JUDGMENT
R.L. Khurana, J.
1. The abovenoted three appeals arising out of the judgment dated 20/21-11-2000 of the learned Additional Sessions Judge (II), Kangra at Dharamsala, in Sessions Case No. 31-N/7 of 1999 are being disposed of by this single judgment.
2. The three appellants, Ramesh Chand, Rakesh Kumar and Shakti Singh, hereinafter referred to as the accused, stand convicted and sentenced by the learned Additional Sessions Judge, as under :–
Offence for which convicted Sentence imposed
302 read with Section 34, Imprisonment for life
Indian Penal Code and fine of Rs. 5000/-
each.
307 read with Section 34, Rigorous imprisonment
Indian Penal Code for seven years and fine
of Rs. 2000/- each. In
default of payment of
fine imprisonment for a
further period of one
year.
3. The two substantive sentences of imprisonment were ordered to run concurrently. It was further directed that out of the amount of fine, if recovered, a sum of Rs. 15,000/- shall be paid to the parents of the deceased Surinder Singh, and a sum of Rs. 5000/- be paid to the injured PW 3 Naresh Kumar.
4. Briefly stated, the matrix of the prosecution case may be thus stated. One Baldev Singh son of Ram Saran, and brother of PW 4 Joginder Singh is a resident of village Kasial, Tehsil Fatehpur in District Kangra. He is serving at Delhi. His family comprising of his wife and children reside in the village. The deceased Surinder Singh was his son.
B. On 17-1-1999, the deceased along with P.W. 3 Naresh Kumar (a cousin by relation) had gone to Sanjhi Patti at about 10.30 a.m. for grazing their catties. At about 3 p.m. when P.W. 4 Joginder Singh returned home from the fields the found his wife and sister-in-law (brother’s wife) weeping. On his asking, he was told that one Kala (brother of accused Shakti Singh) of village Punail had informed them about the deceased Surinder Singh having been killed at Sanjhi Patti. P.W. 4 immediately went towards Sanjhi Patti. On the way P.W. 3 Naresh Kumar, who was badly injured and was bleeding, met him and told him about accused Totu alias Ramesh Chand having assaulted him with a sickle. He was also informed that the deceased Surinder Singh had been killed by Jarnail, Shakti Singh and Bagga alias Ramesh Kumar.
6. On reaching Sanjhi Patti P.W. 4 found the deceased Surinder Singh lying dead. A sickle stained with blood, some fuel wood, one “Shawl” and a pair of chappls were found lying near the dead body. While P.W. 4 was on his way to the Police Station for making the report, he happened to meet P.W. 9 Inspector Raghuvir Singh, then Station House Officer of Police Station, Indora. P.W. 4 made a statement Ex.P.W. 4/A under Section 154, Code of Criminal Procedure, before P.W. 9 on the basis of which a case for the offence under Sections 302/307 read with Section 34, Indian Penal Code, came to be registered vide F.I.R. No. 14/99 (Ex. PW 7/A).
7. During the course of investigation, the dead body of the deceased was got subjected to postmortem, which was conducted by P.W. 2 Dr. Varinder Gupta. The following ante mortem injuries were found on the person of the deceased :–
(i) cut injury on the central part of the neck major vessel muscles. Trachea was cut through and through. Approximately 8 cm to 10 cm long cut injury on the neck;
(ii) cut injury about 8 cm x 31/2 cm on left side of the neck. Clotted blood was present. Underlying structure was cut;
(iii) cut injury on angle on right mandible about 2″ in length and 11/2″ deep, extending 2″ on cheek about 11/2 cm deep.
8. In the opinion of P.W. 2, the deceased died of haemorrhagic shock due to multiple injuries especially injury on the neck. P.W. 2 further opined that the injuries on the person of the deceased were possible with the sickle Ex.P5.
9. P.W. 3 Naresh Kumar was also subjected to medical examination. P.W. 1 Dr. D.R. Reyal found the following injuries on his person :–
(i) An incised wound 5 x 3 x 4 cm on the right upper arm on its anterior surface just above its middle and running transversely cutting through the right side humerus. The wound was bleeding on touch. The sweater, shirt and full sleeve under shirt were having clean cuts corresponding to the injury;
(ii) An incised wound 3 x 1/2 x 1 cm on the bridge of nose cutting through the cartilage and exposing nasal cavities. The wound was bleeding on touch;
(iii) An incised wound 5 x 1 x 1/2 cm on
the right side zygomatic region, exposing the
underlying bone. The wound was bleeding
on touch;
(iv) First to second degree chemical burns on the back of right hand and wrist. Blister formation was present. Peeling of skin to the extent of 21/2% of burn was present;
(v) Second degree chemical burns on the right side of the face and ear involving about 2% of the body surface area;
(vi) About 2% chemical burns ranging from first to second degree on the back of left hand with vosical formation and peeling of skin;
(vii) Multiple small chemical burns on right thigh, right lower leg and left lower leg. Shirt and pant of the injured contained burn marks at various places.
10. Since there was fracture of the right humerus (shaft), injury No. (i) above was opined to be grievous in nature. Other injuries were simple in nature. P.W. 1 also opined that injuries (i) to (iii) were caused by a sharp edged weapon while the remaining injuries (iv) to (vii) were caused by a chemical. According to P.W. 1 all the injuries taken collectively were sufficient in the ordinary course to cause death.
11. After the completion of the investigation, the three accused and Jarnail abovenamed were sent up for trial for the offence under Sections 307 and 302 read with Section 34, Indian Penal Code. Since Jarnail abovenamed was absconding, the trial proceeded only against the present three accused.
12. On having been charged, the three accused pleaded not guilty and claimed trial. The prosecution, in support of its case, examined nine witnesses in all. The defence of the accused is that of denial and false implication. Accused Ramesh Chand in his statement under Section 313, Code of Criminal Procedure, denied that he is also known by the name Totu. Similarly, accused Shakti Singh denied that he is also known by the name Sattu. Accused Rakesh Kumar too denied that he is also known by the name Bagga. No defence was led by the accused.
13. The learned Sessions Judge upon consideration of the evidence led before him convicted and sentenced each of the three accused as aforesaid.
14. We have heard S/Shri Ashutosh Burathoki and Anup Chitkara, Advocates, the learned counsel for the accused and Shri K.D. Batish, the learned Additional Advocate General for the State and have also gone through the record of the case.
15. Each of the three accused has been convicted for the offences under Sections 302 and 307 read with Section 34, Indian Penal Code. According to the prosecution case the three accused and the absconder Jarnail in furtherance of their common intention committed the murder of the deceased Surender Singh. The fatal blows to the deceased are alleged to have been inflicted by the absconder Jarnail. Further case of the prosecution is that in order to eliminate P.W. 3 Naresh Kumar, the sole witness to the murder of the deceased, injuries were inflicted on his person in an attempt to kill him by accused Ramesh Chand alias Totu in furtherance of the common intention of the three accused and the absconder Jarnail.
16. Admittedly though P.W. 3 Naresh Kumar was present along with the deceased at Sanjhi Patti, has not seen the actual fatal assault on the deceased. According to the prosecution story as disclosed by P.W. 3, this witness for a short while had left the deceased in the company of the three accused and the absconder Jarnail in order to gather his flock of cattle which while grazing had gone to different sides and when he returned he found the deceased lying dead in a pool of blood. The absconder was standing near the dead body holding a blood stained sickle in his hand while the three accused were standing by the side of the absconder Jarnail. P.W. 3 has deposed :–
“……….. Deceased Surinder Singh was my brother in relationship. Both of us resided in the same village. On 17-1-1999, after having witnessed serial Krishna in the TV, both of us went to Sanji Patti to graze cattle and goats. We reached there around 12 in the noon. While we were grazing the animals, Shakti, Totu, and Bagga came there. Shakti is also called Sattu. Bagga is also called as Rakesh. Totu is also called Ramesh. All of them are residents of village Pubail. I knew them prior to that day also. All three of them are present in the Court today. They had brought their cattle there.
They had sickle with them. Despite our objection, they put their animals in our grass. Then Jarnail of village Kassial came there. He was known to me. He had a drat with him. He was wearing a red jacket. I and Surinder, then lit fire to save ourselves from the cold. They also came there and started cutting jokies and saying that they would sacrifice a goat to Mata. Mehar Chand then came there to take away his animals after baking in the fire for a little while he went back. He is a resident of Savdayal. Then I went to gather my goat which had spread in the adjoining area. It took me some time in doing so. All the three accused, Jarnail and Surinder kept on sitting around the fire. I do not know the exactness of the time when I have gone to gather my goat. On my return I found Surinder lying in pool of blood whereas Jarnail was standing with the drat stained with blood and three accused were also standing nearby.”
17. The learned Additional Sessions Judge while convicting the three accused of the offence under Section 302 read with Section 34, Indian Penal Code, has relied upon two circumstances, namely the deceased was last seen alive in the company of the three accused and the absconder Jarnail at Sanjhi Patti where the deceased was found dead and that the three accused and the absconder had a motive to kill the deceased since the deceased had twice raped the sister of the absconder Jarnail and the deceased though was tried for such offence, was acquitted by the Court.
18. The third circumstance appearing against the three accused is that they in furtherance of their common intention attempted to murder P.W. 3 Naresh Kumar since he was the sole witness of the crime in order to eliminate him. Since this circumstance is bearing a great bearing on the murder of the deceased, we propose to take up the offence of Section 307 read with Section 34, Indian Penal Code, first.
19. As stated above, the assault on P.W.3 Naresh Kumar, as per prosecution case, was committed by accused Ramesh Chand in furtherance of the common intention of the three accused and absconder Jarnail. The case of the prosecution is based on the sole testimony of P.W. 3 Naresh Kumar (the injured) coupled with medical evidence, consisting of the statement of P.W. 1 Dr. D.R. Reyal and the medico legal certificate Ex. P.W. 1/A. P.W. 3 has deposed :–
Then I went to gather my goat which had spread in the adjoining area. It took me some time in doing so, All the three accused, Jarnail and Surinder kept on sitting around the fire. I do not know the exactness of the time when I have gone to gather my goat. On my return I found Surinder lying in pool of blood whereas Jarnail was standing with the drat stained with blood and three accused were also standing near by. Accused Totu then lifted a sickle from the ground and hit the same on the lower part of my right leg. I do not know whether it was hit with blunt or the sharp side of the sickle as on getting this blow I fell on the ground. Totu then hit another blow on my right upper arm. Another blow with sickle was given on my nose and then I held my face in my hands. Totu then thew some liquid on me which caused burning sensation on my arms face etc. I do not know where the accused persons had gone then. I had cried when I had received the injuries.”
20. Though P.W. 3 was subjected to lengthy cross-examination, his testimony could not be shattered. In fact save and except suggesting to him that the three accused were not present at the spot and that accused Ramesh is not known as Totu, P.W.3 has not been specifically cross examined in respect of the version given by him about his having been assaulted by accused Ramesh.
21. The presence of the three accused and absconder Jarnail with P.W. 3 and the deceased at Sanjhi Patti is also proved by P.W. 5 Mehar Chand, who had also gone to graze his cattle in his land. His cattle had gone to the land known as Sanjhi Patti while grazing. He went to bring back his cattle when he found the three accused absconder Jarnail, P.W. 3 and the deceased sitting by the side of fire. Since it was cold, he also happen to sit with them for about ten minutes by the side of fire.
22. The medical evidence fully supports the version of P.W. 3 to the extent that the injuries were caused to him by a sharp edged weapon like sickle and chemical like acid.
23. The three accused were very well known to P.W. 3 and P.W. 5. Nothing has come on the record that the accused were not known either to P.W. 3 or P.W. 5 and that they were strangers to them. Therefore, there is no question of mistaken identity. P.W. 3 being an injured is the best witness. His testimony is trustworthy and inspires confidence. Such sole trustworthy and confidence inspiring testimony of the injured coupled with medical evidence can be made the basis for the conviction of the accused.
24. In Ramesh alias Raj Kumar v. State, 1989 (1) Crimes 261, the conviction of the accused therein for the offence under Section 326, Indian Penal Code, was maintained on the sole testimony of the injured.
25. Similarly in Balbir Singh v. State of Punjab. 1992 (3) Crimes 1005, the conviction and sentence of the accused therein for the offences under Sections 325, 326, 323 and 324 read with Section 34, Indian Penal Code, was maintained on the sole testimonies of the two injured coupled with the medical evidence.
26. In Purastam Tripathi and Purusattam Puria v. State of Orissa, 1995 Cri LJ 4211 the accused therein was convicted and sentenced for the offence under Section 307, Indian Penal Code, on the sole testimony of the injured coupled with the medical evidence.
27. It was contended by the learned counsel for the accused Rakesh Kumar and Shakti Singh that even if it be assumed that it was accused Ramesh Chand who had assaulted P.W. 3 and caused grievous injuries to him in order to eliminate him , there is no evidence to show that the accused Rakesh Kumar and Shakti Singh shared a common intention with the accused Ramesh Chand and the absconder Jarnail Singh.
28. There is no force in the contention of the learned counsel. It is by now well settled that for the application of Section 34, Indian Penal Code, a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop at the spur of the moment on the spot between a number of persons on the facts and in the circumstances of the case. Whether in a proved situation all the individuals concerned therein developed only simultaneous and independent intentions or whether a simultaneous consensus of their mind to bring about a particular result can be said to have developed and thereby intended by all of them is a question that has to be determined on the facts of each case. (See : Kripal v. State of Uttar Pradesh, AIR 1954 SC 706 : (1954 Cri LJ 1757); Afrahim Sheikh v. State of West Bengal, AIR 1964 SC 1263 : (1964 (2) Cri LJ 350) and Anda v. State of Rajasthan, AIR 1966 SC 148 : (1966 Cri LJ 171).
29. The Hon’ble Supreme Court in Rajesh Govind Jagesha v. State of Maharashtra, 2000 Cri LJ 380 : (AIR 2000 SC 160) has held :–
“No pre mediation or previous meeting of mind is necessary for the applicability of Section 34 of the I.P.C. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purposes of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence .”
30. The conduct of the accused Rakesh Kumar and Shakti Singh, whose presence at the place of occurrence stands proved beyond doubt, at the time when P.W. 3 was being assaulted by accused Ramesh Chand gives sufficient indication that they shared a common intention with the accused Ramesh Chand to eliminate P.W. 3, the only witness to the murder of the deceased. The accused Rakesh Kumar and Shakti Singh on seeing accused Ramesh Chand attacking P.W. 3 with a sickle and then throwing acid at him neither tried to intervene and save P.W. 3 nor after the occurrence they even made an attempt to inform the police or any other person about what had happened at Sanjhi Patti. The silence on their part and failure to intervene goes to show that they shared the common intention with the accused Ramesh Chand and the absconder to commit the murder of the deceased and also in the attempt to commit the murder of P.W. 3.
31. It is in evidence that the absconder Jarnail had a motive to murder the deceased since the deceased had raped his sister Usha (P.W. 6) twice. It is in the statement of P.W. 6 that she was raped by the deceased and that the deceased was prosecuted for such of
fence but was acquitted. Thereafter the de
ceased in the year 1999 after his acquittal
had again raped her twice in a Nallah when
she was going to the house of her friend in
village Jangroli.
32. This version of P.W. 6 has remained unassailed. The learned trial Court, therefore, had rightly relied upon the circumstance of motive. The evidence coming on record do indicate that the fatal blows to the deceased were inflicted by the absconder Jarnail Singh in the presence of the three accused, whose presence at the spot, as stated above, stands proved beyond doubt. Nothing has come on the record to show that any attempt was made by any of the three accused to save the deceased. Rather they in furtherance of their common intention, as held above, made an attempt to eliminate P.W. 3, the only witness to the crime.
33. The contention raised on behalf of the accused that there is no evidence that the three accused were friends or close to absconder Jarnail or that whether they came to Sanjhi Patti together or separately is of no consequence in view of the evidence coming on the record that the three accused and absconder Jarnail were with the deceased and P.W. 3 at Sanjhi Patti and were last seen there by P.W. 3 and P.W. 5 sitting together by the side of fire.
34. There is no significant contradiction or improvement in the evidence of the prosecution witnesses which may render the story of prosecution doubtful.
35. Considering the evidence on the record in totally, we hold that the prosecution case set up against the three accused stands proved to the hilt. Finding of guilt returned against them by the learned trial Court is, therefore, affirmed. The sentence imposed, which are proportionate to their guilt are also affirmed.
36. Resultantly, all the three appeals fail and they are accordingly dismissed.