RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1428 OF 2001 (OLD NO.1411 OF 1996) 1. Kamal Singh 2. Udai Singh ……… Appellants Versus State of Uttarakhand .……… Respondent Dated: April 26, 2010 Sri Vinay Kumar and Sri Niranjan Bhatt, Advocate for the appellant no.2 Sri Amit Bhatt, Additional Government Advocate for the State. 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 16.8.1996 passed by Sessions Judge, Uttarkashi in Sessions Trial No.14/1994, State Vs. Kamal Singh and another, whereby the learned Sessions Judge convicted the appellant/accused Kamal Singh under Sections 324 and 452 of IPC and sentenced him to undergo one year R.I. u/s 324 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and six months R.I. u/s 452 IPC. Appellant/accused Udai Singh was convicted under Sections 324/34 and 452 IPC. He was sentenced to undergo one year R.I. u/s 324/34 and six months R.I. u/s 452 IPC. Both the sentences of the appellants/accused were directed to run concurrently. 2. Heard learned counsel for the parties and perused the entire material on record. 3. Chief Judicial Magistrate, Uttarkashi vide his report dated 21.1.2010 has reported that appellant no.1 Kamal Singh has died. Hence, the appeal filed by appellant no.1 stands abated. 4. In brief, the prosecution case is that complainant Kunwar Singh Chauhan lodged the First Information Report in the Police Station Kotwali, Uttarkashi stating that he purchased land from one Smt. Tara Devi and that the same has been registered in his name. Two years back, accused Kamal Singh (now dead) had a khokha on the said land and was carrying on his business there and for this reason he had enmity with the complainant. On 20.10.1993 at 08:15 PM accused Kamal Singh along with his brother Udai Singh entered into his house and with intention to kill him Kamal Singh caused injuries on his head by means of Khukhari. At that time Gulab Singh, neighbourer of the complainant, and other family members were present at the spot, who came for his rescue. On hue and cry, many other people from the vicinity reached there. On seeing the witnesses coming, the appellants/accused ran away giving threat to the complainant. With the same averments, the F.I.R. was lodged by Kunwar Singh Chauhan on the same day i.e. 20.10.1993 at 09:20 PM at P.S. Kotwali Uttarkashi. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. of the case was prepared by Constable Clerk Shyam Singh, i.e. Ext.Ka-4. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka- 5. At later stage, the investigation of this case was conduced by P.W.5 S.I. Jaswa Lal, which initially was being done by previous Investigating Officer. On the same day at 9:40 PM, injured Kunwar Singh was medically examined by P.W.4 Dr. Rajeev Bansal, who after the medical examination, prepared the injury report Ext.Ka-2. During the course of investigation, the I.O. recorded the statement of the witnesses, inspected the place of occurrence and prepared the site-plan and took into possession bloodstained clothes of injured. On completion of investigation, the I.O. filed the charge sheets against both the accused persons. 5. After receiving the charge sheets, learned Chief Judicial Magistrate, Uttarkashi, committed the case to the court of Sessions on 15.7.1994 after giving necessary copies to the accused persons as prescribed u/s 207 Cr.P.C. 6. On 16.8.1994, learned Sessions Judge, Uttarkashi framed the charge of offence punishable under Sections 452 and 307/34 IPC against the appellant/accused Udai Singh. On the same day, charge u/Ss 452 and 307 IPC was also framed against accused Kamal Singh (now dead). The charges were read over and explained to the accused persons, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined P.W.1 Trilok Singh, scribe of the report, P.W.2 Kunwar Singh, injured eyewitness of the case, P.W.3 Gulab Singh, eyewitness, P.W.4 Dr. Rajeev Bansal, who medically examined the injured and prepared the injury report Ext.Ka-2, P.W.5 S.I. Jaswa Lal, Investigating Officer of the case and P.W.6 C/c Shyam Singh, who prepared the Chik F.I.R. of the case and also made entries in the G.D. 8. Thereafter the statements of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Sessions Judge, Uttarkashi vide his judgment and order dated 16.8.1996 convicted and sentenced the appellants/accused as mentioned above. Against the said judgment and order dated 16.8.1996, the appellants/accused have preferred this appeal. 10. Before further discussion, it is pertinent to mention that the injured Kunwar Singh was got medically examined on the same day i.e. 20.10.1993 at 9:40 PM by P.W.4 Dr. Rajeev Bansal, who after the medical examination, prepared the injury report Ext.Ka-2, which is as under:- i) One lacerated wound about 3 cm above the scar mark on the forehead which is having two part on in horizontal semi linear 2 cm x 0.5 cm in size. Fresh blood oozing out, skin deep. Second part is attached to it semi linear vertical. Blood oozing out from the wound. ii) One abrasion of 1 cm x 0.5 cm over the index finger on the dorsal aspect, red in colour. Opinion:- Both the injuries are simple in nature. Injury no.1 is caused by sharp object and is fresh. Injury no.2 is caused by blunt object. 11. To prove the above-noted injury, the prosecution has examined P.W.4 Dr. Rajeev Bansal, who has stated that on 20.10.1993 at 9:40 PM he medically examined the injured Kunwar Singh and found the above-noted injuries on the person of Kunwar Singh. He has proved the injury report Ext.Ka- 2. 12. To prove its case further, the prosecution has examined P.W.1 Trilok Singh, who has stated that the report of the said incident was written by him on the dictation of P.W.2 Kunwar Singh. He has proved the report Ext.Ka-1. 13. P.W.2 Kunwar Singh has stated that in the year 1992 he had purchased land from one Smt. Tara Devi. The appellant/accused Kamal Singh had a Khokha on the said land due to which the appellant Kamal Singh was having enmity with him. He further stated that the said incident took place on 20.10.1993 at 08:15 PM. At that time he and Gulab Singh were sitting in the room. Appellants/accused Kamal Singh and Udai Singh came to his house. Kamal Singh was armed with Khukhari by which he caused injuries on his head. On raising alarm, the appellants/accused ran away. While running from the spot, accused Kamal Singh threatened him for dire consequences. So many people of the vicinity also reached at the place of occurrence. Thereafter he got scribe the report Ext.Ka- 1 from one Trilok Singh and his medical examination was also done. 14. P.W.3 Gulab Singh has corroborated the statement of P.W.2 Kunwar Singh. 15. P.W.5 Sub Inspector Jaswa Lal has stated that on 23.11.1993 he was posted at Police Station Kotwali, Uttarkashi. He perused the investigation conducted by previous Investigating Officer, and on completion of investigation, filed the charge sheet against the appellants/accused, which is Ext.Ka-3. 16. P.W.6 Constable Clerk Shyam Singh has stated that on 20.10.1993 he was posted on the aforesaid post at P.S. Kotwali Uttarkashi. On the basis of report lodged by Kunwar Singh, he prepared the Chik F.I.R. Ext.Ka-4 of the case and also made entries in the G.D., carbon copy of which is Ext.Ka-5. 17. Thereafter the statements of the appellants/accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. However, they have not produced any oral or documentary evidence in their defence. 18. Sri Vinay Kumar and Sri Niranjan Bhatt, learned counsel for appellant no.2 have argued that the appellant Udai Singh has been implicated in the said case only for the reason that he is real brother of accused Kamal Singh (now dead). The prosecution has failed to prove its case against the appellant/accused Udai Singh beyond reasonable doubt under Sections 324/34 and 452 IPC. I find force in the argument of learned counsel for the appellant no.2, due to following reasons:- (i) 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 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 mind of the accused person to commit the offence for which he is 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 instant case, there is nothing on evidence to show that the appellant Udai Singh shared common intention. It has nowhere come in the evidence that the appellant Udai Singh participated in the act of above said crime or he helped the appellant appellant/accused Udai Singh. The appellant Udai Singh is liable to be acquitted by giving benefit of doubt. Kamal Singh, in any way, in order to cause injuries to Kunwar Singh. Mere presence of the appellant Udai Singh at the place of occurrence is not sufficient to prove the offence u/s 324 r/w 34 IPC against him. Therefore, the conviction of the appellant/accused Udai Singh under Section 324 IPC r/w Section 34 IPC is bad in law and cannot be sustained in the eyes of law. (ii) Further, it has nowhere come in the evidence that the appellant Udai Singh entered into the house of Kunwar Singh with preparation of causing hurt to him. No weapon has been shown in the hands of appellant/accused Udai Singh by the prosecution witnesses. The weapon Khukhri by which injuries were caused to Kunwar Singh was shown to be in the hands of accused Kamal Singh. Hence, it emerges out that the name of the appellant/accused Udai Singh has falsely been implicated due to the reason that he was the real brother of accused Kamal Singh. As such, the offence u/s 452 IPC is also not proved against the 19. For the foregoing reasons, the appeal is allowed. The judgment and order dated 16.8.1996 passed by Sessions Judge, Uttarkashi in Sessions Trial No.14/1994, State Vs. Kamal Singh and another, in convicting and sentencing the appellant/accused Udai Singh is hereby set aside. He is on bail. He need not surrender unless wanted in any other case. (As far as the appeal preferred by appellant Kamal Singh is concerned, it stands abated due to his death during the pendency of appeal). 20. Let the lower court record be sent back. (Dharam Veer, J.) 26.04.2010 Rajni