2002 Supreme(SC) 820

2002(5) Supreme 378
Supreme Court of India
(From Punjab & Haryana High Court)
N. Santosh Hegde and D.M. Dharmadhikari, JJ.
Harjit Singh & Ors. —Appellants
versus
State of Punjab —Respondent
Criminal Appeal No. 815 of 2001
With
Criminal Appeal No. 814 of 2001
Decided on 16-8-2002
Counsel for the Parties :
For the Appearing Parties : K.B. Sinha, U.R. Lalit, Sr. Advocates, Bimal Roy Jad, Pankaj Kumar Singh, Mrs. Sunita Pandit, Ms. Kanwaljeet Kochar, S.C. Paul, C.L. Bashal, Ms. Kusum Chaudhary, Advocates.

Important Point
The three co-accused A1, A2 and A6 cannot be convicted under Sections 148 and 149 IPC. State’s appeal against acquittal is liable to dismissed and that of Accused 1, 2 and 6 is partly allowed.

Headnote:(i) Indian Penal Code, 1860—Section 302—Murder of one and injuries to other by an armed unlawful assembly—Overt act of A1 (Harjit Singh) armed with revolver—Who gave fire arm injury pleading right of self defence —Whether sustainable in the facts of the case? (No)—Result—His conviction under Section 302 IPC is correct.

       Held : We have given very careful consideration to the relevant evidence and the submissions made by the learned counsel on behalf of accused (A-1). In our opinion, in spite of infirmities in the prosecution case as highlighted above, the plea of self-defence is not available to the accused (A-1) for other reasons. There is nothing on record to disbelieve the version of the prosecution witnesses that three accused as members of the first party armed with lethal weapons came on the tractor and challenged the deceased who was asserting his right on piece of land over which he had placed his stock of wood. The first party has, therefore, a serious grievance against the deceased. Accused Harjit Singh (A-1) was member of the Panchayat and as per his own defence version, he was making efforts through the Panchayat and Revenue Authorities to get the land cleared from encroachment of the deceased so that access through the path to their houses remains unobstructed. His version is that he was attracted by the noise of quarrel between the accused who had first arrived on the spot and the deceased. He admits that on hearing Raula or commotion, he went to the spot with his revolver. He as a member of the Panchayat with other accused wanted that the encroached land be cleared for access to the houses of the accused. His rushing towards the spot with revolver in his hand clearly indicates that he had gone there to help the three other co-accused who had reached the spot before him on a tractor with weapons in their hands. The accused Harjit Singh (A-1), thus, joined the three accused who had earlier reached on the spot on tractor. He was, therefore, one of the members of the aggressor party and had joined others on the spot with his revolver. He being one of the aggressors can claim no right of self-defence. His plea that being on the hit list of terrorist he always carried his licensed arms does not satisfactorily explain his conduct of rushing towards the spot with revolver. Accepting the defence version that the deceased fired at the accused (A-1) and seriously injured him on the legs, it can be said to be an act committed by deceased in exercise of his (deceased s) right of private defence. In such circumstances, if the deceased had first fired at the accused (A-1), as the latter arrived on the spot with a revolver, the right of private defence was available to the deceased and not to the accused. Not much importance can be attached to the fact that there was serious lapse on the part of Investigating Officer in not investigating the facts leading to the cause of injuries to the accused (A-1) and the other co-accused in the same incident. It has been admitted on behalf of the accused that they had not filed any counter complaint or First Information Report against the members of the deceased party. There is no explanation for the same. Even if the accused (A-1) was admitted in hospital, nothing prevented him or other co-accused from lodging a report of commission of offence by the members of the deceased party. The plea of self-defence, therefore, is clearly an after-thought. The accused (A-1) had suffered serious fire arm injuries in the incident and could not possibly have denied his presence and participation in the incident. Accused (A-1) has, therefore, come up with the false plea of self-defence which, for the aforesaid reasons we do not find worthy of acceptance. The conviction of the accused Harjit Singh (A-1), therefore, deserves to be maintained under Section 302 IPC for causing death of the deceased. (Paras 23 & 24)

       (ii) Indian Penal Code, 1860—Sections 302/34—Murder of one and injuries to others by an unlawful assembly—Overt act of A2 (Varinderjit Singh @ Vicky)—Armed with Kirpan—Defence members of the first party only inflicted simple and grievous injuries to the complainant party—Whether sustainable? (Yes)—Result—Conviction of A2 under Section 302/34 not correct—Whether he can be convicted for lesser offence under Sections 307, 323, 324 and 326 read with 34 IPC? (Yes).

       Held : Having given our thoughtful consideration to the submissions made in the light of the evidence on record, we find that there is sufficient force in the submissions made by the learned counsel on behalf of the accused (A-2). As has been stated above since accused (A-2) was member of the first party of the accused who had come on tractor, he cannot be attributed common intention with accused Harjit Singh (A-1) who joined the first party at a later point of time with his revolver. As has already been noticed above, it has been alleged that all the accused of the first and second party were raising Lalkaras and came out of the house of Gursharan Singh. This allegation has been found to be a material improvement made by Hari Singh (PW-1) over his statement made to the ­police under Section 161 Cr. P.C. in which there is complete omission on that part of his version of Lalkaras. The evidence on record, therefore, does not show that accused Varinderjit Singh @ Vicky (A-2) had any ­common intention with accused Harjit Singh (A-1) in commission of murder of the ­deceased. The trial court and High Court, therefore, cannot be held to be right in ­convicting accused Varinderjit Singh @ Vicky (A-2) for offence under Section 302 read with Section 34 of IPC. The conviction of accused (A-2) under Section 302 read with Section 34 of IPC is, therefore, set aside and he is acquitted of the said charge. (Para 28)

       But held : On the overall discussion and appreciation of evidence we are of the opinion that the common intention would be inferred against party No. 1 who had come on a tractor with lethal weapons but not fire arms. The party No. 2 which rushed to the place of occurrence on hearing commotion cannot be held to have acted with any common intention amongst themselves. Accused Varinderjit Singh @ Vicky (A-2) cannot, therefore, be held guilty of offence under Sections 302 and 307 read with Section 34, IPC. On the basis of the allegations found to have been proved against him he caused grievous and simple injuries to the deceased and being the member of party No. 2 who had gone on a tractor with common intention to cause injuries to the deceased and the eyewitness, is liable to be convicted under Sections 326, 324 read with Section 34, IPC. His conviction and sentences imposed on him by the trial court under Section 326, 324 read with Section 34 and 322 read with Section 34 alone deserve to be maintained. (Para 33)

       (iii) Indian Penal Code, 1860—Sections 302 and 307 read with 34—Conviction of A6 (Gursharan Singh) under—Armed with double barrel gun—Member of 2nd party—Whether can be convicted for murder and attempt to murder in furtherance of common intention? (No)—Whether can be convicted for his alleged individual act? (Yes)—Result—His conviction modified—AIR 1977 SC 2236 : Relied on.

       Held : Accused Gursharan Singh had rushed on hearing commotion towards the scene of occurrence along with other co-accused who constituted party No.2. The accused who subsequently rushed towards the spot with firearms in their hands cannot be said to have gone with any common intention because there was hardly any time with them for meeting of minds. It is prosecution s own case that members of party Nos.1 & 2 both had a grudge on the stubborn attitude of the deceased because despite intervention of the Panchayat he had been asserting his right to the disputed land. It is undeniable that common intention can develop on the spur of the moment and can be inferred from the overt acts committed by the accused. We find no evidence in this case to come to a conclusion that after the members of party No. 2 rushed with firearms to the place of occurrence a common intention developed between them. As has been stated by the eyewitnesses, by the time the members of accused party No. 2 reached on the spot, the scuffle had already commenced between members of party No.1 and deceased. The appearance of the members of accused party No.2 therefore could raise an inference that they had gone to intervene in the quarrel to support the members of accused party No.1 who had already reached on the spot on a tractor. In the aforesaid circumstances we do not find any ground to infer common intention inter-se between members of party No.2 who rushed on hearing commotion towards the place of occurrence. In the absence of common intention on their part, they cannot be held vicariously liable for the commission of criminal acts of other co-accused who were members of party No.2. The accused constituting party No. 2, therefore, can only he held liable for their individual acts. See following observations of Justice Krishna Iyer speaking for this Court in Hira Lal Malik vs. State [AIR 1977 SC 2236] :

       "When a crime is committed by the concerted action of a plurality of persons constructive liability implicates each participant, but the degree of criminality may vary depending not only on the injurious sequel but also on the part played and the circumstances present, making a personalized approach with reference to each. Merely because of the fatal outcome, even those whose intention, otherwise made out to be far less than homicidal cannot, by hand sight-reading, be meant to have had a murderous kindred mens rea."

       Common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the course of commission of crime as also prior and subsequent attendant, circumstances. Mere participation in the crime with others is not sufficient to attribute common intention to one of others involved in the crime. The subjective element in common intention therefore should be proved by objective test. It is only then one accused can be made vicariously liable for the arts and deeds of the other co-accused. The members of party No.1 reached on the spot variously armed with weapons other than firearms. They declared their intention to teach a lesson to the deceased for his stubborn attitude in asserting right to a piece of land intended for common use. A common intention can be inferred on their part from their conduct in reaching the spot together on a tractor and their subsequent acts in causing grievous and simple injuries to the deceased and the eye-witnesses. The members of second party armed with firearms may have come from the same direction to the place of occurrence on hearing a commotion created due to fight between members of party No.1 on one part and the members of the deceased party on the other part but on this version of the incident the members of party No.2 cannot be said to have a common intention either amongst themselves or with members of party No.1 who had already reached the spot. The members of party No. 2 who rushed to the place of occurrence acted individually on their own impulses and reactions to the altercation which had already commenced between members of party No.1 and the deceased s party. Since the incident happened in two parts, as described above, common intention can be inferred inter-se between members of party No.1 who had earlier reached on tractor but, no common intention can be ­inferred against them with members of party No.2 who had rushed with firearms towards the place of occurrence afterwards and fired at members of the accused party. The members of party No. 2 reacted differently in their own manner and would therefore be liable for their individual acts. No common intention can be inferred on the part of members of party No.1 with members of party No.2. Looked at from this angle Gursharan Singh (A6) as per the medical report of the injured eyewitnesses can be said to have caused grievous and simple injuries by use of his firearm. Therefore, in our considered opinion he is also liable to be acquitted of the charge under Section 302 and 307 IPC read with Section 34 IPC. His conviction and sentences passed by the trial Judge under Section 326, Section 324 and 323 IPC read with Section 34 IPC or imprisonment with fines separately imposed for those offences, therefore is liable­ to be maintained. (Paras 36 to 42)

       (iv) Indian Penal Code, 1860—Sections 148 and 149—Offences under—Acquittal by High Court—Appeal by State to Supreme Court—Evidence found not clinching against the accused Inderjit Singh, Ajaib Singh and Satinder Pal Singh—Whether their acquittal by High Court needs any interference? (No)—State appeal dismissed.

       Held : In the above state of evidence which is not clinching against the accused, the conclusion of the High Court that the three acquitted accused are entitled to have the benefit of doubt cannot be said to be a wrong appreciation of evidence or so perverse as to justify taking a different view and interfere with the order of acquittal. Apart from the version of eye-witnesses discussed above, the trial court attached importance to the fact that on a disclosure statement of accused Satinderpal Singh, pistol alleged to have been used by Inderjit Singh was recovered under memorandum Ex.P-19. We have referred to the statement of Investigating Officer Puran Singh (PW-9). He is unable to explain the reason for not procuring the attendance and signature of independent witnesses on the disclosure statement Ex. P-V and memorandum of recovery Ex.P-U/1. We have noted that these memoranda have been signed only by two police officers Faqir Chand and Virsa Singh. It is unbelievable that all the accused persons who have alleged to use their fire arms/weapons kept all the arms concealed in a open field in a gunny bag ­under a heap of straw. In the absence of independent witnesses and the alleged place of concealment being accessible to public, the evidence of disclosure statement and the consequent recovery of arms and weapons do not at all inspire confidence. In any case, it is not a piece of evidence which could be relied by the trial court to convict the accused by treating it as eye-witness account. We have also heard learned counsel appearing for the State who tried to show from the evidence that the presence of three acquitted accused was fully proved by the prosecution. In appeal against acquittal, the appreciation of evidence done by the High Court, unless it appears to be unreasonable, should not be interfered with. We have ourselves looked into the whole evidence on record. In our opinion, none of the three accused persons against whom no specific overt acts have been proved can be held guilty either with the help of Section 149 of IPC or with Section 34 of IPC. Their acquittal, therefore, is sustained. As we have maintained the acquittal of three co-accused persons, the remaining three accused persons cannot be convicted under Sections 148 and 149 of IPC and their acquittal for those charges, therefore, is also sustained. In conclusion, Criminal Appeal No. 815 of 2001 preferred by the three convicted co-accused, is partly ­allowed. The conviction of appellant/accused Harjit Singh (A-1) and sentences imposed on him under Sections 302, 324, 323 & 326 of IPC are hereby maintained. He is acquitted of charges and sentences imposed on him under Section 307 read with Sections 148 & 149 of IPC. The conviction of appellant/accused Virenderjit Singh @ Vicky (A-2) under Section 302 and 307 read with Section 34 of IPC is set aside instead he is convicted under Sections 323, 324 & 326 read with Section 34 of the IPC and he is sentenced with imprisonment and fine as directed by the trial court in its judgment. His acquittal by the High Court under Section 148 and 149 of IPC is maintained. The conviction of appellant/accused Gursharan Singh (A-6) under Section 302 & 307 read with Section 34 of IPC is set aside instead he is convicted and sentenced separately as ordered by the trial court with imprisonment and fine under Sections 326, 324 and 323 of IPC. He is acquitted of charge under Section 34, IPC. His acquittal under section 148 and 149 of IPC is hereby maintained. (Paras 49 to 55)