-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1)- D.B. CRIMINAL APPEAL NO. 880/2001 (Gurbachan Singh & Ors. V/s State of Rajasthan) (2)- D.B. CRIMINAL APPEAL NO. 570/2004 (Smt. Manjeet Kaur V/s State of Rajasthan) D.B. Criminal Appeal under Section 374(2) Cr.P.C. against the judgment dated 7.11.2001 passed by the Additional Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar in Sessions Case No.92/2001. *** Date of Judgment :: 4.4.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Mridul Jain) for the appellants) Mr. VR Mehta, Public Prosecutor Mr. HSS Kharlia) Mr. SS Dhillon) for the complainant. BY THE COURT (PER HON'BLE MR. B.KHAN J.) : Five accused-persons Gurbachan Singh, Balvir Singh, Manjeet Singh, Smt. Jangir Kaur and Darshan Singh were tried by the learned Additional Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar -2- under Sections 302/149, 147, 148, 324/149 and 323/149 of the I.P.C. On the conclusion of the trial, they all have been convicted for the said offences, vide judgment dated 7.11.2001. Initially, the FIR against six accused-persons was lodged by Gurbachan Singh, out of which Smt. Manjeet Kaur remained absconding, against whom challan was filed. Later on, in the said Court, she was also convicted vide judgment dated 3.6.2004 on the charge of the same offences as above mentioned. These two separate appeals being D.B. Cr. Appeal No. 8801/2001 and D.B. Cr. Appeal No.570/2004 were filed by the accused-appellants against judgments dated 7.11.2001 and 3.6.2004. Since the matter relates to the same FIR and of the same incident, both these appeals are being disposed of by this judgment. Briefly stated the facts disclosed by the prosecution are that on 6.11.2000 at about 10.30 p.m., a written complaint was lodged in police station, Anoopgarh by Harbhajan Singh stating therein that Gurbachan Singh and Darshan Singh, his real brother are living separately from him and he along with his brother Teja Singh are living separately from them. On 6.11.2000 at about 5.00 p.m. A tractor was being ploughed by Gurbachan Singh and Balvir Singh on the plot belonging to water works department, which was objected to by the employee Sharavan Kumar of water -3- works department. A common meeting about the same disputed was held in the village, in which Teja Singh objected about the conduct of Gurbachan Singh for ploughing the plot and told that they should not have ploughed the tractor on the land belonging to water works department. Upon which Gurbachan Singh and Balvir Singh went to their house showing their anger. At about 7.30 p.m., he along with his wife Jasveer Kaur was going to Gurudwara, at the same time, Teja Singh was coming from the Flour Mill of Sohan Lal near Gurudwara, where they saw that Gurbachan Singh with 'lathi', Darshan Singh with 'axe', Balvir Singh with 'toka', Manjeet Singh with 'gandasi', Smt. Jangir Kaur and Smt. Manjeet Kaur empty handed surrounded Teja Singh and started beating with their weapons. He ran and when tried to save Teja Singh. Balvir Singh inflicted with 'toka' on his head and Gurbachan Singh inflicted with 'lathi' on his right hand and on legs. He and his wife made cries, all accused-persons who belaboured Teja Singh with sharp edged weapon ran away. Teja Singh died on the spot. Mohan Singh and Krishna also came on the spot. He went to police station and lodge the report. The police after investigation submitted challan against the accused-persons. Manjeet Kaur was absconding. Her case remained pending with the police. The accused-persons denied the charges levelled against them for the aforesaid sections and claimed -4- for trial. The prosecution in all produced fifteen witnesses and exhibited documents Ex.-P/1 to Ex.-P/49. The accused-appellants in their statement under Section 313 Cr.P.C. denied the allegations of the prosecution witnesses. In the statement they pleaded that because of enmity existing in between complainant and them about the land, a false case has been filed against them. Accused Balvir Singh has admitted about the incident of ploughing of the plot and the objection raised. One witness was produced in defence. The trial court after evaluating the oral as well as documentary evidence and relying on the evidence produced, has convicted all the accused for the offences charged vide judgment dated 7.11.2001. Later on, the police submitted challan against Smt. Manjeet Kaur, who was also convicted by the Court vide judgment dated 3.6.2004 for the said offences. Against their conviction the accused-persons have filed two appeals above mentioned. Both the parties were heard. The entire record was gone through. The learned counsel for the appellants pleaded that there is not an independent eye-witnesses of the incident and the fact of the enmity in between the parties is admitted. The only eye-witnesses produced one Harbhajan Singh and his wife by the -5- prosecution who is the real brother of accused Gurbachan Singh. Because of the enmity existing between the parties, they have falsely implicated the accused-persons, but their testimony do not reveal that they have seen the occurrence as there are contradictions, omission then infirmities in the statement deposed by them before the police and during trial. The recovery of weapon also cannot be believed as it has not become clear from the tendered evidence, who was the responsible person, who opened the locked door of the houses belonging to the accused-persons when the recovery was made from the house of the accused-persons. The weapon of offence does not disclose the blood group because of disintegration and simply being smeared with human blood cannot link the accused-persons for the commission of crime. There is no evidence to link the accused-Smt. Jangir Kaur and Smt. Manjeet Kaur in the commission of crime because they were unarmed and has not played any part and their presence have also not been shown by the eye- witnesses in the statement recorded during investigation. Both these eye-witnesses have improved the version in the Court to embellish both the lady in the crime. Learned counsel for the appellants further argued that when the presence of Smt. Jangir Kaur and Smt. Manjeet Kaur become doubtful, the number of persons being less than five, the accused-person -6- cannot be convicted for the joint or vicarious liability under Section 149 of the I.P.C. The involvement of accused-Gurbachan Singh was also not proved, as per version of both the eye-witnesses, his case also falls in the category as that of accused Smt. Jangir Kaur and Smt. Manjeet Kaur. The medical evidence tendered by the prosecution is completely in contrast with that of ocular testimony of the witnesses. In such, circumstances, no case is made out against the accused-persons. The learned trial court has committed illegality by convicting all the accused-persons by fixing the joint and vicarious liability for the commission of offence. The learned Public Prosecutor vehemently opposed the arguments put-forth by the learned counsel for the appellants and pleaded that inter-se blood relation of the party cannot be a ground to throw the entire otherwise reliable and trustworthy testimony given by the eye-witnesses. The deceased is also the real brother of the accused-persons and the witnesses are blood relative of the accused. The witnesses could not have falsely implicated their own relatives leaving aside the main accused and simply on this basis their being a relation, entire evidence cannot be thrown away. All the accused-persons took active participation in the crime and gave beating to the deceased Teja Singh with sharp edged and blunt weapon and the every member of unlawful assembly is -7- responsible for the commission of crime. If the offence is committed by any member of unlawful assembly in the furtherance of the common object then he is guilty of the same offence irrespective of whether active participation has been done or not. There is no material contradiction in the medical evidence as the doctor while deposing has specifically stated that the injuries on the person of the deceased were caused by sharp edged weapon. The number of accused-persons, who formed the unlawful assembly and participate in the crime, the joint responsibility can safely fasten by invoking Section 149 IPC. The learned trial court has committed no illegality while finding the common object of all accused-persons in commission of crime the accused-persons have rightly been convicted with the help of Section 149 I.P.C. Few of the admitted facts are that there is no independent eye-witness of the occurrence as both the parties are inter-se related with each other and the complainant Harbhajan Singh is real brother of the accused Gurbachan Singh and Darshan Singh. Accused Manjeet Singh and Balvir Singh are his nephew and Smt. Jangir Kaur is wife of Gurbachan Singh and Smt. Manjeet Kaur is wife of Darshan Singh. The enmity in between the parties about the land which was given by the mother of the parties to complainant party was objected to by the accused-persons is also admitted. In such circumstances, the omnibus evidence produced -8- by the prosecution is to be scrutinized and screened with a caution. The only witness of the occurrence is PW-1 Harbhajan Singh, his wife PW-2 Smt. Jasveer Kaur and third one PW-3 Rajveer Kaur – daughter of the deceased though not an eye-witness, but as per her statement she reached on the spot when accused-person were going away from spot. Having carefully gone through the evidence of all these three witnesses, it is proved that there is nothing on record to show any contradiction, omission, infirmity, so as to allow the accused-person to discredit them. But when the evidence of all these three witnesses is screened viz-a-viz both the lady accused, it is found that a reasonable doubt creeps in about the presence of both lady accused on the spot because PW-1 Harbhajan Singh while narrating in support of FIR has admitted in his cross-examination that in the statement Ex.-D/1 recorded by the police and also the FIR Ex.-P/1 given by him, he has not mentioned about the fact of exhortation being said by Smt. Jangir Kaur and Smt. Manjeet Kaur. Similar type of statement is given by other alleged eye-witness Smt. Jasveer Kaur wife of Harbhajan Singh. The statement of these two eye-witnesses clearly establish that both the ladies i.e. Smt. Jangir Kaur and Smt. Manjeet Kaur have been embellished in the commission of crime. Merely on the -9- word of shouting by them to kill Teja Singh, but the said version is not available in the statement Ex.-D/1 recorded by the police during investigation and also on Ex.-P/1 FIR given by him, material omissions which affect the version vis-a-vis lady accused. Both have improved their version in the Court, simply to involve both these lady accused in the commission of crime. In these circumstances, their presence on the spot become doubtful and both are entitled for the same. If the presence of Smt. Jangir Kaur and Smt. Majeet Kaur on the place of occurrence, as per statement of the prosecution testimony itself becomes doubtful, the theory of formation of unlawful assembly goes automatically because Section 149 IPC postulate an assembly of five or more persons. Here the charge was framed against the six persons, who were alleged to be members of unlawful assembly and if two out of six are even not found to have been proved on the spot at the time of commission of crime, then assembly is reduced comprising of only four persons. Then Section 141 IPC becomes inapplicable and in such situation Section 149 IPC can not be invoked. Had there been a charge of more than five persons known or unknown, the situation would have been different. Now the question remains when Section 149 IPC cannot be invoked looking to the number of members of the accused-persons found to be less than five persons whether a substitution of Section 34 IPC can be made -10- or not. AIR 1973 SC 2221, in which it has been held that : “(B) Conviction of an accused under S.302 read with Section 34 though charged under S. 302 read with S. 149 is not illegal when the facts proved and evidence adduced would have been the same if the accused had been charged under S. 302 read with S. 34. In such a case failure to charge the accused under S. 34 cannot result in any prejudice.” Similarly, AIR 1954 SC 204, in which it has been held that : “.... it is true that there is substantial difference between the two sections but they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 over- laps the ground covered by S. 34. If the common object which is the subject matter of the charge under S. 149 does not necessarily involve a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter. There is no such broad proposition of law that there can be no recourse to S. 34 when the charge is only under S. 149. “Whether such recourse can be had or not must depend on the facts of each case.” In the light of the above observation whether -11- such recourse can be had or not depends upon the individual fact of the case. In the instant case subject matter of charge of which under Section 149 IPC would be the same, if the charge were under Section 34 IPC and no prejudice would be caused to the accused-persons, if charge under Section 34 IPC is not framed and in place charge under Section 149 IPC is framed then failure to charge under Section 34 IPC cannot result in any prejudice and in such case substitution of Section 34 for Section 149 IPC remains a formal matter and can be done. Now the accused-persons if cannot be punished with the help of Section 149 IPC, they all can certainly be punished with the help of Section 34 IPC, if the sharing of common intention is established from the evidence in absence of there being charge under Section 34 IPC. It has been specifically stated in the corroborated evidence by both eye-witnesses that accused Darshan Singh, Barvir Singh and Manjeet Singh, who were armed with lethal sharp edged weapon inflicted the injuries on the head of the deceased Teja Singh. As per statement of Dr. Mohan Lal Gupta PW-9, who has stated that these injuries can be inflicted only by repetition, as there were eight incised injuries on the head which were sufficient in the ordinary course of cause death. It means the injuries on the head of the deceased was inflicted by giving repeated blows. Besides all these injuries, -12- there are other nine injuries on the person of the deceased which reflect the intention and conduct of the accused-persons. It can safely be inferred that these three accused-persons shared the common intention to cause such bodily injury which are sufficient in the ordinary course of nature to cause death, resulting ultimately in the death of the deceased. So these three accused-persons definitely shared the common intention as from very initiation, they gathered at particular spot having armed with lethal sharp edged weapon and when saw coming Teja Singh, they inflicted the injury with their weapons on the person of the deceased. The version of doctor that the injuries on the person of deceased were not such which could have been caused by 'axe' and 'gandashi', is contrary to what he has deposed in the examination-in-chief, in which he has stated that injuries on the person of the deceased was caused by sharp edged weapon. He has not seen the weapon of offence during examination, so it cannot be asserted that whatever injuries caused on the person of the deceased were not of 'axe' or 'gandashi'. The version in the cross-examination given by the doctor is of not much help to the accused-persons in the light of deposition given by the ocular testimony and proved that all three accused-persons namely Darshan Singh, Balvir Singh and Manjeet Singh shared the common intention to kill deceased Teja Singh and for that purpose they inflicted the injuries by sharp edged -13- weapon on the vital part of the body. Resultantly, the deceased succumbed to the injuries inflicted on his person. The inflicted injuries are neither unintentional nor accidental, but given deliberately by the accused-person. With this testimony the recovery of weapon about which PW-15 Vipin Sharma, Investigating Officer has stated that Darshan Singh, Balvir Singh and Manjeet Singh gave an information Ex.-P/41 to Ex.-P/43 respectively under Section 27 of the Evidence Act about the weapons and in consequence of that information a recovery of 'axe', 'toka' and 'gandashi' was made through recovery memo Ex.-P/24 to Ex.-P/26 respectively. The Forensic Report also reveals about that these recovered weapons were smeared with human blood. The corroborative testimony of eye witnesses about the role played by the accused-persons coupled with the recovery memo clearly establishes and proved that all these three accused- persons belaboured deceased Teja Singh and with a common intention to cause death of Teja Singh, so with the help of Section 34 IPC these three accused-persons can safely be convicted for the offence of murder read with Section 34 IPC. Now the question remains about accused Gurbachan who as per ocular testimony was armed with 'lathi' and the same was recovered also. After he gave -14- an information through Ex.-P/41 and the same was covered through Ex.-P/23 and the same was also smeared with human blood. Harbhajan Singh himself is injured whose injury report Ex.-P/15 was prepared by Dr. Mohan Lal Gupta. As per injury report he has received as many as eight injuries on his person, out of which one is from sharp edged weapon and as per statement of Harbhajan Singh the said injury was inflicted by accused Balvir Singh with 'toka', when he reached on the spot to save his brother. Gurbachan Singh gave 'lathi' blows on his person. From the testimony of ocular witnesses it can safely be inferred that accused Gurbachan Singh was not sharing the common intention as he was armed only with 'lathi' and whatever injuries on the person of the deceased which were given on vital part of the body of the deceased. The common intention of the accused can be inferred from the conduct and part played by the accused-persons at the time of commission of offence from the surrounding circumstances and after analysis, it is not clear that accused Gurbachan Singh shared the common intention with other co-accused persons to cause death of the deceased or injuries likely to cause death. Accused Gurbachan Singh is responsible only for the part played by him during the time of commission of offence, which he did by inflicting the injuries on the person of PW-1 Harbhajan Singh, so he can be held responsible for the offence of Section 323 -15- IPC for causing injuries on the person of Harbhajan Singh. In these circumstances as discussed above, it is well proved that accused Darshan Singh, Balvir Singh and Manjeet Singh shared the common intention to cause death or cause such bodily injury as he is likely to cause death, so instead of Section 302/149 IPC. These three accused-persons can be convicted and punished for the offence under Section 302/34 IPC and accused Gurbachan Singh can be convicted and punished under Section 323 IPC instead of Sections 324/149 and 323/149 IPC. Both lady accused Smt. Manjeet Kaur and Smt. Jangir Kaur against whom the prosecution has failed to prove the charges levelled deserve acquittal. Accused Balvir Singh is also responsible for intention of sharp edged weapon on the head of Harbhajan Singh. The offence under Section 324 IPC is also proved against him. In the result, D.B. Cr. Appeal No. 570/2004 filed by Smt. Manjeet Kaur is allowed. The sentence and conviction passed vide judgment dated 3.6.2004 is set-aside and she is acquitted for the offences under Sections 302/149, 147, 148, 324/149 and 323/149 IPC. D.B. Cr. Appeal No. 880/2001 filed by Smt. Jangir Kaur is allowed. The sentence and conviction passed vide judgment dated 7.11.2001 against Smt. -16- Jangir Kaur is set-aside and she is acquitted for the offences under Sections 302/149, 147, 148, 324/149 and 323/149 IPC. D.B. Cr. Appeal No. 880/2001 filed by accused-Darshan Singh, Balvir Singh and Manjeet Singh is partly allowed. Their sentence and conviction passed vide judgment dated 7.11.2001 under Section 302/149, 324/149, 323/149 and 148 IPC is set-aside, but they are convicted under Section 302/34, 324/34, 323/34 IPC. For the offence under Section 302/34 IPC each one is sentenced to undergo life imprisonment with a fine of Rs.1,000/-; in default of payment of fine each to further imprisonment of six months. Each one is also sentenced to undergo for two years rigorous imprisonment for offence under Section 324/34 IPC and also one year for the offence under Section 323/34 IPC. The conviction and sentence of accused- Gurbachan Singh awarded under Sections 302/149, 147, 148, 324/149 and 323/149 IPC is set-aside. He is acquitted for the same charges, but he is convicted under Section 323 IPC. HE was in custody since 9.11.2000 to 14.12.2005. He has already served the maximum punishment provided for the aforesaid offence. He is on bail and his bail-bonds stand cancelled. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-