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2016 Supreme(Raj) 1126
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Kanwaljit Singh Ahluwalia and J.K. Ranka, JJ.
Naresh Gujar and Ors. – Appellants
Vs.
State of Rajasthan – Respondent
D.B. Criminal Appeal No. 544 of 2013
Decided On : 14-03-2016
Advocate Appeared:
For the Appellant : S.S. Hasan and Ramprasad Choudhary for Sanjay Mehla
For the Respondents: Aladeen Khan, Public Prosecutor
The application of Section 34 IPC requires clear evidence of a shared intention among the accused to commit a crime, and the absence of such evidence precludes the application of the section.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302 IPC - SECTION 34 IPC - COMMON INTENTION - SECTION 307 IPC - SECTION 326 IPC - SECTION 324 IPC - SECTION 4 ARMS ACT - INTERPRETATION - APPLICATION - FACTUAL ANALYSIS - CONVICTION - SENTENCING - APPEAL - PARTIAL ALLOWANCE - SENTENCE REDUCTION.
Fact of the Case:
Four accused, including appellants Vinod @ Gappi and Naresh Gurjar, were involved in an occurrence resulting in the death of Vinod @ Fauzi and injuries to Mukesh (P.W.-9). The trial court convicted both appellants under various sections of the Indian Penal Code (IPC) and the Arms Act.
Finding of the Court:
The High Court found that appellant Vinod @ Gappi was present at the spot and caused injuries to the deceased, substantiating the conviction under Section 302 IPC. However, the court held that Section 34 IPC was not attracted in the case of appellant Naresh Gurjar as there was no evidence of common intention to commit murder. The court acquitted Naresh Gurjar of the offense under Section 302/34 IPC but convicted him substantively for offenses under Sections 307, 326, and 324 IPC and Section 4 of the Arms Act.
Issues: 1. Whether Section 34 IPC was attracted in the case of appellant Naresh Gurjar, indicating a common intention to commit murder. 2. Whether the evidence supported the conviction of appellant Vinod @ Gappi under Section 302 IPC.
Ratio Decidendi: 1. The court held that Section 34 IPC was not applicable to appellant Naresh Gurjar because there was no clear evidence of a shared intention with the other accused to commit murder. The court noted that Naresh Gurjar caused injuries to Mukesh (P.W.-9) only after the deceased had already been injured, indicating a separate act rather than a common intention. 2. The court upheld the conviction of appellant Vinod @ Gappi under Section 302 IPC, finding that the evidence, including the testimony of injured witness Mukesh (P.W.-9), established his presence at the spot and his role in causing injuries to the deceased.
Final Decision: The High Court dismissed the appeal of appellant Vinod @ Gappi, affirming his conviction and sentence. However, the court partly allowed the appeal of appellant Naresh Gurjar, acquitting him of the offense under Section 302/34 IPC and reducing his sentences for the remaining offenses.
Kanwaljit Singh Ahluwalia, J.
1. On 08.06.2006 at around 09:00/10:00 P.M. one Mukesh (P.W.-9), along with Vinod @ Fauzi son of his maternal aunt, after taking meals left the house to take evening stroll. When they reached near the culvert of canal situated at Poonam Colony, four accused, namely (i) Naresh Gurjar (ii) Vinod @ Gappi, (iii) Laxmikant @ Gariba and (iv) Vikas @ Rinku, who were sitting there armed with swords, constituted unlawful assembly for causing murder of Vinod @ Fauzi. Resultantly occurrence had ensued.
2. In the occurrence, it is alleged that all four accused caused injuries with sword to deceased - Vinod @ Fauzi and injured - Mukesh (P.W.-9). As per admitted case of prosecution, Vinod @ Fauzi was caused injury by appellant - Vinod @ Gappi and Vikas @ Rinku. So far injured - Mukesh (P.W.-9) is concerned, he was caused injury by appellant - Naresh Gurjar and Laxmikant @ Gariba.
3. Instant appeal has been preferred by Naresh Gurjar and Vinod @ Gappi under Section 374(2) of the Code of Criminal Procedure, 1973.
4. Co-accused - Laxmikant @ Gariba, who absconded, was apprehended later-on, and the trial against him has now proceeded. As per report received from the trial Court, out of thirty-two witnesses cited, only five-witnesses have been examined against co-accused - Laxmikant @ Gariba.
5. Co-accused - Vikas @ Rinku is still absconding and has not been apprehended.
6. Present appellant - Vinod @ Gappi has undergone about nine-years seven-months & twenty-two days. He had filed an application for suspension of sentence on the ground that he has undergone substantial portion of the sentence. The said prayer was declined by the Coordinate Bench. Aggrieved against the same, appellant - Vinod @ Gappi had filed Special Leave Petition (Criminal) No. 2263/2015). In the said appeal, the Supreme Court desired that the appeal be heard at the earliest.
7. Hence, present appeal has been placed before us.
8. In view of directions issued by the Supreme Court, we are seized of the appeal in which Mr. S.S. Hasan, learned counsel appearing for the accused-appellants, has addressed the arguments.
9. It will be pertinent to note here that the ld. trial Court, vide its impugned judgment dated 12.06.2013, held appellant - Vinod @ Gappi guilty of offence punishable under Section 302 I.P.C. and Naresh Gurjar guilty of offence punishable under Section 302/34 I.P.C. The ld. trial Court convicted Naresh Gurjar for offence punishable under Section 307 I.P.C., whereas Vinod @ Gappi was convicted with the aid of Section 34 I.P.C. Both; Vinod @ Gappi and Naresh Gurjar were also convicted for offences punishable under Sections 326/34 and 324/34 I.P.C. and Section 4/25 of the Arms Act.
10. Having convicted the appellants for the above said offences, ld. trial Court, vide a separate order of even date, sentenced them as under:-
Naresh Gurjar:
"For offence under Section 302/34 I.P.C. he was sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/-. In default of payment of fine to further undergo five months additional simple imprisonment.
For offence under Section 307 I.P.C. he was sentenced to undergo ten years rigorous imprisonment and to pay a fine of Rs. 3000/-. In default of payment of fine to further undergo three months additional simple imprisonment.
For offence under Section 326/34 I.P.C. he was sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 2000/-. In default of payment of fine to further undergo two months additional simple imprisonment.
For offence under Section 324/34 I.P.C. he was sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo one month's additional simple imprisonment.
For offence under Section 4/25 of the Arms Act, he was sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 100/-. In default of payment of fine to further undergo one week's additional simple imprisonment.
Vinod
