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2017 Supreme(UK) 369
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAJIV SHARMA, SHARAD KUMAR SHARMA, JJ.
State of Uttarakhand - Appellant
Versus
Narendra – Respondent
Government Appeal No.15 of 2011
Decided on : 10-11-2017
Advocate Appeared:
For the Appellant : Mr. Amit Bhatt, Dy. A.G.
For the Respondent:Mr. Rajendra Singh, Advocate, Mr. Sandeep Kothari, Advocate
Headnote:
Indian Penal Code, 1860, Secs. 302/34, 325/34, 323/34 and 149 – Conviction for the offences under – Non-applicability of Sec. 149, Indian Penal Code is no bar for the purpose of convicting the accused u/s 302 r/w Sec. 34, IPC – If the evidence discloses the commission of an offence, in furtherance of the common intention of such accused – This is because, both, Sections 149 and 34 Indian Penal Code deal with a group of persons who become liable to be punished as sharers in the commission of an offence – Further held that in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more – The court can simply convict the guilty persons with the aid of Sec. 34, IPC provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. (Paras 35 to 47)
Hkkjrh; n.M lafgrk] 1860] /kkjk 302@34] 325@34] 323@34 vkSj 149 & vUrxZr vijk/kksa ds fy, nks"kflf) & /kkjk 149] Hkkjrh; n.M lafgrk dh viz;ksT;rk ck/; ugha] vfHk;qDr dh vUrxZr /kkjk 302 lifBr /kkjk 34] Hkkjrh; n.M lafgrk nks"kflf) ds fy, & vxj lk{;ksa }kjk vijk/k dkfjr dk [kqyklk gksrk gS] dfFkr vfHk;qDr ds lkekU; vk'; lfgr & ;g blfy, gS D;ksafd /kkjk 149 vkSj 34] Hkkjrh; n.M lafgrk mu O;fDr;ksa ds lewg ls O;ogkj djrh gS] ftUgsa vijk/k esa Hkkxhnkj gksus ds fy, nf.Mr fd;k tkuk gS & vkSj ;g fd tc vfHk;kstu i{k fl) djus esa vlQy gks fd vlafo/kkfud lHkk ds lnL;ksa dh la[;k 5 ;k vf/kd Fkh & rc vnkyr }kjk /kkjk 34] Hkkjrh; n.M laafgrk dh enn ls nksf"k;ksa dks vijk/kh ?kksf"kr fd;k tk ldrk gS] c'krsZ fd i;kZIr lk{; miyCèk gksa fd dfFkr vijk/kh dk iz'u esa vijk/k dkfjr dk lkekU; vk'; FkkA
¼izLrj 35 ls 47½
Rajiv Sharma, J.
The State has come up in appeal challenging the judgment dated 30.7.2010 rendered by learned Additional Sessions Judge, Roorkee, District Haridwar in S.T. No.233 of 2009, whereby the respondents, who were charged with and tried for the offences of Section 147, 148, 323/149, 307/149, 302/149, 452 and 506 IPC, were acquitted.
2. Case of the prosecution in a nutshell is that an FIR was lodged by PW1 Vikram Singh, to the effect that on 8.5.2008 at 6 PM, Narendra armed with Lathi, Pushpendra armed with Palkati, Manoj armed with Ballam, Shiv Pal armed with Spade, Jaipal armed with knife and Pratap armed with iron rod, came to his compound. They attacked Dheer Singh. After hearing the commotion, Vikram Singh, Kunwar Singh, Smt. Rajbala, Sujit Singh, Abhijit Singh, Amit and Himanshu came on the spot. They persuaded the respondents not to beat Dheer Singh. All the respondents attacked them with their respective weapons due to which they received serious injuries. All the injured were taken to the hospital where Himanshu was declared dead.
3. The post-mortem was conducted on the dead body. The F.I.R. was registered. The matter was investigated and the Challan was put up after completing all the codal formalities.
4. Prosecution has examined as many as twenty one witnesses in support of its case.
5. Respondents were also examined u/s 313 Cr.P.C. They denied the case of prosecution. According to them, they were falsely implicated.
6. Respondents were acquitted by the Trial Court, as noticed hereinabove. Hence this appeal.
7. Learned Dy. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved its case against the respondents beyond reasonable doubt.
8. Learned Counsels, appearing for the respondents, have supported the judgment dated 30.07.2010.
9. We have heard learned counsel for the parties and perused the entire material available on record carefully.
10. PW1 Vikram Singh testified that on 7.5.2008, he had no altercation with the respondents. On 8.5.2008 at about 6 PM, some people armed with Lathis, Palkati, Ballam, Spade, knife and iron rod trespassed into his compound. All of a sudden, they attacked Dheer Singh. On hearing the noise, he along with Kunwar Singh, Rajbala, Abhijit Singh, Sujit Singh and Himanshu came on the spot. They were also attacked by the assailants. He collapsed. He could not identify the assailants due to sudden attack. He was declared hostile and cross-examined by learned ADGC. In cross-examination, he deposed that he had not got the report written but he only signed the same.
11. PW2 Ashok Verma deposed that he was a milk vendor. He saw many people near the house of Dheer Singh. He reached there. He saw that Dheer Singh and 3-4 other people were lying injured. He removed them to Roorkee hospital. Himanshu was declared dead. Others were medically examined. He was also declared hostile and was cross-examined by learned ADGC.
12. PW3 Zulfkar deposed that on 8.5.2008 at about 6-6:30 PM, he did not hear any noise from the house of Dheer Singh. According to him, respondents have not given beatings to the complainant party i.e. Dheer Singh, Abhijit, Sujit, Himanshu, Rajbala and Amit. He was also declared hostile and was cross-examined by learned ADGC.
13. PW4 Suleman has also not supported the prosecution case and was declared hostile.
14. PW5 Dheer Singh is the material witness. He is the eyewitness. According to him, on 8.5.2008 at about 5-6 PM, he was sitting in the verandah of his house near the water tap. Shiv Pal armed with a spade, Jaipal armed with a knife and Pratap armed with an iron rod, trespassed into his house. Pratap Singh attacked him with an iron rod. He tried to save himself due to which he received injury on his thumb. He shouted for help. Himanshu reached on the spot. He asked the afore-named respondents as to why they were attacking his uncle. Shiv Pal gave a blow of spade on the head of Himanshu. His son Amit and wife Rajbala also rea
