Criminal Appeal No. 1601-SB of 2004(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 02 , 2010 Criminal Appeal No. 1601-SB of 2004(O&M) Charan Singh and others ...... Appellants Versus State of Punjab ...... Respondent Criminal Revision No. 2273 of 2004O&M) Naurang Singh ..... Petitioner Versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajesh Chaudhary, Advocate for Mr. Sanjiv Pandey, Advocate for the appellants. Mr.H.S.Dhindsa, Advocate for the petitioner. Mr.Sartaj Singh Gill, DAG, Punjab. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Criminal Appeal No. 1601-SB of 2004(O&M) 2 Ajay Tewari, J. This judgment will decide Criminal Appeal No.1601-SB of 2004 and Criminal Revision No. 2273 of 2004. The facts are being taken from Criminal Appeal No. 1601-SB of 2004. This appeal has been filed against the judgment and order dated 17.07.2004 passed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana whereby he has convicted and sentenced the appellants to undergo rigorous imprisonment for three years with fine of Rs. 1000/- for the commission of offence under Section 326/149 IPC and in default of payment of fine to further undergo rigorous imprisonment for three months and also for a period of one year for the commission of offence under Sections 323/148/149 IPC. Succinctly put the prosecution case was that on account of an earlier dispute between the parties, on 31.7.2000 at about 6.00 p.m. the appellants threw acid on the complainants. The appellants were arrested, committed and charged. The complainants, injured witnesses appeared in support of the prosecution and reiterated their version that their womenfolk had gone to pay obeisance at the place where their forefathers had been cremated on the evening in question and on hearing their shrieks, when they reached there, they were attacked by the accused with acid. The medical evidence proved the following injuries:- Injuries on the person of Nasib Kaur (attributed to accused Nahar Singh and Sinder Kaur):- 1. Burn injury 5 cm x4 cm , present on lateral aspect middle 1/3rd left leg, brown colour 2. Burn injury 4 cmx 4 cm present on upper ¼ posterior aspect right leg. Criminal Appeal No. 1601-SB of 2004(O&M) 3 These injuries were kept under observation and were later on declared simple in nature having been caused by acid. Injuries on the person of Gurmit Singh (attributed to accused Baljit Singh and Piar Kaur):- 1. Swelling 3 cm x 2 cm present on right side face just below the right lower eye lid brown in colour. 2. Multiple burn injuries 15 cm x 3 cm present on top of right shoulder brown in colour. 3. Multiple brown injuries in the area of 14 cm x 6 cm right lumber region on the back. All the injuries were kept under observation and were later on declared simple in nature having been caused by acid. Injuries on the person of Gulzar Singh son of Inder Singh:- 1. Burn injury 2 cm x 1 cm present on top of left shoulder brown in colour. 2. Complain of pain in lumbo scapular region. 3. Complain of pain in infra scapular region right, left side. Injuries No. 1 and 2 were declared simple in nature whereas for want of receipt of X-ray report, injury No.3 was not declared. Injury No. 1 was caused by acid whereas injuries No. 2 and 3 were caused with blunt weapon. Injuries on the person of Jagdev Singh:- The patient had chemical burn on the face, neck, both upper limbs. It was about 25% to 305 chemically burnt. The injury was declared grievous in nature on the basis of opinion given by Eye Department. Criminal Appeal No. 1601-SB of 2004(O&M) 4 Defence evidence was led to the effect that actually the complainant party had demolished the wall of accused Harnek Singh and, despite the matter having been reported to the police, no action was taken. The learned trial Court after believing the case of the prosecution convicted the appellants and sentenced all of them as mentioned above. Learned counsel for the appellants has argued that the evidence clearly proved that it was the complainant party who belonged to the dominant social group had in fact instigated the whole fracas by forcibly demolishing the wall of the accused persons (who were from a subservient social group) and by giving beatings to them. He further argued that the learned trial Court erred in passing an omnibus sentence on all the appellants without noticing the glaring difference in the various act/s ascribed to them. Learned DAG, however, argued that the guilt of the accused persons had been conclusively brought home. He further argued that as regards the imposition of sentence also, once the common intention of the appellants was established the imposition of similar sentence could not be faulted. In Sachin Jana & Anr. v. State of West Bengal reported as 2008(1) Criminal Court Cases 919 the Hon'ble Supreme Court held as follows:- “10. 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 Criminal Appeal No. 1601-SB of 2004(O&M) 5 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. 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 pre-arranged or on the spur of the moment;but it must necessarily be before the commission of the crime. The true concept of the section is that if two or ore persons intentionally 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, (1977)1 SCC 746 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 identically similar. The acts maybe different in character, but must have been actuated by one and the same common intention in order to attract the provision. 11. The section does not say “the common intentions of all”, nor does it say “an 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 accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 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 Criminal Appeal No. 1601-SB of 2004(O&M) 6 prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P.,1993 Supp.(3) SCC134 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.” In my opinion the argument of learned counsel for the appellants, that it was the complainant party who were the aggressors, has been established. In this regard the deposition of DW3, DW4, DW5 and DW6 is worthy of credence. All of them had stated that on 30.7.2000 i.e. one day prior to the occurrence, the complainant had indeed demolished the wall of the accused and, the accused had complained to the police about the same but that no action was taken. They remained unshaken in cross- examination. That said, it is, however, established that the appellants did form an unlawful assembly and having made preparations, did inflict grievous injuries, at least on some of the complainants, albeit in a situation of frustration, despair and hopelessness and thus were rightly convicted under Sections 326/323/148/149 IPC as per the position of law explained by the Hon'ble Supreme Court in Sachin Jana's case (supra) . Further, an analysis of the acts attributed and the injuries caused reveals that the injuries caused by appellant No.1(Charan Singh) to complainant Jagdev Singh were extremely grievous which have left Jagdev Singh in a particularly pathetic condition and the ill effects of which are existing till today. Similarly the injuries caused by appellant No.6 (Nirmal Singh) to Hari Chand, though not as serious as the ones attributed to Charan Singh (appellant No.1), were still classified as grievous. However, the injuries attributed to the other appellants were simple in nature. Criminal Appeal No. 1601-SB of 2004(O&M) 7 Considering the above judgment and the nature of the dispute as well as the fact that the incident is now almost 10 years old, the conviction is upheld with the modification that the sentence of the appellants No. 2 to 5 and 7, 9, 10, 11, 12 and 13 shall be reduced to two years rigorous imprisonment under Section 326/149 IPC while sentence of appellants No. 8, 14 and 15 (who are ladies) is reduced to one year. The sentence awarded to Charan Singh (appellant No.1) is enhanced to 4 years rigorous imprisonment under Section 326/149 IPC. The other sentences are left in tact. With these observations this appeal and the revision are disposed of. Let the appellants be taken in custody to serve the remaining period of their sentence/s. (AJAY TEWARI) JUDGE February 02 , 2010 sunita