2003 Supreme(SC) 1098

2003(8) Supreme 178
SUPREME COURT OF INDIA
(From Rajasthan High Court)
S. Rajendra Babu & P. Venkatarama Reddi, JJ.
Preetam Singh & Ors.  -Appellants
versus
State of Rajasthan -Respondent
Criminal Appeal No. 449 of 1994
With
Criminal Appeal No. 450 of 1994
Decided on 4-11-2003
Counsel for the Parties :
For the Appellants : Har Dev Singh, Sr. Advocate, Dinesh Kumar Masant, Ms. Madhu Moolchandani, Advocates.
For the Respondent : Ms. Sandhya Goswami, Sushil Kumar Jain, Ms. Anjali Dhoshi and Ms. Ruchi Kohli, Advocates.

IMPORTANT POINT
While the nature of injuries inflicted by the accused may be a circumstance to be taken into account to infer common intention to kill the deceased or to inflict such injuries which could, in the ordinary course of nature, be sufficient to cause death, the Court has to weigh the surrounding circumstances.

Headnote:(i) Indian Penal Code, 1860-Sections 304-I/34 and 148-Culpable homicide not amounting to murder-Three head injuries, two on scalp and one on left parietal region-Ill feelings developed between parties, having adjoining fields-Appellants went prepared for a fight and provoked complainant party and initiated quarrel-Mutual fight with weapons after deceased was attacked by appellants-Recovery of ammunition from pocket of deceased would indicate only preparedness and proclivity of deceased to mount an attack-Deceased was unarmed-Appellants who were admittedly armed were aggressors-Plea of private defence not available to appellants-Whether conviction of appellants under Section 302 rw/s 34 would be sustainable-(No)-Offence committed by appellants 1 to 3 would be culpable homicide punishable under Section 304-I, IPC and Section 148 IPC.

       Held : Though, there is a strong possibility that the deceased Pyara Singh would have played an active role in the free fight that occurred, the finding of the High Court that he was unarmed cannot be upset. The reason given by the High Court in support of this conclusion cannot be said to be irrelevant or perverse. The High Court did not accept the version of the accused that Pyara Singh first attacked the accused and inflicted an injury on Preetam Singh (Appellant) with his weapon. In the face of these findings of the High Court and in view of the further finding that the appellants who were admittedly armed were in fact the aggressors, the question of the appellants exercising the right of private defence or exceeding it does not arise. The plea of private defence is not at all available to the appellants as rightly held by both the Courts. As regards the incised injury found on the left parietal region of Preetam Singh, the evidence discloses that it was attributable to PWs 1 and 3 who launched an attack when the injured Pyara Singh was being dragged away. The mere fact that in the F.I.R. the injuries to Preetam Singh and others were not mentioned, is no ground to discard the injured eye-witnesses version in this behalf. (Para 17)

       The appellants went prepared for a fight and provoked the complainant party and thus initiated the quarrel. True, there was a mutual fight with weapons after Pyara Singh was attacked, but it is not the same thing as a sudden fight preceded by a sudden quarrel. Moreover, the appellants have obviously taken undue advantage of the fact that Pyara Singh was unarmed and chose him as a convenient target in the first instance. For these reasons, we are of the view that the application of Exception (4) to Section 300 should be ruled out. (Para 18)

       In the present case, there are three head injuries, two on the scalp and one on the left parietal region. The first two injuries are, undoubtedly, fatal injuries. As a result of those injuries, multiple fractures of right parietal bone occurred, the membranes got severed and there was injury to brain matter. As regards the third injury, which is an incised wound of 2" X 1" on the left parietal region, it cannot be said for certain that in the ordinary course it would have caused death. The medical evidence is silent on this aspect. The doctor did not even say what impact this 3rd injury had internally. All the three appellants inflicted injuries on the head of the deceased with the weapons in their hands according to the prosecution witnesses. There is an allegation that after the deceased fell down all the three went on giving blows on the leg and waist. Certain injuries were found on the knee joint, elbow joint and left fore-arm of the deceased. On the basis of evidence on record, it would be difficult to say which of the two appellants caused the two fatal injuries and which other appellant inflicted injury No.3. Hence, individual responsibility cannot be fixed on appellants 1 to 3 for various injuries that were inflicted. (Para 20)

       Considering the facts and reasonable probabilities, it is not safe to conclude that the three accused at any point of time harboured the common intention crystallized by prior meeting of minds to put an end to the life of Pyara Singh. At any rate, there is room for reasonable doubt. We are of the view that the real common intention that can be safely imputed to the appellants 1 to 3 was to cause bodily injuries to Pyara Singh which were likely to cause death. It is this common intention which, in our view, had developed on the spot. Therefore, the offence committed by appellants 1 to 3 would be culpable homicide not amounting to murder and they are liable to be convicted and punished under Section 304 (Part I). They are also liable to be convicted under Section 148 IPC for the offence of rioting. On the basis of the evidence on record and the findings recorded by the High Court, there is no escape from the conclusion that the appellants were members of unlawful assembly of five or more persons having the common object falling within the scope of Clause (iii) of Section 141, though the common object was not to kill or hurt the deceased person. (Para 21)

       (ii) Indian Penal Code, 1860-Section 34-Common intention-Constructive criminal liability, determination of-Pre-arranged plan and meeting of minds to commit a particular offence-Deceased was attacked at the very start of the fight and given deadly blows by two of the appellants while three appellants participated in the attack-Common intention developed at time of incident.

       Held : There was undoubtedly a free fight in which even the appellants suffered severe injuries. That is the finding of the High Court. At the same time, it should be noted that Pyara Singh was attacked at the very start of the fight and given deadly blows by two of them while three of them participated in the attack. The reasonable inference to be drawn from the sequence of events emerging from the evidence is that when Pyara Singh actively intervened and endeavoured to ward off the attack, the three appellants would have been irked by his behaviour and entertained the common intention to cause injuries to him. The fact that such common intention had developed then and there is clearly evident from the conduct of all the three appellants acting in concert in attacking him. They would not have intended to kill him but definitely intended to silence him by inflicting injuries. While the nature of injuries inflicted by two of them may be a circumstance to be taken into account to infer common intention to kill the deceased or to inflict such injuries which could, in the ordinary course of nature, be sufficient to cause death, the Court has to weigh the other circumstances adverted to above which rule out the intention to kill Pyara Singh. (Para 21)

       Result : Appeals disposed of accordingly.