THE STATE OF RAJASTHAN versus GURBACHAN SINGH & OTHERS on 7 December 2022

THE STATE OF RAJASTHAN

v.

GURBACHAN SINGH & OTHERS

(Criminal Appeal No. 2201 of 2011)

DECEMBER 07, 2022

[SANJIV KHANNA AND SUDHANSHU DHULIA, JJ.]

Penal Code, 1860 – Murder – Common intention – Disputew.r.t partition of land– Victim was beaten resulting in his death,PW1 (his brother) also suffered injuries – Respondent convictedalong with 5 others – Respondent’s appeal partly allowed by HighCourt, holding that he did not share common intention to causedeath of deceased as he only inflicted wounds on his feet with a‘lathi’, was directed to be released having suffered the maximumpunishment provided for the offence – Conviction of other 3 co-convicts (‘DS’, ‘BS’, ‘MS’), not challenged herein – Two others(‘MK’, ‘JK’) were acquitted, acquittal w.r.t ‘MK’ has become final –Held: Challenge to the acquittal of ‘JK’ dismissed – In case ofrespondent, common intention to inflict injuries and cause the deathof deceased can be gathered from his action – PW-1 and his wife-PW-2 saw the deceased coming from a flour mill which was nearthe Gurudwara when they were going to the Gurudwara in the village– Respondent and the co-convicts accosted the deceased –Respondent had come with ‘lathi’, while others were seen with anaxe, toka and gandasi – They surrounded the deceased – Respondentthen struck the feet of the deceased with ‘lathi’, who fell-down –Thereupon, respondent and the co-convicts had beaten and inflictedinjuries and wounds to deceased – Respondent shared commonintention to cause injuries with other co-convicts – Crime wascommitted in furtherance of common intention leading to the deathof deceased – Therefore, all of them, including respondent, wouldbe responsible for offence u/s.302, irrespective of the part playedby them – Impugned judgment acquitting respondent u/s.302 setaside – Convicted u/s.302 r/w s.34 – Conviction u/s.324 for injuriesinflicted on PW-1, maintained – Conviction u/s.149 r/w s.148 notsustainable – Respondent to surrender – Code of CriminalProcedure, 1973 – s.428.

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APenal Code, 1860 – s.34 – Application of – Discussed.

Penal Code, 1860– s.34 – Common intention – Evidence–Held: Common intention can be formed at the spur of the momentand during the occurrence itself – It is a psychological fact and assuch, direct evidence normally will not be available – In most cases,Bwhether or not there exists a common intention, has to be determinedby drawing inference from the facts proved – Constructive intentioncan be arrived at only when the court can hold that the accusedmust have preconceived the result that ensued in furtherance of thecommon intention.

CAllowing the appeal, the Court

Conclusion

CAllowing the appeal, the Court

HELD: Challenge to the acquittal of ‘JK’ is dismissed.Respondent was present at the place of the occurrence with ‘BS’,‘MS’, and ‘DS’ when the violence took place, which resulted indeath of deceased. PW-1, the brother of Teja Singh, along withDhis wife-PW-2, who were going to the Gurudwara in the village,had seen deceased coming from the flour mill, which was nearthe Gurudwara. Respondent, ‘DS’, ‘BS’, ‘MS’ had then accosteddeceased. PW-1 and PW-2 deposed that deceased had come witha ‘lathi’, whereas ‘DS’ were seen with an axe, ‘BS’ with a ‘toka’and ‘MS’ with a ‘gandasi’. They had surrounded deceased.ERespondent had then struck the feet of deceased with ‘lathi’,who then fell-down. Thereupon, respondent and the co-convictshad beaten and inflicted injuries and wounds to deceased. ‘BS’ inparticular had used a ‘toka’, a sharp-edged weapon, to inflictincised wounds on the head of deceased. The motive and causeFwas the land dispute between the brothers, and the occurrenceat 5 P.M on 06.11.2000, when deceased had objected torespondent and ‘BS’ ploughing the plot of the water worksdepartment, and the village meeting where tempers got flaredwith respondent and ‘BS’ leaving the meeting in anger. Section34 of the IPC i.e., common intention, is attracted in the case ofGrespondent, whose case cannot be distinguished, so as to excludehim as one who did not share common intention with ‘DS’, ‘BS’,and ‘MS’. Section 34 of the IPC makes a co-perpetrator, whohad participated in the offence, equally liable on the principle ofjoint liability. For Section 34 of the IPC to apply, there should beHcommon intention among the co-perpetrators, which means that

there should be community of purpose and common design.Common intention can be formed at the spur of the moment andduring the occurrence itself. Common intention is necessarily apsychological fact and as such, direct evidence normally will notbe available. Therefore, in most cases, whether or not thereexists a common intention, has to be determined by drawinginference from the facts proved. Constructive intention can bearrived at only when the court can hold that the accused musthave preconceived the result that ensued in furtherance of thecommon intention. Common intention to inflict injuries and causethe death of dececased, can be gathered from the conduct andaction of respondent. First, the impugned judgment read withthe depositions of PW-1 and PW-2, that respondent had comeprepared with ‘lathi’ along with others who had carried ‘toka’,axe and ‘gandasi’. This is corroborated by the fact that blood-smeared ‘lathi’ was recovered from the possession of respondent.The evidence establishes the participation of respondent, incommission of the offence with co-participants/co-convicts.Secondly, respondent was the first one to attack and inflict injuryon deceased, by hitting him on the feet with a ‘lathi’, who hadthen fallen down. Lastly, respondent along with co-convicts, hadinflicted 8 incised wounds on head and other injuries on vital andother parts on the person of deceased, as recorded in the post-mortem report (Ex.P.14). The statement of eye witnesses clearlyreveal that respondent did not give just one ‘lathi’ blow, but hecontinued to give ‘lathi’ blows to the deceased, even when hefell down. This he did along with the other co-convicts, ‘BS’, ‘MS’and ‘DS’, who had inflicted injuries with ‘toka’, axe and ‘gandasi’.Respondent had shared the common intention to cause injurieswith other co-convicts, and the crime was committed infurtherance of the common intention, which led to the death ofdeceased. Therefore, all of them, including respondent, wouldbe responsible for the criminal act i.e., the offence under Section302 of the IPC, irrespective of the part played by them. Theimpugned judgment passed by the High Court acquittingrespondent under Section 302 of the IPC is set aside, and he isconvicted for murder of deceased under Section 302 read withSection 34 IPC. Respondent’s conviction under Section 324 ofthe IPC for the injuries inflicted on PW-1 is also maintained. The ABC

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Aorder of sentence passed by the trial court imposing punishmentof life imprisonment on respondent, for the offence under Section302 of the IPC is restored albeit read with Section 34 of the IPC,along with a fine of Rs. 1,000/-. In case of non-payment, he wouldundergo sentence of simple imprisonment for two months. Benefitof Section 428 of the CrPC, 1973 will be given. However, theBconviction under Section 149 read with Section 148 of the IPCcannot be sustained as the requirement of unlawful assembly toattract these provisions of the IPC, is not satisfied. Respondentwill surrender. [Paras 1, 9, 11-14][76-G; 79-D-G; 80-B-H; 81-A-F]CCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2201 of 2011.

From the Judgment and Order dated 04.04.2008 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 880of 2001.DDr. Manish Singhvi, Sr. Adv., Arpit Prakash, Vikalp Sharma, MilindKumar, Advs. for the Appellant.

Shailesh Madiyal, Ms. Asha Upadhyay, Anantha Narayana M.G., Vinayaka Pandit, Tarun Gulia, Sushant Bajaj, Siddharth Relan, M. L.EGopalakrishna, Venkata Krishna Kunduru, Rajan Parmar, Advs. for theRespondents.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

By the order dated 01.05.2009, notice in the special leave petitionFwas confined to the first respondent - Gurbachan Singh. The specialleave petition against other respondents was dismissed. Our attention isdrawn to the order dated 17.12.2008, whereby Criminal MiscellaneousPetition No. 19754/2008 preferred against the acquittal of Manjeet Kaur,stands dismissed. The case and evidence relied by the prosecution againstGManjeet Kaur and Jangir Kaur is identical. We are of the opinion andreiterate that the prosecution has not been able to establish its caseagainst Jangir Kaur. Challenge to the acquittal of Jangir Kaur isdismissed.

2. The prosecution’s case as per the charge sheet is that TejaHSingh along with his brother Harbhajan Singh (PW-1) on one side, and Gurbachan Singh along with the co-convicts and brothers Darshan Singh,Balvir Singh, and Manjeet Singh, on the other side were embroiled in adispute regarding partition of land. On 06.11.2000 at about 5 P.M.,Gurbachan Singh and Balvir Singh were ploughing the plot whichbelonged to water works department. Teja Singh had objected to this,post which, a village meeting was held, in which both Gurbachan Singhand Balvir Singh had left for their home in anger. At about 7:30 P.M. onthe same day, Harbhajan Singh (PW-1), and Jasveer Kaur (PW-2) weregoing to the Gurudwara in the village. At that time, Teja Singh was seencoming from the flour mill of Sohan Lal, which was near the Gurudwara.Thereupon, Gurbachan Singh and Balvir Singh, Manjeet Singh, andDarshan Singh, who hand come armed with ‘lathi’, ‘toka’, axe, and‘gandasi’ respectively, had beaten and inflicted injuries on Teja Singh,which resulted in his death on the spot. Harbhajan Singh (PW-1) hadalso suffered injuries in the incident.

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3. First Information Report[1] was filed on the same day, mentionsthe names of Gurbachan Singh, Darshan Singh, Balvir Singh and ManjitSingh, and also the names of Jangir Kaur and Manjeet Kaur, who werestatedly present at the place of occurrence. However, as per the FIR,no specific acts, verbal or physical in nature, were attributed to JangirKaur and Manjeet Kaur.

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4. The trial court, vide judgment dated 07.11.2001 had tried andconvicted Gurbachan Singh along with others namely, Balvir Singh,Manjeet Singh, Darshan Singh, and Jangir Kaur under the followingprovisions of the Indian Penal Code, 1860[2]:

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(a) Section 302 read with Section 149 of the IPC- Lifeimprisonment and fine of Rs. l000/- each, with defaultFstipulation of 2 months simple imprisonment; (b) Section 324 read with Section 149 of the IPC- One and halfyears’ rigorous imprisonment and fine of Rs.500/- each, withdefault stipulation of one-month simple imprisonment;

(c) Section 323 read with Section 149 of the IPC- 3 monthsGrigorous imprisonment and fine of Rs. l00, with defaultstipulation of 7 days simple imprisonment; and 1 For short, “FIR”

2 For short, “IPC”.

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A(d) Section 148 of the IPC - one year rigorous imprisonment andfine of Rs.100/- each, with default stipulation of 7 days simpleimprisonment.

Manjeet Kaur was tried separately in the year 2004, as she hadabsconded. She was convicted by the trial court, which conviction wasBset aside by the High Court. The judgment of acquittal in her case hasbecome final.

5. On appeal preferred by Gurbachan Singh, Balvir Singh, ManjeetSingh, Darshan Singh, and Jangir Kaur, the Division Bench of High Courtof Judicature for Rajasthan at Jodhpur, vide judgment dated 04.04.2008,Callowed the appeal filed by Jangir Kaur and has acquitted her. The appealof Gurbachan Singh was partly allowed as his conviction under Section302 read with 149, Section 147, Section 148, Section 324 read with 149,and Section 323 read with 149 of the IPC was set aside, and he hasbeen convicted under Section 323 of the IPC for the injuries caused toTeja Singh, and was directed to be released, as he had suffered theDmaximum punishment provided for the offence. Conviction of BalvirSingh, Manjeet Singh and Darshan Singh under Sections 149 and 148 ofthe IPC was set aside, albeit, their conviction under Section 302 wasmaintained with the aid of Section 34 of the IPC. Their conviction andsentence under Section 324 read with Section 34 of the IPC for injuriesEcaused to Harbhajan Singh (PW-1) was maintained.

6. It appears that Balvir Singh, Manjeet Singh, and Darshan Singhhave not challenged their conviction and sentence imposed, which hasattained finality.

7. As such, the question before us, in this appeal by the State ofFRajasthan is whether the High Court was justified in setting aside theconviction and sentence awarded to Gurbachan Singh under Section302 read with other provisions of the IPC, by convicting him only underSection 323 of the IPC, in view of the finding that he did not sharecommon intention with Balvir Singh, Manjeet Singh, and Darshan SinghGto cause the death of Teja Singh, as he only inflicted wounds on his feetwith a ‘lathi’.

8. Pertinently, the High Court while partly accepting the appealpreferred by Gurbachan Singh, has held as under:

“Now the question remains about accused Gurbachan who asHper ocular testimony was armed with ‘lathi’ and the same was recovered also. After he gave an information through Ex. P/41and the same was covered through Ex.P/23 and the same wasalso smeared with human blood. Harbhajan Singh himself is injuredwhose injury report Ex. P/15 was prepared by Dr. Mohan LalGupta. As per injury report he has received as many as eightinjuries on his person, out of which one is from sharp edged weaponand as per statement of Harbhajan Singh said injury was inflictedby accused Balvir Singh with ‘toka’, when he reached on the spotto save his brother. Gurbachan Singh gave ‘lathi’ blows on hisperson. From the testimony of ocular witnesses it can safely beinferred that accused Gurbachan Singh was not sharing thecommon intention as he was armed only with ‘lathi’ and whateverinjuries on the person of the deceased which were given on vitalpart of the body of the deceased.”

9. The aforesaid reasoning, accepts and in our opinion rightly thatGurbachan Singh was present at the place of the occurrence with BalvirSingh, Manjeet Singh, and Darshan Singh when the violence took place,which resulted in death of Teja Singh on 06.11.2000 at about 7:30 P.M.Harbhajan Singh (PW-1), the brother of Teja Singh, along with his wife,Jasveer Kaur (PW-2), who were going to the Gurudwara in the village,had seen Teja Singh coming from the flour mill of Sohan Lal, which wasnear the Gurudwara. Gurbachan Singh, Darshan Singh, Balvir Singh,and Manjit Singh had then accosted Teja Singh. Harbhajan Singh (PW-1) and his wife Jasveer Kaur (PW-2) have deposed that GurbachanSingh had come with a ‘lathi’, whereas Darshan Singh were seen withan axe, Balvir Singh with a ‘toka’ and Manjeet Singh with a ‘gandasi’.They had surrounded Teja Singh. Gurbachan Singh had then struck thefeet of Teja Singh with ‘lathi’, who then fell-down. Thereupon, GurbachanSingh and the co-convicts had beaten and inflicted injuries and woundsto Teja Singh. Balvir Singh in particular had used a ‘toka’, a sharp-edgedweapon, to inflict incised wounds on the head of Teja Singh. The motiveand cause was the land dispute between the brothers, and the occurrenceat 5 P.M on 06.11.2000, when Teja Singh had objected to GurbachanSingh and Balvir Singh ploughing the plot of the water works department,and the village meeting where tempers got flared with Gurbachan Singhand Balvir Singh leaving the meeting in anger. It is pertinent thatHarbhajan Singh (PW-1) was also injured during the violence.

10. The post-mortem report marked as exhibit P-14 proved byDr. Mohan Lal Gupta, (PW-9) had referred to 8 bone-deep injuries of AB

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Adifferent sizes on the head of Teja Singh. He had also deposed thatthese injuries could have been caused by sharp- edged weapons such asaxe, ‘toka’, ‘gandasi’, ‘lathi’, and, etc., which were sufficient to causedeath in ordinary course.

11. Given the aforesaid position, we are of the view that SectionB34 of the IPC i.e., common intention, is clearly attracted in the case ofGurbachan Singh, whose case cannot be distinguished, so as to excludehim as one who did not share common intention with Darshan Singh,Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally liable on theprinciple of joint liability. For Section 34 of the IPC to apply, there shouldCbe common intention among the co-perpetrators, which means that thereshould be community of purpose and common design. Common intentioncan be formed at the spur of the moment and during the occurrenceitself. Common intention is necessarily a psychological fact and as such,direct evidence normally will not be available. Therefore, in most cases,Dwhether or not there exists a common intention, has to be determined bydrawing inference from the facts proved. Constructive intention, can bearrived at only when the court can hold that the accused must havepreconceived the result that ensued in furtherance of the commonintention.

E12. The impugned judgment observes that common intention cannotbe inferred from the conduct of Gurbachan Singh, as he was only armedwith ‘lathi’ and had struck only on the feet of Teja Singh. However, weare of the opinion that common intention to inflict injuries and cause thedeath of Teja Singh, can be gathered from the conduct and action ofGurbachan Singh. First, it is deductible from the quoted paragraph of theFimpugned judgment read with the depositions of Harbhajan Singh(PW-1) and Jasveer Kaur (PW-2), that Gurbachan Singh had comeprepared with ‘lathi’ along with others who had carried ‘toka’, axe and‘gandasi’. This is corroborated by the fact that blood-smeared ‘lathi’was recovered from the possession of Gurbachan Singh. The evidenceGestablishes the participation of Gurbachan Singh, in commission of theoffence with co-participants/co-convicts. Secondly, Gurbachan Singh,was the first one to attack and inflict injury on Teja Singh, by hitting himon the feet with a ‘lathi’, who had then fallen down. Lastly, GurbachanSingh along with co-convicts, had inflicted 8 incised wounds on headand other injuries on vital and other parts on the person of Teja Singh, asH

recorded in the post-mortem report (Ex.P.14). The statement of eyewitnesses clearly reveal that Gurbachan Singh did not give just one ‘lathi’blow, as it is being said by the defence, but he continued to give ‘lathi’blows to the deceased, even when he fell down. This he did along withthe other co-convicts, Balvir Singh, Manjeet Singh and Darshan Singh,who had inflicted injuries with ‘toka’, axe and ‘gandasi’. These factsestablish that Gurbachan Singh had shared the common intention to causeinjuries with other co-convicts, and the crime was committed infurtherance of the common intention, which led to the death of TejaSingh. Therefore, all of them, including Gurbachan Singh, would beresponsible for the criminal act i.e., the offence under Section 302 of theIPC, irrespective of the part played by them.

13. Recording the aforesaid, we set aside the impugned judgmentpassed by the High Court acquitting Gurbachan Singh under Section 302of the IPC, and he is convicted for murder of Teja Singh under Section302 read with Section 34 IPC. Gurbachan Singh’s conviction under Section324 of the IPC for the injuries inflicted on Harbhajan Singh (PW-1) isalso maintained. We restore the order of sentence passed by the trialcourt imposing punishment of life imprisonment on Gurbachan Singh, forthe offence under Section 302 of the IPC albeit read with Section 34 ofthe IPC, along with a fine of Rs. 1,000/-, with the stipulation that in caseof non-payment, he would undergo sentence of simple imprisonment fora period of two months. Benefit of Section 428 of the Code of CriminalProcedure, 1973 will be given. We, however, accept the view taken bythe High Court that the conviction under Section 149 read with Section148 of the IPC cannot be sustained as the requirement of unlawfulassembly to attract these provisions of the IPC, is not satisfied.

14. Gurbachan Singh will surrender within 21 days to undergo theremaining sentence. In case, Gurbachan Singh does not surrender withinthe said period, the authorities/court will take action in accordance withlaw to detain Gurbachan Singh, so as to undergo remaining sentence.

15. The appeal is allowed in the aforesaid terms.

16. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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