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SUPREME COURT OF INDIA
SANJIV KHANNA, SUDHANSHU DHULIA, JJ.
The State of Rajasthan - Appellant
Versus
Gurbachan Singh & Others - Respondents
Criminal Appeal No. 2201 of 2011
Decided On : 07-12-2022
Indian Penal Code, 1860 – Section 323 – Hurt – Conviction and sentence – Section 34 of IPC makes a co-perpetrator who had participated in offence, equally liable on principle of joint liability – For Section 34 of IPC to apply, there should be common intention among co-perpetrators, which means that there should be community of purpose and common design – Common intention can be formed at spur of moment and during occurrence itself – Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available – In most cases, whether or not there exists a common intention, has to be determined by drawing inference from facts proved – Constructive intention can be arrived at only when court can hold that accused must have preconceived result that ensued in furtherance of common intention – Common intention to inflict injuries and cause death of deceased, can be gathered from conduct and action of appellant – Evidence establishes participation of respondent in commission of offence with co-participants/co-convicts – Impugned judgment passed by High Court acquitting respondent under Section 302 of IPC set aside – Order of sentence passed by trial court imposing punishment of life imprisonment on respondent, for offence under Section 302 of IPC restored. (Paras 11, 12 and 13 )
Facts of the case:
Question in this appeal by State of Rajasthan is whether High Court was justified in setting aside conviction and sentence awarded to Gurbachan Singh under Section 302 read with other provisions of the IPC, by convicting him only under Section 323 of the IPC, in view of finding that he did not share common intention with Balvir Singh, Manjeet Singh, and Darshan Singh to cause the death of Teja Singh, as he only inflicted wounds on his feet with a ‘lathi’.
Findings of Court:
Gurbachan Singh will surrender within 21 days to undergo the remaining sentence. In case, Gurbachan Singh does not surrender within the said period, the authorities/court will take action in accordance with law to detain Gurbachan Singh, so as to undergo remaining sentence.
Result : Appeal allowed.
JUDGMENT :
Sanjiv Khanna, J.
By the order dated 01.05.2009, notice in the special leave petition was confined to the first respondent - Gurbachan Singh. The special leave petition against other respondents was dismissed. Our attention is drawn to the order dated 17.12.2008, whereby Criminal Miscellaneous Petition No. 19754/2008 preferred against the acquittal of Manjeet Kaur, stands dismissed. The case and evidence relied by the prosecution against Manjeet Kaur and Jangir Kaur is identical. We are of the opinion and reiterate that the prosecution has not been able to establish its case against Jangir Kaur. Challenge to the acquittal of Jangir Kaur is dismissed.
2. The prosecution’s case as per the charge sheet is that Teja Singh along with his brother Harbhajan Singh (PW-1) on one side, and Gurbachan Singh along with the co-convicts and brothers Darshan Singh, Balvir Singh, and Manjeet Singh, on the other side were embroiled in a dispute regarding partition of land. On 06.11.2000 at about 5 P.M., Gurbachan Singh and Balvir Singh were ploughing the plot which belonged to water works department. Teja Singh had objected to this, post which, a village meeting was held, in which both Gurbachan Singh and Balvir Singh had left for their home in anger. At about 7:30 P.M. on the same day, Harbhajan Singh (PW-1), and Jasveer Kaur (PW-2) were going to the Gurudwara in the village. At that time, Teja Singh was seen coming from the flour mill of Sohan Lal, which was near the Gurudwara. Thereupon, Gurbachan Singh and Balvir Singh, Manjeet Singh, and Darshan Singh, who hand come armed with ‘lathi’, ‘toka’, axe, and ‘gandasi’ respectively, had beaten and inflicted injuries on Teja Singh, which resulted in his death on the spot. Harbhajan Singh (PW-1) had also suffered injuries in the incident.
3. First Information Report,1[For short, “FIR”] was filed on the same day, mentions the names of Gurbachan Singh, Darshan Singh, Balvir Singh and Manjit Singh, and also the names of Jangir Kaur and Manjeet Kaur, who were statedly present at the place of occurrence. However, as per the FIR, no specific acts, verbal or physical in nature, were attributed to Jangir Kaur and Manjeet Kaur.
4. The trial court, vide judgment dated 07.11.2001 had tried and convicted Gurbachan Singh along with others namely, Balvir Singh, Manjeet Singh, Darshan Singh, and Jangir Kaur under the following provisions of the Indian Penal Code, 1860,2[For short, “IPC”] :
(a) Section 302 read with Section 149 of the IPC- Life imprisonment and fine of Rs.1000/- each, with default stipulation of 2 months simple imprisonment;
(b) Section 324 read with Section 149 of the IPC- One and half years' rigorous imprisonment and fine of Rs.500/- each, with default stipulation of one-month simple imprisonment;
(c) Section 323 read with Section 149 of the IPC- 3 months rigorous imprisonment and fine of Rs. l00, with default stipulation of 7 days simple imprisonment; and
(d) Section 148 of the IPC - one year rigorous imprisonment and fine of Rs.100/- each, with default stipulation of 7 days simple imprisonment.
Manjeet Kaur was tried separately in the year 2004, as she had absconded. She was convicted by the trial court, which conviction was set aside by the High Court. The judgment of acquittal in her case has become final.
5. On appeal preferred by Gurbachan Singh, Balvir Singh, Manjeet Singh, Darshan Singh, and Jangir Kaur, the Division Bench of High Court of Judicature for Rajasthan at Jodhpur, vide judgment dated 04.04.2008, allowed the appeal filed by Jangir Kaur and has acquitted her. The appeal of Gurbachan Singh was partly allowed as his conviction under Section 302 read with 149, Section 147, Section 148, Section 324 read with 149, and Section 323 read with 149 of the IPC was set aside, and he has been convicted under Section 323 of the IPC for the injuries caused to Teja Singh, and was directed to be released, as he had suffered the maximum punishment provided for the offence. Conviction of Balvir
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