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2005 Supreme(UK) 323
2007 N.C.C. 60
UTTARANCHAL HIGH COURT
Hon’ble Mr. Justice J.C.S. Rawat
NARESH alias JIPPI alias MUMMA & ORS. – Appellant
Versus
STATE OF UTTARANCHAL – Respondent
Criminal Appeal No. 1037 of 2001
(Old Number 2039 of 1982)
Decided on : 04.08.2005
For the Appellant : Mr. Arvind Vashistha, Learned Counsel
For the Respondents: Mr. Lalit Verma, A.G.A. for the State
Headnote:(A) Indian Penal Code 1860 – Sec. 333 read with Sec. 34 – Excise Act Section 60(1)(a) Accused/Appellant convicted under above section – Appeal against conviction – According to G.D. Police party alongwith recovered articles reached at 2.00 a.m. at the police station – In the ocular testimony of the witnesses that the police party alongwith the injured reached at police station at 2.45 a.m. or 3.00 a.m. – Then they lodged the F.I.R. and injured was sent to the hospital – Doctor has categorically stated in his evidence that he examined the injured at 1.25 a.m. – A.G.A. tried to explain the circumstances and contended that it was due to mistake – But Doctor has not given any explanation as to the mistake occurred – Thus the omission and lapse on the part of prosecution is material and this fact totally belies the prosecution evidence – Appeal is liable to be allowed. Conviction and sentence are set-aside. (Para 10, 15)
(B) Common Intention – Indian Penal Code 1860 – Section 34 – The section gives statutory recognition to the principal – That if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done individually – Such pre-concert or preplanning may develop on the spot or during the course of commission of offence – But the crucial test is that such plan must precede the act constituting an offence – Common intention can be formed previously or in the course of occurrence and on the spur of moment. (Para 11)
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1. This a criminal appeal against the judgment and order dated 28.06.1982 passed by Sri V.K. Agrawal the then Addl. Sessions Judge, Dehradun in S.T. No. 67 of 1979 u/s 307/333 IPC and S.T. No. 2 of 1980 and S.T. No. 103 of 1980 u/s 60 Excise Act State Vs. Naresh and another whereby the learned Addl. Sessions Judge convicted and sentenced the appellant Naresh to undergo R.I. for a period of four years and a fine of Rs. 500/- under section 333 IPC and to undergo rigorous imprisonment for a period of six months and a fine of Rs. 500/- u/s 60(1)(a) Excise Act. In default of payment of fine he shall undergo R.I. for six months in each count. Both the sentences shall run concurrently. The appellant Rameshwar was convicted and sentenced to undergo R.I. for four years and a fine of Rs. 500/- u/s 333 read with section 34 IPC. In default of payment of fine he shall further undergo R.I. for six months and a fine of Rs. 500/- u/s 60(1)(a) Excise Act. In default of payment of fine he shall undergo R.I. for six months. Both the sentences shall run concurrently.
2. The prosecution case, in brief, is that Head Constable Ballabh Singh (PW-3) alongwith constable Devki Nandan (PW-4) and constable Mahendra Pal on 9.7.1979 at 11.30 p.m. started from the police out post for patrol duty. While on patrol duty they received information that two persons were coming on scooter carrying illicit liquor. They tried to procure independent witnesses but none was available. Believing this, the police party took position on the side of a culvert. At about 12.30 a.m. the police party saw a scooter coming from the side of Panditwari. The police party asked them to stop the scooter but they did not stop the scooter. The scooter hit Devki Nandan PW-4 due to which he received injuries on his leg and he fell down. The scooter also fell down on the ground. The two persons tried to run away but the police arrested them. On enquiry by the police they told their names as Naresh and Rameshwar, the present appellants. On their search plastic jerricane filled with illicit liquor was recovered from the appellant Naresh and a bag having two bladders were also recovered from the possession of appellant Rameshwar alias Munna. The seized articles were sealed on the spot and recovery memo Ex. Ka-4 and Ex. Ka-5 were prepared. The recovered articles and the appellants were brought to the police station where written report Ex. 6 was lodged by Head Constable Ballabh Singh (PW-3). On the basis of written report chick report Ex. Ka-11 was prepared and a case was registered against the appellant vide G.D. entry Ex. Ka-15. The investigation was conducted by S.I. D.P. Sirohi who visited the spot and prepared site plan Ex. Ka-12. The injuries of Devki Nandan were examined by Dr. R.P. Singh PW-5 on 9.7.1979 at 1.25 a.m. There were two abrasions on his person and swelling deformity in right knee and x-ray was advised vide injury report Ex. Ka-8. The illicit liquor recovered from the possession of the appellant was sent for chemical examination. The illicit liquor was examined by Dr. K.L. Bahal PW-1 Excise Inspector vide his reports Ex. Ka-1 and Ex. Ka-2. The injuries of both the appellants were also examined by Dr. R.P. Singh and their injury reports are Ex. Ka-8 and Ex. Ka-9. There were 8 abrasions on the body of appellant Naresh and swelling on the body of appellant Rameshwar. After completing the investigation the Investigating Officer submitted charge sheets Ex. Ka-14 and Ex. Ka-15 against the appellants.
3. Charge was framed against the appellant Naresh u/s 307 IPC and 333 IPC to which he pleaded not guilty and claimed to be tried. Charge was also framed against the appellant Rameshwar u/s 307/34 IPC and 333/34 IPC. He denied the charge and claimed trial.
4. The prosecution in support of its case examined PW-1 K.L. Bahal Excise Inspector, PW-2 Dr. K.K. Malhotra, PW-3 H.C. Ballabh Singh, PW-4 Constable Devki Nandan and PW-5 Dr. R.P. Singh.
5. In the statement recorded u/s 313
