CRLA/241/2003 of JAGIR SINGH and ANR. Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 241/2003

Jagir Singh & Another … Appellants

Versus

State of Uttarakhand … Respondent

Mr. Pankaj Purohit, Advocate, for the appellants. M[r. P.S. Bohara, Brief Holder, for the State/respondent. ]

15thMay, 2012

Hon’ble Sudhanshu Dhulia, J.Hon’ble Servesh Kumar Gupta, J.

(Per : Sudhanshu Dhulia, J. (Oral)

This criminal appeal has been preferred by Jagir Singh and Suba Singh against the judgment and order dated 7/8.8.2003, passed by the learned Sessions Judge, Udham Singh Nagar in Sessions Trial No. 441/2000, State v. Jagir Singh & Another, whereby the appellants have been held guilty for the offences punishable under Section 452 and 302 read with Section 34 IPC. For the offence of Section 452 IPC, each of the appellants have been directed to undergo imprisonment for three years and fine of rupees five thousand. Each of the appellants have been directed to undergo imprisonment for life and fine of rupees five thousand for the offence under Section 302 read with Section 34 IPC. In default of payment of fine, appellants have been directed to undergo additional six months’ rigorous imprisonment. The sentences have been directed to run concurrently. However, both the appellants have been acquitted for the offence under Section 506(II) IPC by giving them the benefit of doubt.

2. Brief facts of the case are that an FIR was lodged on 26.9.2000 at Police Station Nanakmatta by one Santokh Singh (PW1) at 2.30 am. According to the

FIR, the sister of the complainant, namely, Smt. Maya Kaur, who was the widow of late Suber Singh, used to reside at village Tapera along with her two small sons and one small daughter. Apart from these four persons, her niece Km. Bhajan Kaur was also residing with the family for the last 15 days. About month back, his neighbour Jagir Singh and Suba Singh, both sons of Swarn Singh, were caught by the police selling illicit country made liquor and they were sent to jail. Jagir Singh had doubt that behind their arrest was the hand of complainant’s sister Smt. Maya Kaur (deceased) and, therefore, on 26.9.2000 in the night when his sister along the children and niece Km. Bhajan Kaur were sleeping on the “charpais” (cot), in the verandah of their house, where an electric bulb was also lit, at about 1 am in the night (in the intervening night of 25/26.9.2000), four persons armed with “kapas” (a sharp edged weapon) entered the house and slit the neck of his sister and killed her. When his niece raised an alarm, she was threatened. His niece saw the assailants in the light of electric bulb. She also recognized Jagir Singh and Suba Singh. His niece does not know the name of other two assailants but she can recognize them if they are brought in front of her. After the incident, she (the niece) rushed to his house and informed him. He (complainant) immediately rushed to the scene of crime. Complainant further states in his report that the dead body of his sister was lying in the room. Plenty of blood was spread on the floor. At the scene of crime, there is also was “chappal”, which the assailants had left. He further stated that after leaving the spot under the care of his brother Chhindar Singh and some neighbours, he came to the police station to lodge the report

3. Immediately after lodging the report, police started its investigation. Inquest report was prepared on the same day at 3.05 am, which is Ex. Ka-5. Present appellants were subsequently arrested. After investigation, the police submitted chargesheet against them. Charges were framed against them for the offences under Section 452, 506(II) and Section 302 read with Section 34 IPC. On 16.12.2000, the matter was committed for trial by the Sessions. Appellants were put to trial, which resulted in their conviction.

4. The prosecution, in order to prove its case, examined as many as five witnesses. PW1 Santokh Singh is the complainant, PW2 is Km. Bhajan Kaur, an eyewitness of the incident, PW3 is Km. Paramjeet Kaur, also an eyewitness of the incident, PW4 is Dr. Anil Chandra Sah, who conducted the post-mortem of the deceased and PW5 S.I. D.P. Singh, who conducted the investigation and filed the chargesheet.

5. PW1 Santokh Singh has made similar statement as were made by him in the FIR. In his examination-in-chief, he has stated that his sister Smt. Maya Kaur used to stay at Tapera. Along with her sister were also staying his niece Bhajan Kaur (daughter of his another sister), whose age was about 15-16 years. She was staying with his sister for the last one week prior to the incident. His sister used to work and raise her family. On the date of fateful incident, at about 1 am in the night, when she was sleeping in the verandah, four assailants including Jagir Singh and Suba Singh killed her sister with “kapas” (a sharp edged weapon), which they were

carrying. This information was given to him by his niece and based on that information, he lodged an FIR with the police. This witness was put to cross-examination on the same day. He stated in his cross-examination that he received the information of the incident at about 1 to 1.15 am in the night. His house is situated half kilometer distance from the scene of crime. He walked to the scene of crime along with his niece. When he reached at the spot, Mangat Singh, Mahendra Singh, Gurmeet Singh etc. (other neighbours) had already come there. From the scene of crime, he directly came to the police station and lodged the report.

6. PW2 Km. Bhajan Kaur was examined on 25.9.2002. At the time of her examination, she stated her age to be 15 years. Therefore, at the time of incident, she was about13 years of age. She stated that two years back, she was staying with her aunt (“Mausi”) at Tapera, Nanakmatt. On the date of incident, she was sleeping on charpai. Her “Mausi”was sleeping next to her on another charpai. Along with her was sleeping Paramjeet Kaur, daughter of her “Mausi”, who at that time was about 10 years old. At about 1 am in the night, four persons entered the verandah and asked his “Mausi” Maya Kaur to give change of fifty rupees. When her “Mausi” went inside the room to get the money, Jagir Singh and Suba Singh (whom this witness identified in the court) told the other two persons to kill Maya Kaur and she must not escape. She further stated that she does not know the name of other two persons, who attacked her “Mausi” with their “kapas”. Maya Kaur fell down and died. At that time, electric bulb was lit in the room and in the verandah. In the light of electric bulb, she

had seen the incident. She told this incident to her “Mama” Santokh Singh, who stays nearby. She further stated that her cousin Paramjeet Kaur had also seen the incident. This witness, who was only about 15 years of age, was put to lengthy cross-examination. In her cross-examination, the defence could not shake this witness and nothing has come out in her cross-examination, which may cast any doubt on her credibility even by remote chance, or that this witness is not trustworthy or her presence on the scene of crime is doubtful. In other words, we have star eyewitness, who had seen the incident. Her statement inspires confidence and leads to the fact that this witness is trustworthy and reliable.

7. PW3 Km. Paramjeet Kaur is daughter of deceased. She is another eyewitness and girl of only eight years of age when her examination-in-chief was recorded. Since she was child and minor, before recording her statement, she was put to certain question by the Presiding Officer. She gave candid reply to the same and thereafter it was recorded that the witness is capable of answering questions. She states that about two years back, she was sleeping in the verandah of her house. Km. Bhajan Kaur, daughter of her mother’s sister, was also sleeping with her in the verandah. Electric bulb was on in the verandah. She heard loud cry of her mother. She saw that Jagir Singh and Suba Singh were telling their two accomplish, who she did not know, to kill her mother. Thereafter these two unidentified persons killed her mother with the “kapas”, which they were carrying. Her mother died and these assailants ran away. Thereafter she and her cousin (PW2 Km. Bhajan Kaur) went to inform about this incident to her “Mama”

Santokh Singh and, subsequently, they returned to the place of incident. This witness is also put to cross-examination. In the cross-examination, she stated that she got up after hearing the cry of her mother. Along with her was sleeping the daughter of his “Mausi” (i.e. PW2 Km. Bhajan Kur) and along with hes mother, her two younger brothers were sleeping. When she heard the cry of her mother, she had got up from her bed and from verandah she reached the door of her room, Jagir Singh and Suba Singh were standing near them (i.e. the children who were present at that time in the verandah), who were threatening them. Rest of the two assailants were near her mother. Jagir Singh and Suba Singh had covered their face with cloth. She identified them in the light of electric bulb. She further states in her cross-examination that she went along with her cousin (PW2 Bhajan Singh) to her “Mama” to inform him about the incident. His other two brothers remained in the house. Her “Mama” went to lodge the report. Police came at the scene of crime in the very night at 2.30 am. She noticed the time, as there was clock in her house. (At this stage, this witness was asked to tell the time by looking at the clock lying in the courtroom. She told the correct time). She saw the assailants when they were leaving. She further states that she was giving the correct statement and rejected the question that she was asked to come here and give the statement as was told to her by her “Mama”. She also rejected the question that she had not seen the incident. She further stated that the police had enquired from her on the date of incident itself.

8. PW4 Dr. Anil Chandra Sah, who conducted the autopsy on the dead body of Smt. Maya Kaur on

26.9.2000 at 1.35 pm, has stated that on the said date he was posted at Saban Singh Jeena Base Hospital, Haldwani. He further stated that death of the deceased occurred about 12 to 18 hours prior to conducting the post-mortem. Rigor mortis was present on the upper as well as on lower part of the body. Body had not started decaying. He observed following ante mortem injuries on the body of deceased:

(1) Incised wound 17 cm x 3 cm bone deep which was on left side of the neck going towards the back of the neck. When this wound was opened, mastoid process of the head and occipital bone was found cut. Brain membrane and brain of left side were also cut. Blood had accumulated on the left part of the brain. which was on left side of the neck going towards the back of the neck. When this wound was opened, mastoid process of the head and occipital bone was found cut. Brain membrane and brain of left side were also cut. Blood had accumulated on the left part of the brain.

(2) Incised wound 10 cm x 2 cm muscle deep on the back portion of the neck. on the back portion of the neck.

(3) Incised wound 18 cm x 10 cm muscle and bone deep. This was on the left side of the face from the joint of the lip running towards left portion of the face towards the neck and also cutting the left side of the neck. After opening the wound, the lower jaw was found cut and the bone of left side of the jaw was broken. Spinal cord was also found broken. bone deep. This was on the left side of the face from the joint of the lip running towards left portion of the face towards the neck and also cutting the left side of the neck. After opening the wound, the lower jaw was found cut and the bone of left side of the jaw was broken. Spinal cord was also found broken.

(4) Incised wound 20 cm x 12 cm muscle and bone deep. This wound was diagonally running from left side of the shoulder towards the back of the neck. After opening this wound, it was found that the cervical vertebrae 5 and spinal cord were broken.

Incised wound 12 cm x 4 cm bone deep on the left shoulder and also running towards

the back. After opening this wound, the clavicle bone was found torn.

Multiple Incised wound were found on the

right shoulder and right hand which were 7 cm x 2 cm muscle deep, 3 cm x 2 cm muscle deep and 14 cm x 11 cm in size.

Two Incised wounds 6 cm x 3 cm muscle deep and 4 cm x 3 cm muscle deep on the middle and back of the head.

(8) Incised wound 3 cm x 2 cm bone deep, which was found on the right thumb and on the palm surface.

9. On internal examination, both chambers of the heart were found empty. Gall bladder and spleen of the deceased had turned pale on account of oozing out of blood. According to the Doctor, death occurred by haemmorrhage and shock due to ante mortem injuries at about 1 pm in the intervening night of 25/26.9.2000.

Statement of this witness exactly corroborate with the post mortem report Ex. Ka-2.

10. PW5 D.P. Singh has stated that on 26.9.2000, he was posted as Station House Officer at PS Nanakmatta. He had investigated this crime. He along with S.I. P.L. Arya had gone to the spot where they found the dead body of Smt. Maya Kaur. He instructed Mr. P.L. Arya to do the inquest and prepare the report. Thereafter the dead body was sent for post-mortem. He stated that he had not prepared the site plan as he was injured in his right hand and, therefore, the site plan was prepared by another Inspector P.L. Arya. This witness was cross-examined at length, but nothing material has come out, which could help the defence.

11. As we see, this is case of direct evidence where PW2 and PW3 are the eyewitnesses to the crime. PW2 Km. Bhajan Kaur is the most important eyewitness to the incident. At the time of alleged incident, she was about 13 years of age. She was minor but was of an impressionable age and could correctly recapture the incident and has stated the same in her examination-in-chief. No doubt has been raised in the cross-examination regarding the credibility of this witness nor any doubt has been raised regarding her presence on the scene of crime. According to this witness, the deceased was her aunt (“Mausi” i.e. sister of his mother). She was staying with her “Mausi” for the last 15 days. She has been named in the FIR itself as an eyewitness to the incident. In fact, she narrated the incident to her “Mama”, who subsequently lodged the FIR. She is both credible and trustworthy eyewitness. We must remember that she is child of 13 years of age. She stayed in the same village for the last 15 days. Assailants appellants are also from the same village. Therefore, she recognized them. There is also source of light which have been noted in the statements of PW2, PW3 and PW4 as well as in the site plan.

12. This witness Km. Bhajan Kaur states that there were two more assailants (apart from the appellants Jagir Singh and Suba Singh), who had actually assaulted her “Mausi”. But she fairly states that she does not know their name. But at the same time, in the FIR, it was mentioned that she could recognize them if brought in front of her. But unfortunately, these two unknown persons were never caught by the police and consequently, they never

faced any trial. On trial are only the two assailants i.e. the present appellants. In fact, it was the main ground taken by the learned Counsel for the appellants that they have been charged under Section 352, 302 IPC read with Section 34 IPC. Learned Counsel argued that none of the eyewitnesses have stated that they were the one who assaulted the deceased. It is not even case where the two unknown witnesses were charged and put to trial and subsequently acquitted. This is case where the main accused have never faced the charge. Therefore, his submission would be that no case is made out against the present appellants under Section 302 IPC read with Section 34 IPC as the case under Section 34 IPC stands demolished. It is undoubtedly true that both PW2 and PW3, who are the eyewitnesses to the incident, categorically stated that the appellants, to whom they recognized before the trial court, were not the actual assaulters. The assault was committed by the two unknown persons, who had covered up their faces and, therefore, could not be identified. But the question would be that can the accused appellants be also acquitted merely because of the fact that the two unknown assailants were never arrested or charged.

13. This is case under Section 302 read with Section 34 IPC. Section 34 IPC reads as under: “34. Acts done by several persons

in furtherance of common

intention.—When criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”

14. It is indeed true that Section 34 IPC does not define substantive offence. However, if person is charged with Section 34 IPC, it has to be proved by the prosecution that the act was done by persons in pursuance of their common intention and that there was actual meeting of minds. In this case, it has been proved beyond reasonable doubt by the two witnesses PW2 and PW3, who are eyewitnesses to the incident that four persons entered the verandah of their house by jumping the boundary wall. Two out of four have been recognized. There were other two unknown persons. The two unknown persons actually assaulted and killed the deceased. As the actual shouting and instructions were given by the two accused appellants, this is clear case of common intention where crime has been committed with common intention of all. The prior meeting of minds, before committing the alleged offence, also stands proved due to the sequence of events narrated by both PW2 and PW3.

15. This is case of eyewitness and not of circumstantial evidence. The Constitution Bench of Hon’ble Apex Court, in similar case of Mohan Singh & Another v. State of Punjab, reported in AIR 1963 SC 174, has observed as under:

“That inevitably takes us to the question as to whether the appellants can be convicted under S. 302/34. Like S. 149,

Section 34 also deals with cases of constructive criminal liability. It provides that where criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if

it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by S. 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of combination of persons sharing the same common intention is one of the features of S. 34. In some ways, the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of S. 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existences of pre-arranged plan and that must mean prior meeting of minds. It would be noticed that cases to which S. 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now sell settled that the common intention required by S. 34 is different from the same

intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. Emperor, 72 Ind App 148 : (AIR 1945 PC 118), common intention within the meaning of S. 34 implies pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and that the inference of common intention should never be reached unless it is necessary inference deductible from the circumstances of the case.”

16. Moreover, merely because two accused persons were never caught and charged, the present accused appellants cannot be acquitted in the present case. Reliance is placed on the judgment of the Hon’ble Apex Court rendered in case of Sukh Ram v. State of U.P., reported in AIR 1974 SC 323. It was also eyewitness case having almost similar facts and circumstances, where three persons were tried for the murder of one. The trial court had acquitted one and convicted and sentenced the remaining two to imprisonment for life. On appeal, the High Court acquitted another convict, but affirmed the conviction of one Sukh Ram. As is apparent here, three individuals were charged for the murder, but the evidence was led to show that the appellant Sukh Ram along with two unknown persons had committed the crime and it was fully established that the appellant was amongst the three assailants of the deceased. The Hon’ble Apex Court held that acquittal of two out of three named accused does not bar the conviction of third under Section 302 read with

Section 34 IPC if he is shown to have committed the offence with two unknown companions and no prejudice could be said to have been caused to him by the reason of his conviction under Section 302 read with Section 34 IPC. The parameters laid down in this verdict will also apply to the present case.

17. Another argument put forth on behalf of the appellants is that specific questions relating to involvement of accused in the crime were not put the accused under Section 313 CrPC. It was nowhere the case of prosecution that it was the appellants who committed the crime i.e. actually made the assault and it was unknown persons who committed and therefore, wrong questions were asked under Section 313 CrPC. In support of argument, reliance was placed on the case of Shaikh Maqsood v. State of Maharashtra, reported in (2009) 6 SCC 583, wherein the accused was acquitted purely on this ground that wrong question was put to him. However, no benefit of the aforesaid judgment can be given to the present accused appellants, firstly, because here they have been convicted under Section 302 read with Section 34 IPC, whereas in the case under citation, conviction was under Section 302 IPC and, secondly, provisions envisaged under Section 34 are clear and unambiguous. Even though the appellants accused have not actually assaulted but since the ingredients of Section 34 are present in their action and sequence of events, it would be deemed that they have actually assaulted the deceased. Therefore, it is clear that right questions were asked from the accused appellants under Section 313 CrPC, which was that they were the one who committed the crime. As indeed under

law they were being prosecuted for having done this crime i.e. murder.

18. Consequently, the appeal being devoid of any merit is hereby dismissed. We affirm the conviction and sentence awarded to each of the accused appellants. Impugned judgment and order dated 7/8.8.2003, passed by the Sessions Judge, Udham Singh Nagar in Sessions Trial No. 441/2000, State v. Jagir Singh & Another, is upheld. Appellants Jagir Singh and Suba Singh are on bail. Their bail bonds are cancelled. They shall be forthwith taken into custody to serve out the sentence.

19. Let copy of this judgment and order be sent to the court below for compliance. Trial court record be sent back.

(Servesh Kumar Gupta, J.) (Sudhanshu Dhulia, J.) 15.5.2012 15.5.2012Prabodh