1978 Supreme(Raj) 356
RAJASTHAN HIGH COURT
M.C.Jain, J.
Ramdan and another - Appellant
Versus
The State of Rajasthan - Respondent
S.B. Criminal Appeal No. 86/1974.
Decided On : 6-11-1978
Advocates:
For the Appellant:Rajendra Mehta, Advocate.
For the Respondent: N.P. Gupta, Public Prosecutor.
The application of Section 34, Indian Penal Code, requires proof of a common intention among the accused persons to commit a crime, which must be established through direct evidence or compelling circumstances. Mere presence at the scene of the crime or similar intentions are not sufficient to establish common intention.
Headnote:
CRIMINAL APPEAL - SECTION 307/34, 353 INDIAN PENAL CODE - COMMON INTENTION - APPLICATION OF SECTION 34, INDIAN PENAL CODE - INTERPRETATION OF EVIDENCE - FACTUAL ANALYSIS - CONVICTION AND SENTENCE - FINAL DECISION
Fact of the Case:
The appellants, Ramdan and Sumar, were convicted under Sections 307/34 and 353 of the Indian Penal Code for their involvement in an encounter with a Border Security Force (BSF) party. They were sentenced to five years' rigorous imprisonment and a fine of Rs. 200, with an additional one month of rigorous imprisonment in default of payment of the fine. The incident occurred on April 30, 1970, when the BSF party observed footprints of four camels entering Indian territory from Pakistan. They followed the tracks and encountered the appellants and other accused persons on a sand dune. A shootout ensued, resulting in the arrest of the appellants and the recovery of smuggled goods and weapons.
Finding of the Court:
The court analyzed the evidence presented by the prosecution and the defense to determine the applicability of Section 34, Indian Penal Code, which deals with common intention. The court noted that the prosecution failed to establish beyond a reasonable doubt that the appellants had formed a common intention with the other accused persons to shoot and kill the BSF party members. The court also found that the evidence regarding the appellants' participation in the encounter was vague and inconsistent, leaving room for reasonable doubt.
Issues: 1. Whether the appellants had formed a common intention with the other accused persons to shoot and kill the BSF party members, thereby attracting the application of Section 34, Indian Penal Code. 2. Whether the evidence sufficiently established the appellants' participation in the encounter.
Ratio Decidendi: The court held that the prosecution failed to prove the essential elements of common intention and participation required for the application of Section 34, Indian Penal Code. The court emphasized the need for direct evidence or compelling circumstances to establish a common intention, and found that the evidence presented in this case did not meet this threshold. The court also noted the inconsistencies in the prosecution's evidence regarding the appellants' participation in the encounter, raising reasonable doubt about their involvement.
Final Decision: The court set aside the appellants' convictions and sentences for offenses under Sections 307/34 and 353 of the Indian Penal Code. The court found that the evidence did not support the application of Section 34, Indian Penal Code, and that the appellants' participation in the encounter was not proven beyond a reasonable doubt.
JUDGMENT
1. - The appellants Ramdan and Sumar have been convicted Under Section 307/34, Indian Penal Code, and have been sentenced to five years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to undergo further rigorous imprisonment for one month. They have also been convicted Under Section 353, Indian Penal Code, and have been sentenced to six months' rigorous imprisonment by the learned Sessions Judge, Jodhpur, by his judgment dated 24th January, 1974. Their sentences have been ordered to run concurrently.
2. The prosecution case, in brief, is that on 30th of April, 1970, head constable Jangbahadur along with his party proceeded for patrolling. At about 6, p.m, they observed the foot prints of four camels having entered into Indian Border from towards Pakistan Border on pillar No. 783. The foot prints were followed by the party. Constable Thakurram was sent to the out-post Sundra to give information regarding the track There upon, Thakurram reached Sundra out-post at about 6.00, a.m. on 1-5-1970. Lakhiram along with his party also started at about 7.00, a.m., on 1-5-1970 to follow the tracks and they reigned the village Satto and the other pany met Lakhiram s party at village Satto. Jangbahadur's party was sent back to the out-post Sundra and the track was further continued to be followed by Lakhirain's party from village Satto. This party reached the out-skirts of the village Bogniyai. It was observed that the foot-prints of the two camels were diverted towards village Negarda and of the two camels proceeded straight. When these straight foot-prints were pursued. The party spotted the camels and persons on a sand dune. It is said that on hearing the sound of the vahicle those persons started running and thereafter they took position and vlien the party got down from the vehicle and were about to take their positions, the accused party started firing at them. The firing is said to have taken ac about 2.00, p.m. It is laid that the accused party continued firing and the B.S.F. party also ill' retaliation fired at the accused party. They continued to proceed ahead, whereas the accused party continued to retreat. The encounter lasted for about an hour and the police party ultimately reached near the three camels and apprehended the appellants. Three accused persons could manage to make their escape good. The goods and the belongings of the accused party were seized. It is said Jamal and Hamira were the persons who were firing at the B.S.F. party and they could not be apprehended at the spot and one more accused could not also be caught. Empties of the accused party as well as of the B.S.F. party were recovered from the spot. It is said that the accused party fired 23 rounds, whereas the B.S.F. party fired 32 rounds in defence. Lakhiram's party reached Gadra post on 2 5-1970 in the noon where the smuggled goods were deposited with the Customs Authority. On the same night at about 11 00, p.m., Lakhiram with his party along with Sumar and Ramdan leached the Police station, Girab. He made a written report Ex. P/6 to the SHO., Police Station, Girab, and handed over both the accused persons along with the empties and the live cartridges Since the place of incident fell within the jurisdiction of the Police Station, Sang are carbon copy of the report Ex. P/6 was sent to the Police Station, Sangar. On receipt of the report at the Police Station, Sangar, a case Under Sections 307, 353, Indian Penal Code, and 25E of the Arms Act was rfgistered. The investigation of the case was handed over to the head constable Laxmansingh of Police Station, Sangar, who visited the site and prepared the site plan Ex P/1 and site notes Ex. P/2. The accused Hamira and jamal were also anested by him. Investigation was conducted from the witnesses and on completion of the investigation a challan was presented against Jamal, Hamira, Sumar & Ramdan in the court of Munsif Magistrate Jaisalmer. The learned Munsif-Magistrate, Jaialm
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