur) framed the charges against the appellant/accused Balkar Singh (now deceased) under Sections 307/504 IPC. The charges were read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. On the same day, the charges against the rest of the appellants/accused Sunder Singh, 4 Bachan Singh and Jagir Singh were also framed u/s 307/34 IPC and also u/s 504 IPC. The charges were also read over and explained to them, who too pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined P.W.1 Mahendra Singh, complainant of the case, P.W.2 Km. Kripal Kaur, injured witness, P.W.3 Smt. Kartar Kaur, wife of the complainant, P.W.4 Makhan Singh, eyewitness, P.W.5 S.I. M.P. Singh, I.O. of the case and P.W.6 Dr. V.P. Joshi, who medically examined the injured. 9. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 10. After appreciating the evidence on record and after hearing learned counsel for the parties, learned I Addl. Sessions Judge, U.S. Nagar (Rudrapur) vide judgment and order dated 19/22.01.2002 convicted and sentenced the appellants/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 11. Before further discussion, it is pertinent to mention the injuries found on the person of injured Km. Kripal Kaur who was medically examined on 21.7.1997 at 12:30 A.M. by P.W.6 Dr. V.P. Joshi and the following injuries were found in the medical report (Ex.Ka-4): - 1. Firearm injuries mark of .2 x .2 cm, present over forehead, 3 in number, 5 cm above bridge of nose, 5 fresh bleeding present, blackening and tattooing not present. 2. Firearm injuries mark of .2 x .2 cm, 2 in number, present over right upper eyelid, freshly bleeding, swelling over whole of upper eyelid present. No blackening or tattooing is present. 3. Firearm injury mark, 2 in number of .2 x .2 cm present over bridge of nose and one in number of same size, present over left eyebrow, freshly bleeding, color red. No blackening is present 4. Firearm injuries mark of .2x.2 cm in size, two in number present over left side of face, 2 cm away from lateral angle of left eye, color red, freshly bleeding present. No blackening is present. 5. Three firearm injuries mark of .2 x .2 cm present at chin freshly bleeding, color red. 6. Two firearm injuries mark present over bone of palette, freshly bleeding, color red, right 1st canal also broken from middle. Opinion- Above injuries are fresh in duration. Caused by firearm object, injuries are under observation for which x- ray is advised and patient is kept under observation. Supplementary report will be given after x-ray report. On receipt of the x-ray report, the same medical officer also prepared the supplementary report (Ex.Ka-5) and opined as under: - Opinion-According to x-ray report, injuries are caused by firearm object. According to dental surgeon report, injury 6 no.6 is grievous in nature. Rest of the injuries are still under observation. 12. To prove the above injury and supplementary report, the prosecution has examined P.W.6 Dr. V.P. Joshi who has proved the injury report Ex.Ka-4 and supplementary report Ex.Ka-5 prepared by him. 13. To further prove its case, the prosecution has examined P.W.1 Mahendra Singh, complainant of the case, who has reiterated the entire version of the FIR in examination-in-chief. In cross-examination, he stated that the above-said incident had happened in his courtyard. He further stated that bullet was fired from the distance of 10 steps. At the time of firing, three girls and one boy were standing at one side. 14. P.W.2 is Smt. Kripal Kaur, injured witness of the case, who too has reiterated the version of the FIR in her examination-in-chief. In her cross-examination, she stated that in the courtyard, complainant party was taking rest outside the house and before the incident, a tumult took place and 2-4 persons viz. Makhan Singh, Mahendra and Bishan Singh came there and these people had come on the place of occurrence after the firing. The accused had run away from the place of occurrence just after the fire. Thereafter, number of people of village came over the place of occurrence. She further stated that her clothes were blood stained, however the police did not take the same in possession. 15. P.W.3 is Smt. Kartar Kaur who has also corroborated the version of the FIR in examination-in- chief. In cross-examination she stated that the Lathis and 7 sword were used in the aforesaid crime, however no injury was caused to anyone by those Lathis and sword. 16. P.W.4 is Makhan Singh who has also corroborated the statements of P.W.1 Mahendra Singh, P.W.2 Km. Kripal Kaur and P.W.3 Smt. Kartar Kaur in examination-in-chief. In cross-examination he stated that he had seen the accused while coming on the spot from the distance of 50 steps and he made a noise on which 50-60 persons were collected on the place of occurrence. In presence of the above-said persons, accused persons had fired. He further stated that the Khokhas found on the place of occurrence were given to the police by him. 17. P.W.5 is S.I. M.P. Singh who has stated that the investigation of the case was entrusted to him. Chik FIR of the case was prepared by H.M. Hawaldar Singh, i.e. Ex.Ka-2. During investigation he recorded the statements of witnesses and prepared the site plan, i.e. Ex.Ka-3. In cross-examination he stated that in the north of house of complainant, Joginder Singh’s house is situated and in the south, house of Ganga Devi is situated. He further stated that he did not find any Khokha on the place of occurrence. Even he did not find any blood on the place of occurrence. 18. Thereafter, the statements of the appellants/ accused were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 19. Sri M.S. Pal, learned senior counsel for the appellants/accused argued that the prosecution has not 8 proved its case against the appellants/accused beyond reasonable doubt. I find substance in the argument put forth by counsel for the appellants/accused due to the following reasons: - A. That Balkar Singh, the main accused, who was shown to have caused firearm injuries to the injured Km. Kripal Kaur, has now died and the appeal has been abated against him by the order of this Court dated 29.7.2008. B. That as per the prosecution story, appellant/ accused Sunder Singh was armed with Lathi and appellants/accused Jagir Singh and Bachan Singh were armed with swords, however there is no injury of Lathi or sword on any of the persons from the complainant side, which creates a doubt about the presence of the appellants/accused Sunder Singh, Jagir Singh and Bachan Singh on the place of occurrence. C. That appellants/accused Sunder Singh was assigned the role of Lathi while the appellants/ accused Jagir Singh and Bachan Singh were assigned the role of swords by the complainant in the FIR, however in his statement recorded before the trial court, the complainant has not specified that which of the appellant/accused was armed with which weapon, which further creates a doubt about the statement of complainant Mahendra Singh (P.W.1). D. That as per the statement of P.W.5 S.I. M.P. Singh, in the north of house of complainant, Joginder Singh’s house is situated and in the 9 south, house of Ganga Devi is situated, however none of them was examined by the prosecution in the trial court. Even in the night hours, the presence of these witnesses is but natural on the place of occurrence, however they were not cited as witnesses in the charge sheet. These facts further create a doubt in the prosecution story as well as about the manner in which the incident is said to be happened. E. That P.W.4 Makhan Singh has stated that he gave the Khokha to the police, however the P.W.5 S.I. M.P. Singh, I.O. of the case, has stated in his statement that he did not find any Khokha from the place of occurrence, which further goes to create a doubt in the prosecution story as well as in the statement of Makhan Singh. F. That even the injured P.W.2 Smt. Kripal Kaur has stated in her cross-examination that in the incident, her clothes were blood stained. However, the bloodstained clothes were not taken into possession by the police nor they were produced in the court, which further creates a doubt in the prosecution story. G. That as per the statement of P.W.1 Mahendra Singh, at the time of incident, three girls and one boy were standing at one side and the bullet was fired from the distance of 10 steps, but there was not injury except to P.W.2 Kripal Kaur which further creates a doubt in the prosecution story and the manner in which the incident was happened. 10 H. P.W.4 Makhan Singh has stated that he had seen the accused while coming from a distance of 50 steps and he also made a noise and the accused had fired before 50-60 person collected over there, however none of them was examined before the trial court, which further goes to create a reasonable doubt. I. That there was no intention or motive to cause the injuries to P.W.2 Kripal Kaur as she is a married woman and the motive was shown against P.W.1 Mahendra Singh. Even Mahendra Singh was very much present there, however he did not receive any injury which also creates a doubt in the prosecution story. J. That there is no evidence produced by the prosecution against any of the appellants/accused that they uttered a specific word with intention to insult the complainant Mahendra Singh and even there is no evidence that the appellants/accused have done any act or they abused the complainant with intention to insult him. Therefore, the offence punishable u/s 504 IPC also does not proved against the appellants/accused. 20. Learned senior counsel for the appellants/ accused, apart from above, further submitted that appellants/accused were convicted under Section 307 IPC with the aid of Section 34 IPC, however Section 34 IPC is not made out against them. I further find substance in this argument. Section 34 IPC 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 11 is the element of participation in action. The liability of one person for an offence committed by other in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. 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 minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of crime. Under the provisions of Section 34 IPC, the essence of 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. For applying Section 34 IPC it is not necessary to show some overt act on the part of the accused. In the case in hand, none of the witnesses has stated in their deposition that there was any prior plan or meeting of minds of all the appellants/ accused to cause the injuries to the injured P.W.2 Kirpal Kaur. Even there is not a single word uttered by the prosecution witnesses that there was any common intention or prior plan or meeting of minds amongst the appellants/accused to commit the aforesaid crime. Therefore, the conviction of the appellants/accused under Section 307 IPC r/w Section 34 IPC is bad in law and cannot be sustained in the eyes of law. 21. Thus, from the evidence discussed above and as per the arguments advanced by learned counsel for the appellants, the prosecution has failed to prove its case against the appellants/accused beyond reasonable doubt 12 and I do not concur the view taken by the trial court in convicting and sentencing the appellants/accused as discussed above. Therefore, the appellants are liable to be acquitted. 22. Consequently, the appeal stands allowed. The judgment and order dated 19/22.01.2002 passed by I Addl. Sessions Judge, Rudrapur, U.S. Nagar in S.T. No.97/1998, State Vs. Sunder Singh & three others, convicting and sentencing the appellants/accused-Sunder Singh, Bachan Singh and Jagir Singh, as discussed above, is hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Needless to state that the appeal filed by the appellant/accused Balkar Singh stood abated vide order of this Court dated 29.7.2008. 23. Let the record be sent back. (Dharam Veer, J.) July 22, 2009 Rajeev Dang