Sher Singh and Another vs State of Rajasthan

S.S. Byas, J.—Sher Singh and his father Prem Singh, the two appellants before us were convicted u/s 302/34 and 448 IPC and each was sentenced to imprisonment for life with a fine of Rs. 200, in default of the payment of fine to further undergo two months'' rigorous imprisonment on the first count and six months rigorous imprisonment under the second count. The substantive sentences were directed to run concurrently. They have come up in appeal and challenge their conviction.

The incident is alleged to have taken place at about 10 or 11 p.m. on 30-6-1979 in village Jhundpuri P.S. Tizara District Alwar in which one Preet Kaur aged about 10 years was nacked to death by the appellants with the aid and assistance of Fauza Singh who was the other son of the appellant Prem Singh. The deceased victim Preet Kaur was the wife of the appellant Sher Singh. The prosecution case may be stated as under:

PW 8 Mst. Devti Kuar and PW 6 Hukam Singh are the parents and PW 9 Jeet Kaur is the sister of the deceased victim Preet Kaur. They all were living in village Jhundpuri. Preet Kaur was married to Sher Singh and Jeet Kaur was married to Fauza Singh. Both the sisters after their marriage went to village Ramchandrapur in district Nainital (Uttar Pradesh) to live with their husbands & in-laws. They were not properly and kindly treated. The husbands and in-laws used to often beat and torture them. Hukam Singh went to vii. Ramchandrapur and a Panchayat was convened to get the matter settled. In the Panchyat, Preet Kaur and Jeet Kaur appeared and raised grievances about their ill treatment by their husbands and in-laws. However, the matter remained undecided. Hukam Singh (PW 6) brought both his daughters Preet Kaur and Jeet Kaur to his village Jhundpuri nearly one month before the incident. The girls were thus living with their parents. In the fateful night, Hukam Singh (PW 6). Devti Kaur (PW 8) and the deceased Preet Kaur were sleeping on separate cots in their courtyard situate outside their house. Jeet Kaur who had delivered a son only two days ago was sleeping in the entrance of the room. At about 10 or 11 P.M. the appellants Sher Singh & Fauza Singh accompanied with Fauza Singh came there. Prem Singh had a gun while Sher Singh and Fauza Singh were having swords with them. Prem Singh asked his son Fauza Singh to out Preet Kaur to pieces. Thereupon Fauza Singh struck 4 or 5 blows to Preet Kaur. The injuries resultings from the blows were severed Hukam Singh and others raised cries. The prosecution witnesses Noor Mohd. and Diwan Singh and Dayal Singh who lived nearby rushed to the spot. The appellants and Fauza Singh retreated and ran away. There was profuse bleeding from the wounds of Preet Kuar and she passed away then and there on the spot. Hukam Singh accompanied with some persons went to Police Station Tizara and presented written report Ex. P-10 of the occurrence. The police registered a case u/s 302/34 and proceeded with the investigation. The investigation was conducted by PW 14 A.S.I. Lallu Ram. He arrived on the spot, inspected the site and prepared the inquest report of the victim''s dead body. The medico legal autopsy over the victim''s dead body was conducted by PW 10 Dr. V.K. Jain the then Medical Officer Incharge--P.H.C. Tizara, who was called on the spot for that purpose. The Doctor noticed the following ants mortem injuries over the victim''s dead body:

External:

(1) Incised wound 5"x 1" x 6" on occipital region placed horizontally along with the occiptal bone fracture;

(2) Incised wound 5"xl"x3" from the medical aspect of right eye, (inner canthus) extending upto lower border of right ear placed obliquely;

(3) Right hand out through and through and separated from the wrist joint;

(4) Incised wound 4 cm x 16 cm x 1 cm on the middle of left forearm on the under aspect;

(5) Incised wound 2" x 6" x 6" depth on the middle of right fore-arm on materal aspect

Internal:

(1) There is a depressed fracture of occipital bone of skull placed horizontally in the area of injury No. i:

(2j There is fracture of right marilla bone and angle of right mandible injury No. 2 described as above;

(3) There is fracture of lower and of right ulna and radius in through and through out as described in injury No;

(4) There is fracture of middle of shaft of ulna on left side as described in injury No. 4;

(5) Eye ball is coming out on right side from the orbit.

In the opinion of Doctor Jain, the cause of death was shock due to intra-criminal haemorrhage as well as haemorrhage from injury mentioned above. Injury No. 1 in itself and the remaining injuries were found sufficient in the ordinary course of nature to cause death. The Doctor prepared the post mortem examination report Ex.P 1. The appellants Prem Singh and Sher Singh were arrested on 7-7-1979. Accused Fauza Singh absconded and could Dot be arrested. On the completion of the investigation, the police presented a challan against the appellants Sher Singh and Prem Singh and the absconding accused Fauza Singh in the court of Munsif & Judicial Magistrate, Tizara who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charges Under Sections 446 and 302 IPC against the accused Sher Singh and Prem Singh to which the pleaded not guilty and faced the trial. The denied their presence on the spot and claimed absolute innocence. According to them, they have been falsely implicated cause their relations with the complainant party remained no more sweet and cordially en account of Preet Kaur and Jeet Kaur. In support of its case, the prosecution examined 14 witnesses and filed some documents In defence, the two accused examined one witness to show that they were present in village Ramchandrapur in the sight of June 30, 1979. On the conclusion of trial the learned Sessions Judge rejected the defence of Alibi put forward by the appellants and held the charges duly proved against them. The were, therefore, convicted and sentenced so mentioned at the very outset. Aggrieved against their conviction, the accused Sher Singh and Prem Singh have taken this appeal.

We have heard Mr. Biri Singh learned Counsel for the appellants and the learned Public Prosecutor Mr. O.P. Sharma. We have also gone through the case file carefully.

Mr. Biri Singh did not challenge the testimony of Dr. V.K. Jain (PW 1) relating to the cause of death of the deceased victim Preet Kaur. We, therefore, need not touch his evidence at length Suffice it to say that the death of Preet Kaur was homicidal and not natural.

The appellants were convicted u/s 302 with the aid the applicability of Section 34 IPC. It was contended by Mr. Biri Singh that the very presence of the appellants on the spot is that night is highly doubtful. The incident had taken place in the hight and the visibility was poor. It is, therefore, a case of mistaken identity. It was argued that on account of the strained relations between the members of the complainant party and the appellants, they were falsely implicated nearly on suspicion. It was also argued that even if the presence of the appellants on the spot is taken as proved, their mere presence on the spot was not sufficient to attract Section 34 IPC. The story of accused Prem Singh''s exhorting Fauza Singh to kill Preet Kaur was not mentioned in the FIR Ex.P-1 which was immediately lodged before the occurrence. This allegation of exhortation was made for the first time during, trial. If the evidence relating to exhortation is discarded, it would not be free from risk to apply Section 34 IPC only on the ground of their presence at the sight.

It was on the other contended the Public Prosecutor that one among the culprits is the father and the remaining two are his sons. They; came down right from District Nainital to village Jhundpuri, each armed with deadly weapons They had not come on the spot for some pious purpose. They came together and went away together after committing the murder. Alt these fact when taken together make out strong case for attract in Section 34 IPC. We have given our thoughtful consideration to the rival submissions.

We will examine the case with the assumption that the appellants Sher Singh and Prem Singh accompanied with Fauza Singh went together village Jhundpuri in that might. The pertinent question is whether as their presence on the spot along with Fauza Singh is sufficient to attract the provisions of Section 34 IPC. Section 34 IPC requires formation of a common intention-to commit some offence It implies that the intention of one must be known to the other and each should share that intention. It is only then that the common intention can be said to have been formed. Direct evidence as to the formation of or sharing the common intention is seldom available. It is only from the circumstances arising in a given case from which an inference is to be drawn whether there was common intention and the offence was committed in furtherance of that common intention. The mere presence of one is not sufficient to make him liable u/s 34 IPC until and unless it is established that his presence was on account of his sharing the common intention along with the other culprits.

Here in the instant case, there are some striking deatures which cannot he ignored or over-ruled. The three ocular witnesses PW 6 Hukam Singh, PW 8 Devti Kaur and PW 9 Jeet Kaur no where staled that the appellants though they were armed with gun and sword caused any injury to Preet Kaur or to them. It is strange that accused Sher Singh was having a sword and set he did not. it. There is thus no physical overt-act on the part of these two appellants to show their complicity in the commission of the murder.

These three witnesses PW 6 Hukam Singh, PW 8 Devti Kaur and PW 9 Jeet Kaur no doubt stated that then the three appellants came to their house, accused Prem Singh told other accused Fauza Singh to cut Preet Kaur to pieces and it was only thereafter that Fauza Singh struck; blows to Preet Kaur with his sword. These three witnesses thus spoke about the call and exhortation given by accused Premsingh to the other accused Fauzasingh If this evidence relating to call and exhortation is believed, Section 34 IPC these can be safely pressed into service at least against accused Prem Singh. Unfortunately, the evidence relating to call and exhortation is wholly untrustworthy. In the FIR Ex. P 10 lodged by PW 6 Hukam Singh. No allegation of call or exhortation has been made Hukam Singh is the father of the deceased victim. He had seen the entire incident. Had there been exhortation as alleged by the prosecution during trial, this fact in all probability must have been mentioned in the FIR Ex. P 10. The absence of the allegation of call and exhortation in Dr. P 10 imples that no call or exhortation was given by accused Prem Singh to accused Fauza Singh. The entire story of call or exhortation has been invented and introduced for the first time during trial. We, therefore, disbelieve the evidence of the three coular witnesses relating to call or exhortation.

We need not stress that the evidence of exhortation is generally taken as a weak piece of evidence. The evidence relating to call or exhortation or instigation can be easily manufactured at any time and as such prudence required that when an accused is to be convicted with the aids of Section 34 IPC on account of his giving call or exhortation or instigation, unimpeachable and unassailable evidence should be accused. The evidence should be convincing which can be safely accepted. In the instant case, the evidence relating to call or exhortation of instigation does not this test. The learned Session; Judge while discussing the evidence relating to exhortation failed to take into account all these circumstances.

It is true that the there accused came together on the spot and left the place together after Preet Kaur this nacked to die. The learned Public Prosecutor wents to was the circumstance to apply Section 34 IPC We are unable to agree with him. In Gajjan Singh Vs. State of Punjab, a very similar situation arose. There were also three accused and a murder was committed. No overtact was attributed of to of them. They were convicted on account of their presence and accompanying the third accused who had committed the murder. The conviction of the two was set aside. It was observed by their Lordships:

The mere fact B and G came together armed with rifles was not sufficient to indicate that they had come having shared a common intention to commit the murder. On the evidence and the facts found the inference of G''s sharing the common intention with B for the murder of A is not possible to be drawn. It may be that he had such common intention. But it is difficult to fill the gap between ''may'' and ''must'' and to say that G must have shared the common intention for causing the death of A Therefore, the High Court had committed an error of law in sustaining the conviction of G u/s 302/34 for the murder of A notwithstanding the missing link in the evidence to supply facts to justify the said conviction.

We have already discussed above that no overt-act has been attributed to the appellants by the eye-witnesses. As such merely because they went on the spot along with the third accused Fauza Singh who committed the murder, they cannot be made liable u/s 302 with aid of Section 34, IPC. There is no case for attracting and invoking Section 34, IPC against the appellants. Section 34, IPC was wrongly harnessed for convicting them.

In the result, we allow the appeal of accused Sher Singh and Prem Singh. Their conviction and sentences under Sections 302/34 & 448, IPC are set aside. They are already on bail and deed not surrenders. Their bail bonds appeal here by cancelled.