Sahablal & Anr vs State of Madhya Pradesh

Criminal Appeal Nos.228/2009 and 282/2009 and Criminal Revision No.580/2009 have been filed against a common judgment dated 13.01.2009

passed in Sessions Trial No.134/2008. Three accused persons were tried for commission of offence punishable under Sections 342, 294, 506 (Part II),

302, 302/34 and 323 of Indian Penal Code, 1860. The trial Court held appellant Sahablal and Kanchedi guilty for commission of offence punishable

under Sections 342, 294 & 506 (Part II) of IPC and awarded sentence of RI for one year, RI for three months and RI for three years alongwith fine

of Rs.1000/-, Rs.500/-, Rs.1000/-, with default stipulation RI for one month, RI for 15 days and imprisonment for one month respectively. The trial

Court further held appellant Sahablal and Kanchedi guilty for commission of offence punishable under Sections 302, 302/34 of IPC respectively and

awarded life imprisonment alongwith fine of Rs.1000/- with default stipulation RI for one month.

The trial Court held accused Billa @ Mukesh guilty for commission of offence punishable under Sections 342, 294 and 323 of Indian Penal Code

and awarded sentence of RI for one year, RI for three months and RI for one year alongwith fine of Rs.1000/-, Rs.500/- and Rs.1000/- with default

stipulation RI for one month, RI for 15 days and RI for one month respectively. The trial Court acquitted accused Mukesh from the offence

punishable under Section 302/34 of IPC and convicted him in other Sections as mentioned above. Accused Mukesh did not file any appeal against his

conviction. However, complainant Paramlal filed Criminal Revision No.580/2009 against acquittal of accused Mukesh from the offence punishable

under Section 302/34 of IPC.

Prosecution story in brief is that on 22.03.2008, when the complainant Paramlal was at his house, at around 3:15 O'clock he received information on

mobile from his brother-in-law Chandan that Sahablal and others had encircled him. Paramlal went on the spot alongwith his brothers Laxmi and

Balmukund on a motorbike. He noticed that Sahablal, Kanchedi and Billa had encircled his brother-in-law Chandan. He asked the accused persons

that why they had encircled Chandan. At that time, Billa had inflicted a blow of lathi at Balmukund. Thereafter, Kanchedi abused him and exhorted

Sahablal to kill other persons. At that point of time, Sahablal had fired a gun shot at deceased Laxmi, which had hit on his head. He fell down. All the

three accused persons ran away from the spot. Deceased was brought to the hospital, where he was declared dead. Report of the incident was

lodged at the police station. Police conducted investigation and filed charge-sheet. During trial appellants abjured the guilt and pleaded innocence. The

trial Court, after trial, held them guilty as mentioned above.

Learned counsel appearing on behalf of appellant-Sahablal has submitted that the incident had occurred all of sudden during heat of passion. Hence,

the offence committed by the appellant-Sahablal would fall under Section 304 Part I of IPC.

Learned Amicus Curiae appearing on behalf of appellant Kanchedi has submitted that the trial Court in paras 32 and 33 of its judgment has held

that there was no preplan. The incident had occurred all of sudden and there was no common intention. Hence, the conviction of appellant-Kanchedi

with the aid of Section 302/34 of IPC is improper.

Learned Amicus Curiae appearing on behalf of respondent Mukesh has submitted that he has rightly been acquitted from the charge of murder

because the trial Court in paras 32 and 33 of its judgment has held that there was no preplan and the incident had occurred all of sudden.

Learned Government Advocate appearing on behalf of State has submitted that all the three accused persons were present on the spot. They had

encircled Chandan. Accused Sahablal fired a gun shot, due to which deceased was died. There is evidence of eye witnesses. Hence, all the accused

persons shared common intention to kill the deceased. The trial Court has rightly convicted accused Sahablal and Kanchedi and acquittal of accused

Mukesh from the charge under Section 302/34 of IPC is not proper.

PW-5 Balmukund is injured eye witness. He deposed that at about 3:15 PM I received a phone call from Chandan that near Samanna Tigadda

some persons had encircled him. I went on the spot alongwith Paramlal and Laxmi on a motorbike. Gangaram and Ganpat also reached there. I

noticed that all the three accused persons had stopped Chandan. My brother Laxmi made a request from them to permit Chandan to leave. He told

them that Chandan was his brother in law. At that time, Billa ran towards me with a lathi. I tried to run away. Billa had inflicted two blows of lathi on

my head in right side. I fell down. My brothers Laxmi and Paramlal tried to save me. Thereafter, Kanchedi exhorted Sahablal and Sahablal fired a gun

shot at Laxmi, which had hit at his head. Thereafter, all the three accused persons ran away from the spot. I had taken the deceased to the hospital,

where he was declared dead. We did not attended the marriage of sister of Sahablal, therefore, there was an ill will amongst us. I was examined by

the doctor. There are some omissions in the police statement of this witness. Police statement under Section 161 of Cr.P.C. of this witness was

recorded on 09.05.2008, as per the statement of I.O. (PW-11).

PW-4 Gangaram Patel is another eye witness. He deposed that I had gone at the residence of Laxmi. He is my brother-in-law (bahnoi). Paramlal

received a phone call that some persons had stopped Chandan at tigadda. Thereafter, I and Ganpat went on the spot. I noticed that there were abuses

between Sahablal, Laxmi and Paramlal. Then Billa inflicted a blow of lathi at Balmukund. He fell down. Thereafter, Sahablal fired a gun shot at

Laxmi, due to which he fell down. Thereafter, accused persons went away from the spot. I had taken the deceased to the hospital, where he was

declared dead. In para 7 of his cross-examination, he admitted the fact that quarrel was going on in front of a petrol pump and when I reached there,

there were abuses and counter abuses between both the parties.

Another eye witness is PW-2 Chandan Patel. He deposed that I was going to the house of my brother in law Paramlal on a bicycle. When I

reached there, all the three accused persons abused me. On that ground, there was a quarrel between us. The accused persons were also abusing

other persons. I made a phone call to my brother in law Paramlal. Thereafter, Paramlal, Balmukund and Laxmi reached on the spot on a motorbike.

Paramlal asked the accused persons to permit him to leave. Then Kanchedi inflicted a blow at Balmukund by lathi. Billa also inflicted blow of lathi. At

that time, Kanchedi exhorted Sahablal and Sahablal had taken out a katta and fired at the deceased, which had hit the deceased. He was died in the

hospital. In his cross-examination, he admitted that there are some contradictions in his police statement. On the date of incident, there was festival of

Dhuredi. He denied the fact that quarrel had taken place when people were celebrating festival of Dhuredi.

FIR Ex.P1 was lodged at 7 O'clock i.e. within two and a half hours of the incident by PW-1. In the FIR, it is mentioned that there was a quarrel

and abuses and in that quarrel, Sahablal had taken out a katta from his pocket and fired at the deceased.

PW-11 D. N. Raj is the Investigating Officer. He deposed that I recorded FIR Ex.P1 and signed the same. Thereafter, I prepared spot map

Ex.P4 and signed the same. I seized plain earth and red earth vide seizure memo Ex.P5. On 23.3.2008, I recorded statements of Gangaram, Paramlal

and Ganpat. On 25.03.2008, appellant Sahablal was arrested. On his memorandum Ex.P6, a katta was seized vide seizure memo Ex.P7. I signed the

same. On the same date, Billa @ Mukesh was also arrested and a lathi was seized from him. Kanchedi was also arrested. He further deposed that

statements of Nathuram, Balmukund, Chandan, Smt. Asharani, Balram and Smt. Phoolan Bai were recorded on 9. 05.2008.

PW-7 Dr. Sanjeev Gupta performed autopsy of the deceased. He deposed that I noticed one gun shot injury on left temporal region of the

deceased. Bullet was taken out from the injury. The deceased was died due to the gun shot injury. It was ante-mortem in nature.

Evidence of PW-5 Balmukund, who is an injured eye witness, is not reliable because his 161 statement was recorded by the police after one and a

half months after the incident i.e. on 9. 05.2008. Investigating Officer has not offered any explanation in regard to delay in recording statement of the

aforesaid witness under Section 161 of Cr.P.C.

The Hon'ble Supreme Court in the case of Harbeer Singh and Sheeshpal and others and State of Rajasthan and Sheeshpal and others, reported in

(2016) 16 SCC 418 has held as under in regard to delay in recording the statement under Section 161 of Cr.P.C.:

“16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against

the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C.

In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on

23.12.1993. The evidence of PW6 was recorded on

26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in

recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and

credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs.

State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT

of Delhi), (2010) 6 SCC 1].

However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of

statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the

Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain

Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005)

3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the

prosecution case.â€​

The principle of law is that if there is a delay, then prosecution has to explain the delay in recording the statement under Section 161 of Cr.P.C.

Non-explanation of delay would create doubt on the testimony of the witness.

There are two other eye witnesses PW-4 and PW-2. PW-2 Chandan Patel specifically deposed that there were abuses and counter abuses. PW-

4 Gangaram Patel also deposed that when I reached at the spot, there were abuses between deceased (Laxmi), Paramlal and Sahablal and in that

event, the incident had taken place. The police statement of PW-4 is Ex.P12.

From the evidence of these witnesses, this fact has been proved that there was quarrel, abuses and counter abuses amongst Sahablal, Laxmi and

Paramlal and in that event, appellant Sahablal fired a gun shot at the deceased. The incident had occurred all of sudden without preplan.

The Apex Court in the cases of Vijendra Singh vs State of Uttar Pradesh and Mahendra Singh vs State of Uttar Pradesh, (2017) 11 SCC 129

after considering previous judgments of the Hon'ble Apex Court has held as under in regard to applicability Section 34 of IPC:

“21. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the

appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to

associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of

Section 34 IPC.

In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad, AIR 1955 SC 216. The three-

Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:-

“32. … It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been

done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor, AIR 1945 PC 118. Accordingly there must have been a prior

meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can

individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of

minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously

convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the

murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor , AIR 1925 PC 1 and Mahbub Shah

v. King Emperor (supra). As Their Lordships say in the latter case, “the partition which divides their bounds is often very thin: nevertheless, the

distinction is real and substantial, and if overlooked will result in miscarriage of justiceâ€​.

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls

on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.

There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre- arrangement

there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other,

e.g., the intention to rescue another and, if necessary, to kill those who oppose.â€​

And, again:- (Pandurang case)

“34. … But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this

class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent

to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances

which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, “the incriminating facts must be incompatible with the

innocence of the accused and incapable of explanation on any other reasonable hypothesisâ€​. (Sarkar’s Evidence, 8th Edn., p. 30).â€​

In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case,

the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several

persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It

has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention.

The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged,

each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the

concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common

object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the

features of Section 34. In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of

Section 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 existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to

which Section 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. Thereafter, the Court held:- (Mohan Singh case)

“13. ….. It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has

been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a 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 a necessary inference deducible from the

circumstances of the case.â€​

In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled

thus:-

“7...... Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.,

(1975) 4 SCC 247; Maina Singh v. State of Rajasthan, (1976) 2 SCC 827) Lord Sumner’s classic legal shorthand for constructive criminal liability,

expressed in the Miltonic verse “They also serve who only stand and wait†a fortiori embraces cases of common intent instantly formed,

triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood.

Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or

jettison the plain punitive purpose of the Penal Code.â€​

In Lallan Rai and Ors. v. State of Bihar, (2003) 1 SCC 268 the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has

ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular

result.

In Goudappa and Ors. v. State of Karnataka , (2013) 3 SCC 675 the Court has reiterated the principle by opining that Section 34 IPC lays down a

principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed

the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the

crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was

committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion

whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken

into consideration.

The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of

common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases

cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common

intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained

from the evidence brought on record. The common intention to bring about a particular result may well develop on the spot as between a number of

persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein

have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can

be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See : Kirpal and Bhopal v.

State of U.P.[16]). In Bharwad Mepa Dana and Anr. v. The State of Bombay[17], it has been held that Section 34 IPC is intended to meet a case in

which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove

exactly what part was taken by each of them. The principle which the Section embodies is participation in some action with the common intention of

committing a crime; once such participation is established, Section 34 is at once attracted.â€​

The principle of law is that Section 34 implies a prearranged plan and to convict the accused of an offence applying the section. it should be

proved that criminal act was done by the concerned pursuant to the prearranged plan.

In this view of the fact, in our opinion, conviction of the appellant Kanchedi by the trial Court with the aid of Section 302/34 of IPC is against the

law.

Learned counsel for appellant Sahablal has contended that appellant Sahablal is entitled benefit of exception 1 of Section 300 of IPC because the

incident had occurred all of sudden and there was provocation from the deceased. We are not inclined to accept the aforesaid argument because as

per the aforesaid exception, the provocation so given must have been grave and the offender have been deprived of his power to self control. Abuses

and counter abuses could not be termed as so grave provocation that on this ground a person is deprived of his power to self control. In view of

aforesaid evidence on record, in our opinion, conviction of appellant Sahablal under Section 302 of IPC is proper. There is evidence that accused

persons had abused the complainant and the deceased and injury was caused to Balmukund by Billa @ Mukesh. Hence, the conviction of the

appellants Sahablal and Kanchedi under Sections 342, 294 and 506 Part II of IPC is proper.

Consequently, on the basis of aforesaid discussion, the appeal filed by appellant-Sahablal is hereby dismissed. His conviction and sentence

awarded by the trial Court is hereby affirmed. The appeal filed by appellant-Kanchedi is partly allowed. His conviction and sentence awarded by the

trial Court under Section 302/34 of IPC is hereby set aside. His conviction under Section 342, 294 and 506 Part II of IPC is hereby upheld. He was in

jail for a period of one year and four months, hence, his sentence is modified as already undergone. He is on bail. His bail bonds are hereby

discharged. The criminal revision filed by the complainant-Paramlal is hereby dismissed.