State vs Arjun Singh

Shivdayal, J.—This is an appeal against the acquittal of Arjun Singh respondent of the offences under Sections 302/34 and 307 of the Penal Code.

The case for the prosecution was that there was some dispute regarding certain fields between Samandar Singh and his brothers on one side, and Arjunsingh and his brothers on the other. On September 11, 1956 at about 10 A. M. Arjunsingh accompanied by his brothers Pritamsingh, Karnailsingh and Dalip Singh went to the fields armed with guns. They asked Samander Singh and his brothers to quit, claiming the fields to be theirs. Samandarsingh and his brothers not agree to vacate. The accused party threatened them, whereupon Jahangir Singh asked the accused party to fire at him. Pritamsingh fired his gun hitting Jahangir on his chest. He sat down, for a moment and then tried to run away but he could not, and, after walking a short distance, he fell down dead. It was also alleged that while Samandar Singh and his brothers were trying to escape from the fields, Arjun Singh fired his gun at them with the result that a bullet struck Samandar Singh on his neck, but he surrvived.

The first information report was lodged at 12.30 A. M. with the police station, Dabra, distance from the place of occurrence being 4 miles.

Pritamsingh, Karnail Singh and Dalip Singh were arrested and were tried, while Arjunsingh was absconding. We are told that in that trial the Sessions Court convicted Pritamsingh of the offence u/s 302 I. P. C. and sentenced him to imprisonment for life, and his conviction and sentence were maintained by this Court. The other two were acquitted by the trial Judge and there was no appeal against the acquittal.

Subsequently Arjunsingh was arrested, and he he was tried by the Additional Sessions Judge, Gwalior, under Sections 302/34 and 307 I.P.C. He has been acquitted of both the charges. The trial Judge has found the evidence of the prosecution witnesses unworthy or safe reliance. He has disbelieved the fact that Samandarsingh was hit by the bullet fired by Arjunsingh and for that reason he acquitted the accused of the offence u/s 307 of the Penal Code.

It cannot be doubted that Samandarsingh did receive the gun shot injury on his neck at the time and place of occurrence. Likewise, it cannot be doubted, and really it has not been contested before us, that Jahangirsingh was shot dead at the place and the time of occurrence. The only questions for determination are, as they were in the Court below: (1) whether the accused was present when Jahangir Singh was shot dead and Samandar-Singh was injured and (2) whether he is liable for Jahangir's murder, with the aid of Section 34 of the Penal Code.

The statement of Samandarsingh was this. On the 11 th September Jahangir Singh had gone for winnowing rice in his field. He and Sadhusingh were also there. Arjunsingh Pritamsingh, Karnailsingh and Dalipsingh came there armed with guns at about 10 in the morning. They asked them to vacate as they claimed the fields to be theirs. The complainant party refused to get out claiming in themselves the title to the fields. The accused party abused them and threatened to kill them Jahangir asked them not to scare them away but to shoot at him if they dared to do so. Thereupon Pritamsingh came forward and fired his gun at Jahangir's chest. Jahangir instantenously sat down and then tried to run towards his house. The witness and Santosh Singh also tried to escape from there. In the meantime Arjunsingh fired his gun which struck the witness on his neck and he fell down but survived, Jahangir Singh succumed to his injuries. The witness asked Santosh Singh to stop. He and Sadhu Singh took the dead body to their huts and he then went to lodge a report with the police.

8 Santosh Singh P. W. 2 fully corroborated Samandarsingh. He also stated that all the four (namely Arjunsingh, Karnailsingh, Pritamsingh and Dalipsingh) had guns in their hands, and they demanded possession of the fields from the complainant party. Samandar Singh and Jahangir Singh resisted whereupon the accused party called them bad names and also threatened to kill them. Pritamsingh, Dalipsingh and Karnailsingh fired their guns but Jahangirsingh said that that would not frighten them and if they so wanted they should fire straight at his chest. Hearing this Pritamsingh fired at him. Jahangirsingh sat down and then tried to run away. The witness and Samandarsingh also took to their heels. In the meantime Arjunsingh fired at Samandarsingh which struck on his neck. Jahangir succumbed to his injuries when he was trying to run away. Both the brothers took Jahangirsingh's body to their huts.

Shrimati Santosh Kunwar P. W. 6, wife of Samandarsingh, not only stated that she was bringing food for her husband and reached the place of occurrence but also tried to give ocular evidence of the actual firing. There can be no doubt that she reached the vicinity of the place of occurrence but having regard to her statement during the investigation, she cannot be relied on as an eyewitness to the killing of Jahangir.

I have gone through the statements of Samandarsingh, Santoshsingh with greatest care. Shri Anand has not pointed out to us anything besides the comments of the learned, Additional Sessions Judge with which I shall deal presently.

The trail Judge has stressed a great deal the discrepancies in the statements of these witnesses as regards the number of shots fired and their sequence. It is pointed out that according to Samandar Singh's statement in the Sessions Court, the first shot was fired by Pritamasingh and that struck Jahangirsingh on his chest while in his police statement he had said that at first all the four persons of the accused party fired in the air and it was only when the second ound as fired that Jahangir was hit. Secondly, in the first information report Samandarsingh stated that all the four brothers fired together when two bullets struck the witness and the other two hit Jahangir. Thirdly Jahangir and Samandarsingh really received one gunsh otinjuiy each but the prosecution story at the initial stages was that each of them received two bullets. Fourthly, in his, police statement Santoshsingh had stated that Jahangirsingh got two gun shot injuries, the second one struck him on the shoulder, while as a matter of fact the deceased received only one injury. Fifthly, Samandarsingh had not stated either in the first information report or in his statement to the police as to whose bullet struck him but in the trial Court he came forward with a definite story that it was Arjunsingh's bullet which injuried him. Sixthly, according to Samandarsingh's police statement Jahangir actually died when he and Santoshsingh were taking his injured body to their huts but he told in the trial Court that they only carried the dead body after Jahangir had already died.

The substance of the above criticism in that there are discrepancies as to the number of shots and as to their sequence It is a matter of common experience that witnesses out of their zeal, in vain try to give such details when guns are fired by several persons. Naturally, in that commotion these witnesses could not actually mark, count and remember who fired first and who fired next. The contradictions pointed out above are really not material. There is not a shadow of doubt that Arjunsingh was presnt at the scene of occurrence and that he was armed with a gun. There is also no denying the fact that Jahangirsingh was killed by a gun shot injury and that Samandarsingh himself received an injury on his neck. Neither did the learned trial Judge point out, nor has Shri Anand succeeded in telling us, that the statements of these two witnesses should not be believed as regards the presence of Arjunsingh on the spot and his carrying a gun with him.

The respondent admittedly absconded soon after the offence and was arrested after a long time. His explanation is that he apprehended arrest by the police because of having been wrongly implicated alongwith his brothers. The explanation is not at all satisfactory and his absconding is a circumstantial evidence which goes against him.

Shri Anand lays much emphasis on the fact that this is an appeal against acquittal and argues that it is not sufficient that we independently believe the statements of Samandersingh and Santosh Singh; it is further required that there must be substantial and compelling reasons or, in other words, we must hold that no other conclusion was possible than this guilt of the respondent. Learned counsel relies on the decisions of their Lordships in Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore-Cochin, , Ajmer Singh Vs. The State of Punjab, , Pooransingh vs. State, AIR 1951 SC 637. All these decisions and others, including those of the Privy Council in Shiv Swaroop vs. King Emperor, 61 IA 398 and AIR 1945 151 (Privy Council) , were recently reviewed by their Lordships in the case of Sunwant Singh vs. State of Rajasthan (Criminal appeal No. 119 of 1958 decided on December 9, 1960). Their Lordships have now finally pronounced as follows:

The foregoing discussion yields the following results (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Shiv Swaroop's case afford a correct guide for the appellate Court's approach to a case in disposing, of such an appeal; and (3) the different phraseology used in the judgments of this Court such as, (1) "substantial and compelling reasons",(ii) "good and sufficiently cogent reasons" and (iii) "strong reasons, are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion but in doing so it should not only consider every matter on record having a bearing on the question, of fact and the reasons given by the Court below in support of its order of acquittal in its ariving at a conclusion on these facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified

Pritamsingh has already been held liable for firing a gun on Jahangir Singh. I have held above that Arjunsingh was present there with a gun. The question is whether he is vicariously liable for the Shri Anand endeavours to urge that in view of the acquittal of the other two accused (Karnial Singh and Dalipsingh) who were similarly situated, Arjunsingh cannot be convicted. When the learned counsel started to tell us the grounds on which the Court in the first case acquitted them, the Government Advocate intervened and urged that these grounds could not be looked into. Likewise when the Government Advocate wanted to take us through the reasons for which the conviction of Pritamsingh was upheld by this Court, Shri Anand objected that they were irrelevant and could not be read. Since no judgment of the previous trial is on the record, I shall proceed exclusively on the material before me-

Even if I do not say anything about Karnail Singh and Dalip Singh, as it is indeed unnecessary, I do find that the presence of Arjun Singh at the place and time of occurrence has been fully proved.

Now I shall consider whether the respondent can be held guilty of the offence u/s 302 read with Section 34 of the Penal Code The case for the prosecution was that the accused party came to the disputed field and threatened the complainant party of dire consequences if they did not surrender possession. On this, the matter took a sudden and unexpected turn when Jahangirsingh came out with the retort that they could not be scared away like that and they should shoot at him if they dared to do so On hearing this Pritamsingh fired at Jahangirsingh. It was not as if Jahangir was killed while retaliating by force, or resisting, a forcible entry by the accused party. The accused party could not have anticipated this development and it will be too much to assume that they came to the spot with a prior meeting of their minds about it.

The essence of joint liability is in the common intention to commit the act complained of A here presentment of a possible danger does not constitute an intention to Court it. It must be foreseen, fore-known and premeditated. If an assembly realised and under stood that a certain offence was likely to be committed in prosecution of a common object,that might bring the case u/s 149, but not u/s 34. Knowledge of a likely result does not amount to an intention to bring about that result Knowledge of a likely result and the actual result may, however, justify the determination of the intention of the actual doer, but are not the sure tests to determine the common intention of others who had made a common cause with the actual doer and whose liability will depend on whether or not the act was done in furtherance of the common intention of all. The criminal act for which others are sought to be made liable must be connected with the common intention. If it is extraneous to it or is not required to be done at all for carrying but the common intention, it cannot be said to be in furtherance of it: "The Act" writes Kenny in his Outlines of Criminal Law (15th Edition, page 162), "must relate to the" common design and not totally or substantially vary from it."

It is true that a common intention can develop in the course of an event but that depends upon the circumstances of each case. Here it was too abrupt and sudden for Arjunsingh to share a common intention with Pritamsingh when the latter fired at Jahangir Singh. It does not suffice that they had intended to commit cirminal trespass. The challenge held out by Jahangir Singh was not even a natural consequence or likeliood. The accused party, might have brought guns to acare sway the complainant party as is evident from their firing the first round in the air. Even if I do not stop here and further assume that they must have intended to forcibly take possession of the fields and to use their arms if they were resisted by force, it will be too much to infer that the others of the accused party shared a common intention with Pritamsingh then Jahangir threw the challenge to shoot at him. When Jahangir Singh uttered those words he must have hardly thought that the accused party would take it literally and readily, and put it into action. In the absence of any direct evidence regarding premeditation or pre-planning to cause the death of Jahangir Singh (nor can such evidence be expected) and in the peculiar circumstances stated above, the accused, in my judgment, cannot be held contrustively liable for the particular and unexpected act of Pritamsingh. Jahangir Singh's challenge or offer to shoot at him changed the complexion of the matter. It is quite unnecessary to go into the question whether the act of Pritamsingh fell within exception 5 to S. 300 I.P.C.

I shall now deal with the second charge against the accused. There is no manner of doubt that Samandar Singh received a gun shot injury on his neck while he was trying to get away from the field and there is also no doubt that the gun was fired by some one of the accused party. The prosecution case that it was Arjunsingh whose bullet hit Samandarsingh is not worthy of credence in view of the fact that neither the first information report, which was lodged by no one else than Samander Singh himself, nor his statement to the police which was recorded on the very day of the occurrence, supports it. I could have underestood any other omission but it is not possible to believe that Samandarsingh had seen Arjunsingh firing at himsalf and yet he did not state that fact to the police soon after the occurrence. At any rate, the benefit of doubt must go to the accused. I agree with the trial Judge that the respondent can not be convicted for the offence u/s 307 I.P.C. for his own individual act.

I have given a considered thought to be the question whether Arjun Singh is guilty of the offence u/s 307 read with Section 34 of the Penal Code. If the original version of the prosecution as stood in the F.I.R. had been pursued and proved, it would have been a clear case u/s 307 34 I.P.C. The prosecution unnecessarily introduced an improvement and endeavoured to fasten an individual act to Arjun Singh And to justify and reconcile the improved version the witnesses made discrepant statements. Such an undesirable tendency only injuries the prosecution case. No charge was framed against the respondent for a constructive liability Even the appeal filed by the State Government before us does not contain a prayer for conviction u/s 307 read with Section 34 I P.C. All this aside, it is remarkable that some onefired at Samandar Sigh when he was running away from the disputed fields. It is difficult to attribute to the others a common intention to cause hurt to a person who was running away from the fields because on its own showing, the prosecution at the most alleged a common intention to take forcible possession. Causing hurt to a person who leaves the fields cannot be said to be in pursuance of the common intention.

For these reasons I see no ground for interference with the order of acquittal The State appeal is dismissed. The bail bonds are discharged.

Before I leave this case I cannot help observing that the prosecution most ill advisedly spoiled its case by endeavouring to improve upon that was made out in the first information report. It is not formse to surmise whether this was done to strengthen the prosecution case or to weaken it. Deviation from truth can never be helpful in the administration of justice and the earlier this is realised by all concerned the better it is.

Khan J.- I agree that the appeal must be dismissed. The accused must be given the benfit of doubt.