Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 566

SUPREME COURT OF INDIA
L. NAGESWARA RAO, B.R. GAVAI, B.V. NAGARATHNA, JJ.
Indrapal Singh and Others - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal Nos. 313-314 of 2020
Decided On : 21-09-2021

Advocates appeared:
For the Appellant(s) :Mr. Divyesh Pratap Singh, AOR Ms. Pratiksha Tripathi, Adv. Ms. Shivangi Singh, Adv. Mr. Vikram Pratap Singh, Adv. For Respondent(s) Mr. Dhirendra Singh Parmar, Adv. Mr. Krishnanand Pandeya, AOR Mr. Rajesh Srivastava, Adv. Ms. Shreyase Agrawal, Adv.

IMPORTANT POINTS
To attract the applicability of section 34 of the IPC the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan.
In the absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack the man each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for the act of any or the other.

Headnote:
Indian Penal Code, 1860 – S. 302 S.34 - Code of Criminal Procedure, 1973 – S. 313 – Offence of Murder – Appeal against conviction – Benefit of doubt – Common intention of accused persons – Determination of – To attract the applicability of section 34 of the IPC – Ingredients under – Whether material contradictions and improvement in the statement of the informant as well as the depositions – Whether prior enmity and no other independent witness has supported the case of the prosecution –Section 34 of the IPC was rightly invoked along with Section 302 vis-a-vis the accused there being no contra evidence on behalf of the defence to explain as to why they all went together to the spot with fire-arms and shot at the deceased. On the other hand, the antecedent enmity between the accused and the victims as narrated in detail by PW-1 clearly brings out the fact that there existed a common intention on the part of the accused inasmuch as they went together armed with guns in broad day light to the land where the victims were engaged in irrigation. Also the manner in which the crime was executed clearly establishes a concerted action on part of the accused - Evidence on record, particularly, the ocular testimony of PW1 and PW2 made it clear that the three victims sustained injuries on account of the use of the fire arms against them which was on the exhortation of the fourth accused - The High Court has also found that he did not have any separate defence so as to make a dent in the case of the prosecution as far as he was concerned – There is no explanation by the defence as to why all the four assailants came together and three of them were with fire-arms - Incident occurred in broad-day light and the complaint given by PW1 within two hours of the incident could not be an exact narration of the incident with minute details, but the FIR contained ingredients so as to register an FIR under section 302 and Section 302 read with Section 34 against all the accused. The fact that PW1 and PW2 were related would not in any way discredit their evidence as the same is consistent. (Paras 31,34,and 35)
Facts of the Case:
Whether common intention of all accused to commit murder proved beyond reasonable doubt – Appellants armed with his licensed rifle half gun (Addhi guns) killed deceased – Trial Court, on the basis of oral evidence and upon perusal of the material on record, convicted and sentenced the accused- appellants as stated above. The trial court found that date, time and place of the incident, the manner in which the incident had taken place and implication of the accused persons in respect of charges leveled against them had been duly proved by the prosecution. Accordingly, they were found guilty and sentenced - High Court of Allahabad on considering the arguments of the respective counsel and the material on record, dismissed the appeals.
Finding of the Court:
To attract the applicability of section 34 of the IPC the prosecution is under an obligation to establish that there existed a common intention which requires a prearranged plan. That before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all. In the absence of a prearranged plan and thus a common intention, even if several persons simultaneously attack the man each one of them would be individually liable for whatever injury he caused and none could be vicariously convicted for the act of any or the other. Thus, it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis - There is no explanation by the defence as to why all the four assailants came together and three of them were with fire-arms and Rajbahadur Singh had a Danda (Stick) with him. The incident occurred in broad-day light and the complaint given by PW1 within two hours of the incident could not be an exact narration of the incident with minute details, but the FIR contained ingredients so as to register an FIR under section 302 and Section 302 read with Section 34 against all the accused. The fact that PW1 and PW2 were related would not in any way discredit their evidence as the same is consistent.
Result: Appeal dismissed

JUDGMENT :

NAGARATHNA, J.

These appeals have been preferred by the three appellants-accused being aggrieved by the impugned judgment and order dated 31.07.2018 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos.2095 of 1998 and Criminal Appeal No.2177 of 1998. The High court dismissed the aforesaid appeals, and confirmed the judgment and order dated 28.09.1998 in Sessions Trial No. 10/96 passed by the Second Additional Sessions Judge, Jalaun at Orai, by which, the accused-appellants were convicted for the offence under section 302 of the Indian Penal Code, 1860 (for short, the ‘IPC’) against Atar Singh, Shivpal Singh and Keshbhan Singh and have been sentenced to undergo life imprisonment. They have also been convicted under Section 302 read with Section 34 of IPC.

2. The case of the Prosecution is that Exb. Ka-1 is the written report made by the complainant Yashwant Singh to the Police Station Jalaun. According to the complainant on 22.10.1995, at about 11:00 a.m., complainant’s brothers, viz., Atar Singh and his two nephews Keshbhan Singh and Shivpal Singh were carrying water from the drain (Gul) below the Babool tree to their field known as “7 Bhigas of land” through a pump set and tractor for irrigation of the aforesaid land. The incident took place near the drain (Gul) under the Babool tree adjacent to complainant’s field when Raj Bahadur Singh, Inder Pal and Surender Pal Singh and Ram Pal Singh alias Raja Beta came to the complainant‘s field from the village. Inder Pal Singh was armed with his licensed rifle and Ram Pal alias Raja Beta and Surender Pal Singh were armed with their half gun (Addhi guns) of 315 bore. As soon as they came there, Raj Bahadur Singh exhorted his sons, “there is a good opportunity today, kill them”. Thereupon, Inder Pal Singh fired gunshots at Atar Singh and Shivpal Singh, as a result of which, both died instantly. On hearing the sound of the gunshots, the complainant’s nephew namely, Keshbhan Singh came running towards the field and Ram Pal Singh alias Raja Beta fired gunshot towards him and as a result, he fell down and died on the spot.

3. According to the complainant, at the time of the incident, he and his nephews Narendar Pal Singh and Shiv Sagar Singh and a servant Jawahar Lal S/o Chhadami and Babu Singh S/o Mukut Singh were standing near the pump set and tractor and they all witnessed the incident. The Complainant and all the witnesses were standing in fear as the gun shots were fired to threaten them. After killing the aforesaid three individuals, all the accused went away towards the village saying, “they had settled the score of their personal and electoral enmity”. According to the complainant, the dead bodies of the three deceased viz., Atar Singh, Keshbhan Singh and Shivpal Singh, were lying on the spot. Therefore, the complainant requested that the report be lodged and appropriate action be taken on receipt of the Complainant’s First Information Report (FIR).

4. Report of the incident (FIR) (Exb. Ka-1) was lodged at Police Station Kotwali at Orai, District Jalaun, as Case Crime No. 817/95 under Sections 302 and 302/34 IPC against the four accused on the same day.

5. Sri C.B. Singh, Station House Officer (PW-8) was entrusted with the investigation and he proceeded to the spot and prepared Punchnama of the three dead bodies i.e. exhibits Ka-37, Ka-38 and Ka-39. On completion of the requisite formalities including sealing of blood stained soil, empty cartridges, preparing the Inventory etc., Investigating Officer (IO) sent all the three dead bodies to the District Hospital for post-mortem. Autopsy on the dead bodies of the deceased was conducted by PW4 Dr. M.C. Mittal, on 23.10.1995 and he submitted the post-mortem report. Thereafter, statements of the witnesses were recorded by the IO (PW8). On receipt of the post-mortem report, forensic report and recording of statements of witnesses and collecting evidence, the IO submitted charge-sheet against the accused-appella