Supreme Court on Fake Encounter Killing

Supreme Court of India

Brijlala Pd. Sinha vs State Of Bihar on 13 July, 1998
Author: Pattanaik
Bench: M Mukherjee, G Pattanaik

PETITIONER:

BRIJLALA PD. SINHA

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 13/07/1998

BENCH:

M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRL. APPEAL Nos. 218/98, 279/98 & 280-282/98

JUDGMENT

PATTANAIK,J.

These five appeals are directed against the judgment dated 28.11.1997, of the Patna High Court passed in Criminal Appeal No. 459 of 1996 and Death Reference No. 5 of 1996. All the accused appellants are police officials. All of them were convicted under Section 302/34 IPC and were directed to be hanged till they are dead by the learned Additional Session Judge, Gaya. Accused appellant Dudh Nath Ram, in addition, was convicted under Section 201 IPC but no separate sentence was awarded. The High Court, on appeal, being preferred by the accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal Procedure Code affirmed the conviction of all the accused appellants under Section 302/34, but on the question of sentence while the High Court affirmed the death sentence awarded against Dudh Nath Ram – appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha – appellant in Cr,. Appeal NO. 149 of 1998, and Victor Fedeles – appellant in Crl. Appeal No. 279 of 1998, commuted the death sentence as against accused Dinesh Singh, Deo Narain Ram, Jaikaran Yadav and sentenced them to undergo imprisonment for life, who are the appellants in Criminal Appeal Nos. 280-82 of 1998. The main ground for giving sentence of imprisonment for life as against the aforesaid three appellants is that they were merely the constable and obeyed the commands of their superior officers and, as such, their case would not come within the test laid down by this Court to bring it as a rarest of rare case.

Broadly stated the prosecution case sought to be established through different witnesses is that accused Dudh Nath Ram was the Station House Officer of Barachatti Police Station in the State of Bihar. On the early morning of 5th of December 1993 while Dudh Nath was taking tea Jaikaran informed that a Maruti Van has been speeding up with criminals and there has been indiscriminate firing from the said Maruti vehicle. On getting this information the accused Police Officials immediately left the Police Station to chase the Maruti Van. The Maruti Van, however, was forced to stop on account of a traffic jam. The chasing police officials came near the Maruti Van and started firing at the Van indiscriminately in consequence of which 3 persons from amongst the occupants of the Maruti Van were killed and their dead bodies were then removed in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating therein that as the occupants of the Maruti Van started firing at the police personnel, the police personnel resorted to firing and in course of the occurrence 3 persons were found dead. It may be stated at this stage that prosecution tried to establish a case that the accused police officers after chasing the Maruti Van and finding the van to be immobile on account of traffic jam surrounded the said van and dragged Rajesh and Khedan from the vehicle and demanded a sum of Rs. 1 lakh, but when Rajesh could not accede to the request then he and Khedan were shot dead from the close range and the driver who was sitting on the driving seat was also gunned down. This part of the prosecution case, however, could not be established as none of the prosecution witnesses unfolded this part of the prosecution case. It may be further stated that a written report was submitted to the Superintendent of Police, Gaya on 9.12.1993, alleging therein that the police officials have committed * murder of three persons as their demand of one lakh of rupees could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the investigation of the said case was taken up by the C.I.D. Patna under Government Order and it is on completion of the investigation of the said case chage-sheet was submitted against the accused persons and on being committed to the Court of Sessions the accused persons stood their trial. The accused persons pleaded not guilty and according to them a false case has been foisted. The prosecution examined as many as 65 witnesses and exhibited a large number of documents. The prosecution witnesses who were supposed to unfold the manner in which the incident took place at 71 Mile Post on G.T. Road, namely, PWs 2,4,5,9,10,11,12,17,18,20,22035,40,52,53,54,56,57,60 and 61 all became hostile and were cross-examined by the prosecution. Similarly, PWs 13,15,16,21,30,46,47, and 49 were also tendered by the prosecution cross examined and consequently their evidence could not be pressed into service in establishing the charges against the accused persons. PWs 6,7,8,9,14,19,33,34,38,39,50,51,58,59,62, and 64 are the police personnel examined in this case. PWs 24 and 55 are the formal witnesses to the seizure on the seizure list. There is no dispute that on the date of occurrence of 5.12.1993 at 71 Mile Post at about 7.30 a.m. 3 persons were killed. But in the absence of any direct testimony as to the manner in which they were killed the prosecution case hinges upon the circumstantial evidence. The learned Session Judge relying upon the evidence of PWs 63 and 65 came to hold that deceased Rajesh Dhawan alongwith Khedan Yadav and Vinay Kumar Mishra proceeded from Ranchi to Varanasi in the night of 3.12.1993. On the basis of the evidence of PWs 23,41,42,44,45, and 48 the learned Session Judge came to hold that Rajesh Dhawan had made purchases at Varanasi on 4.12.1993. The witnesses also further revealed that two other persons had accompanied Rajesh Dhawan. PW 65 established the fact that she had a telephonic talk with her husband from Varanasi on 4.12.1993 at 7.00 p.m. On the basis of the evidence of PWs 26,27,28,29,31 and 32 to learned Session Judge came to hold that the vehicle in which deceased Rajesh Dhawan was travelling with other persons developed certain defect and misfiring was noticed at 7.00 a.m. on 5.12.1993. On the basis of the evidence of pWs 7 and 8, who are the two constables present at Barachatti Police Station the learned Session Judge came to hold that early in the morning accused Jaikaran came and informed while Dudh Nath Ram and others were taking tea at the Police Station, that some dacoits are speeding up in a Maruti Van and while speeding up they are also firing from their revolver. Thus the aforesaid prosecution evidence clearly establishes the fact that five accused appellants excepting accused Brij Lala Prasad Sinha moved in a Police Jeep chasing the Maruti Van on being informed that the miscreants are speeding up in a Maruti Van and while so speeding up are indulging in firing from their weapons. The said PWs 7,8 and 9 also stated in the Court that on 5.12.1993, the accused persons returned to Barachatti Police Station with three dead bodies and the damaged Maruti Van No. BR-14b/7407 and this fact is also corroborated by the by the evidence of PWs 58, 59 and PWs 27,28,29,31 and 32. Accused Dudh Nath Ram was the Officer in-charge of Barachatti Police Station. He immediately after arriving at the Police Station got a case registered-Barachatti P.S. Case No. 146/93 stating therein that after chasing the Maruti Van near 71 Mile Post on G.T. Road when they found the van to be stationary they challenged the occupants of the Maruti Van and when the occupants of the said Van started using at the Police personnel, the Police personnel retaliated by firing and in course of such firing 3 occupants of the Maruti Van were killed. This part of the case which could have been accepted as a defence version has not at all been established in as much as there is no iota of material to indicate that the occupants of the Maruti Van had at any point of time fired at the Police officers nor there had been any mark of violence on the Police Van which unhesitatingly point out that false defence plea had been taken by the accused persons more particularly, accused Dudh Nath Ram who was the Officer in-charge of Barachatti Police Station on the relevant date of occurrence. It is significant to notice that though the Officer in-charge accused Dudh Nath Ram is supposed to have made a written report indicating the manner in which the 3 occupants of the Maruti Van were killed in an police encounter, but such written statement or the so called FIR did not reach the higher officers of the Police Department and in fact from the evidence of PWs 58 and 64 the learned Sessions Judge came to hold that until arrival of the higher officers of the State no FIR was lodged by accused Dudh Nath Ram. On examining different seizure lists made by Dudh Nath Ram on the relevant date of occurrence and the inherent inconsistencies in those seizure lists the learned Session Judge came to the conclusion that in order to suppress the truth and to cover up the truth the seizure list was prepared later on as an after thought which indicates the guilty mind of the accused persons. In the aforesaid seizure list two country made pistols and two live cartridges were alleged to have been seized from the Maruti Van and those arms and ammunitions had been sent to Forensic Science Laboratory, Patna, for examination. The evidence of PW 34 and his reports Exhibit 16 and 16/1 clearly indicates that the cartridges found near the dead bodies of the deceased persons could not be fired from the country made pistols seized near the dead bodies and those pistols were defective. The report also further revealed that the said pistols had never been used. The aforesaid evidence clearly belies the defence theory that the occupants of the Maruti Van were speeding up by firing from their arms on the relevant date. The dead bodies of the 3 occupants of the Maruti Van were sent to the Gaya Hospital for post mortem examination and doctor PW 1 conducted the autopsy on the dead bodies of the said 3 persons. The post mortem reports are Exhibits 1, 1/1 and 1/2. The evidence of PW 1 clearly establishes the fact that the appearance * blackening of margins on the wounds on the bodies of the deceased persons is suggestive of the fact that the fire arm has been used approximately within 18 inch. The learned Session Judge, therefore, came to the conclusion that the deceased persons had been shot at from a very close range. The learned Session Judge also relied upon Exhibits 13/22, 13/23 and 13/24 which happened to be the photographs of the deceased persons and on that basis read with the evidence of doctor PW 1 came to hold that it cannot be the result of an encounter in which case there should have been some distance between both the parties but in the case in hand the distance between the parties was very close. The evidence of PWs 58 and 59 who had visited the place of occurrence on 6.12.1933 alongwith Dudh Nath Ram, Victor Fedles and Brijlala Pradsad establishes the fact that they did not find any mark of violence at a distance of 25 meters from the G.T. Road in the north side where it was alleged one dead body was found in the bush. They also did not find any mark of blood or mark of violence. The learned Session Judge analysed the evidence of PWs 58, 59 and 62 and then held that the story of encounter as alleged by the defence could not be believed. Exhibit 17/1 is the Register indicating the supply of fire arms to the accused persons Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fedles. PW 38 examined by the prosecution indicated in his evidence that the rounds of cartridges which he had supplied to the aforesaid accused police officers. Even the Register Exhibit 18 series corroborates the aforesaid factum of supply of cartridges. Later on the accused persons have surrendered their arms and ammunitions together with empty cartridges from which the learned Sessions Judge came to hold that the accused persons must be held to have utilised those cartridges in killing the 3 persons who were the occupants of Maruti Van on the relevant date occurrence. The photograph of Maruti Van BR- 14B/7407 in which the deceased persons were travelling clearly demonstrated the fact that the glasses of the said Van were broken and there were marks of firing on the Van. On the other hand, there was not an iota of damage to the vehicle in which the police officers were chasing and the learned Sessions Judge, therefore, came to the conclusion that the firing was made only by the accused persons and not from the side of the deceased persons. The learned Session Judge relying upon the evidence of PW 58 came to the conclusion that even though the Supdt. Of Police, Gaya had ordered that PW 58 would investigate into the case but Dudh Nath Ram never handed over the charge of investigation to him for quite some time. His evidence further indicated that when he searched for the Station Diary and asked about it from Munshi Shabir Ahmad, the Station Diary was not available at the Police Station and he was told that Dudh Nath Ram had taken away the same. Even the Station Diary was not available on 8.12.1993 when PW 58 wanted the same. Non availability of the Station Diary at the Police Station and the reply of Munshi Shabir Ahmad to PW 58 that the same has been taken away by the accused Dudh Nath Ram was relied upon by the learned Session Judge as an additional link in the chain of circumstances to establish the case beyond reasonable doubt and in completing the chain. The learned Session Judge also relied upon the evasive answer which the accused persons had given in their examination under Section 313 Cr. P.C. and ultimately came to hold that these police officials have brutally fired at the stationary vehicle on account of which 3 occupants of the vehicle were killed. After noticing the law on the question of circumstantial evidence and on the circumstances established in the case by the prosecution witnesses the learned Sessions Judge came to hold that there is no hesitation in mind that the accused persons committed brutal murder of 3 innocent persons who had no criminal antecedents and rather they were civilised persons of the society. The learned Session Judge, therefore, held the accused persons guilty under Section 302/34 IPC. Though accused persons stood charged under Section 379/149 but the learned Sessions Judge came to hold that the said allegations of theft of Rs. 20,000/- had not been satisfactorily proved by the prosecution and as such he acquitted the accused persons of the said charge. So far as the charge under Section 120B IPC is concerned the learned Sessions Judge came to hold that the prosecution had failed to prove said charge beyond any reasonable doubt and acquitted them of this charge. So far as the charge under Section 201 IPC is concerned on an analysis of the prosecution evidence the learned Sessions Judge came to hold that the accused Dudh Nath Ram alone is guilty of the said offence and other accused persons cannot be held guilty of those charges and as such they were acquitted of the said charges. Coming to the question of sentence the learned Sessions Judge was of the opinion that 3 innocent civilians having been killed brutally in the hands of the accused persons who are police personnel and on whose shoulder the safety of the civilians lies and who are deemed to be the protector of the society and they have killed the 3 civilians without any provocation and resistance the case should be held to be one of the rarest of rare cases in which the accused persons deserve capital punishment and accordingly directed that each of them should be hanged till they are dead.

On appeal by the accused persons and a reference having been made for confirming the sentence of death under Section 366 of the Code of Criminal Procedure, the High Court by the impugned judgment came to the conclusion that the prosecution in this case has been handicapped in adducing the evidence regarding the actual manner of occurrence and also regarding the participation of individual accused in the commission of the crime for which they have been charged, tried and convicted. But on re-appreciating evidence establishing the circumstances, the High Court agreed with the conclusion of the learned trial Judge that the prosecution has been able to establish that the accused persons brutally murdered three occupants of the Maruti Van by resorting to fire from a close range. The High Court further came to the conclusion that it appears to be the absurd proposition and it indicates that there has been good deal of fabrication and manipulation for distorting and destroying the evidence in this case from the very beginning and it further appears that the police personnel in this case were very much conscious of this fact that innocent persons have been killed and in order to save their neck, they started making preparation of their defence at that very stage. On re-appreciation of the evidence the High Court agreeing with the learned Sessions Judge held that the stand of the defence that the occupants of Maruti Van BR- 14B/7407 had opened fire at the police party necessitating opening of fire by the police party at the Maruti Van is wholly falsified. The further plea that two country-made pistols were recovered near the dead body of the deceased is also falsified from the report Ex. 16/1. Ultimately, the High Court came to the conclusion that the victims have been killed by the police in a show of fake encounter and it appears that the circumstances leading to this occurrence are most unfortunate for a civilized society and the police force is meant for protecting the law abiding citizens from anti-social elements and to come to the rescue of the citizens of onslaught from the mighty and influential persons but the role of police in this case appears to have been reversed. On a scrutiny of evidence, the High Court also came to the conclusion that it appears to be true that actually the killing had taken place in a deliberate manner because the deceased failed to fulfil their demand of money. The High Court ultimately came to the conclusion: “it is thus clear that all the six appellants in this case have participated in the commission of this ghastly and gruesome murder which was committed in a most indecent manner which was likely to shake the confidence of people in the law and order machinery of the State.” Having come to the aforesaid conclusion and going to the question of sentence the High Court was of the view that the sentence of death awarded against three accused, namely, Dudh Nath Ram, Brijala Prasad Sinha and Victor Fideles does not require any interference but so far as the sentence of death awarded against the other three accused, namely, Dinesh Singh, Deo Narayan Ram and Jaikaran Yadav are concerned, they being subordinate policemen and were acting under the order and direction of their superiors, the extreme penalty of death sentence cannot be awardee to them, and therefore, it commuted their sentence to life imprisonment. Thus by the impugned judgment of the High Court in case of 3 of the accused persons, namely, Dudh Nath Ram, Brijlal Prasad Sinha and Victor Fideles the sentence of death was confirmed and in case of other three accused persons the sentence of death was commuted to life imprisonment.

Mr. Rajinder Singh, learned senior counsel appearing for appellant Dudh Nath Ram, Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lala Prasad Sinha, Mr. V.A. Mohta, learned senior counsel appearing for appellant Victor Fideles, assailed the conviction of their respective clients, inter alia on the ground that in the absence of any direct evidence as to the occurrence at 71 Mile Post and the prosecution having relied on the circumstantial evidence, the circumstances proved cannot be held to be a conclusive nature so as to exclude every hypothesis but that of guilt and as such, the conviction under Section 302/34 is wholly unwarranted. It was further contended that the ballistic expert’s report being to the effect that the revolvers of these police officers had not been used and the post mortem report of the three deceased persons having established that death occurred on account of injuries caused by pellets which are from the rifles used by the constables, the learned Session Judge and the High Court committed serious error in convicting the police officers under Section 302/34. On the question of sentence it was contended, that even if a conviction under Section 302/34 can at all be sustained but the case cannot be held to be a rarest of rare case warranting extreme penalty of death. According to the learned senior counsel the High Court as well as the learned Session Judge have been swayed away by the fact that the case is a sensational one in the State of Bihar as three innocent citizens have been killed from the gun shots of the police officers. It the sensation and emotion of the Courts are taken out from the purview of consideration, of the evidence adduced, no aggravating circumstances have been established so as to inflict the extreme penalty of death sentence. It was also urged by the learned senior counsel that the Courts below committed error in coming to the conclusion that the police officials must have used their revolvers from the mere fact that certain cartridges have been supplied to them but the number of cartridges deposited is less than the number of cartridges supplied. According to the learned senior counsel there is not an iota of material to establish any prior planning or meeting of mind of the accused police officers and the prosecution evidence clearly establishes that since Jaikaran stated That some dacoits are fleeing away in a Maruti Van the police officials chased them and then came back with the dead bodies of three persons and, therefore, there is no material evidence to attract Section 34 even if a common intention could develop at the spur of the moment. Mr. U.R. Lalit, learned senior counsel appearing for appellant Brij Lal Prasad Sinha, in addition, to the aforesaid arguments also contended that ASI Brij Lala did not go with accused Dudh Nath Ram as has been indicated by PWs 7 and 8. He went in a private jeep which had been kept at the Police Station and the prosecution is guilty of suppressing the evidence of the said driver of the jeep. There is no evidence of any ballistic expert that the revolver of Brij Lala was used on the date of occurrence and merely for non-explanation of 9 rounds of cartridges no conclusion can be arrived at that those 9 rounds of cartridges had in fact been used at 71 Mile Post, particularly when there has been no seizure of such cartridges from the place of occurrence. According to Mr. Lalit, learned senior counsel it has no doubt been established that the dead bodies of three persons were brought to the Police Station in the jeep in which Brij Lala had gone but that by itself cannot bring home the charge under Section 302/34 as against accused Brij Lala Prasad. Mr. Lalit, learned senior counsel also contended that the examination of accused Brij Lala under Section 313 Cr. P.C. has been perfunctory and the relevant incriminating materials have not been put which has caused serious prejudice and, therefore, the conviction of accused Brij Lala Prasad under Section 302/34 is vitiated.

Mr. Mohta, learned senior counsel appearing for Victor Fideles in addition to the arguments advanced by Mr. Rajinder Singh, learned senior counsel contended that the plea of alibi raised by accused Victor ought to have been accepted, since admittedly, he had been transferred since July 1993 to Gaya and the Courts below committed error in rejecting the pleas of alibi. He also contended that the cartridges have been issued to Victor on 19.11.1992 and the cartridges deposited in Malkhana was on 30.12.1993 and any shortage of cartridges during this period of more than a year would not lead to the conclusion that the cartridges were used on the date of occurrence. According to Mr. Mohta, learned senior counsel, positive evidence of the ballistic expert being the revolver of Victor had not been used the Courts below committed error in convicting him under Section 302/34 even if it is established that he had accompanied Dudh Nath Ram from the Police Station in chasing the Maruti Van, and at any rate the award of extreme penalty of death, according to Mr. Mohta, learned senior counsel, is wholly unjustified.

Mr. Sibbal, learned senior counsel appearing for the three constables attacked the judgment of the High Court on the ground that it proceeds on mere conjectures and not on legal evidence adduced in the case. According to Mr. Sibbal, the learned senior counsel the circumstances established through prosecution evidence do not unhesitatingly point out towards the guilt of the accused persons and, therefore, the conviction of the accused appellant under Section 302/34 is unsustainable in law.

Mr. Sinha, learned senior counsel appearing for the State of Bihar, on the other hand, contended that no doubt, there is no direct evidence as to the manner in which three occupants of Maruti Van were killed and all the prosecution witnesses who were to establish the same turned hostile and does not support the prosecution case. But according to Mr. Sinha, learned senior counsel the circumstances established in the case in hand are sufficient to prove the charge beyond reasonable doubt and the entire chain of circumstances is complete, and therefore, no error has been committed in finding the accused appellants guilty of offence under Section 302/34. According to Mr. Sinha, learned senior counsel, the chain of evidence as against the accused persons is so complete that it does not leave any reasonable ground for a conclusion consistent with innocence of the accused and on the other hand, it only points out that within all human probability it is the accused persons who are the perpetrators of the crime who have killed the three innocent persons who were occupants of the Maruti Van on the fateful day. According to Mr. Sinha when the dead bodies of three innocent persons were brought to the Police Station which has been established beyond reasonable doubt by the evidence of PWs 7 and 8 and the explanation offered by accused persons that there was an encounter in which these persons have been killed has not been established at all and no other explanation is forthcoming in such a case an additional link is established in the chain of circumstances to complete the chain and, therefore, the High Court was wholly justified in recording a conviction under Section 302/34 IPC. Mr. Sinha, learned senior counsel also urged that looking at the brutality with which three innocent persons were murdered from a close range by firing at them by police officers the High Court was justified in affirming the death sentence as against three accused persons and this Court should not interfere with the said sentence of death. According to Mr. Sinha, learned senior counsel, the evidence of PWs 7 and 8 clearly establishes the fact that Jaikaran came and narrated that Some miscreants are speeding on a Maruti Van and are simultaneously firing from the said vehicle and on hearing the same all the accused persons except accused Brij Lala Prasad moved together being fully armed with their respective revolvers and rifles. The prosecution evidence also is categorical to the fact that the speeding Maruti Van was forced to stop at 71, Mile Post on account of traffic jam. The evidence of PWs 7 and 8 further indicates that the police party headed by Dudh Nath Ram returned back with three dead bodies on the private jeep in which Brij Lala Prasad had proceeded to the place of occurrence after Dudh Nath Ram and others had left. The prosecution evidence also further establishes the fact that the Maruti Van was found to be having marks of bullets which establishes the fact that the police party had fired at the Maruti Van. The Inquest Report prepared by Dudh Nath Ram at 8.00 a.m. at the Police Station Exhibits 3, 3/1 and 3/2 indicates that Dudh Nath Ram knew the names of the victims and, therefore, it is not a case of unknown persons fleeing away on a Maruti Van as deposed to PWs 7 and 8. Though the prosecution evidence indicates that from the scene of offence some arms and ammunitions were recovered but the report of the Forensic Science Laboratory Exhibit 16 establishes the fact that those arms had only been implanted as those were not in a condition to be used. According to Mr. Sinha, learned senior counsel, the prosecution evidence indicating replacement of Exhibit 7 by its copy to office of CID suggests the guilty mind of accused Dudh Nath Ram. The learned senior counsel also urged that the evidence of PW 58 clearly indicates that pieces of bones and blood marks were found from the Maruti Van. Then against the Kurta and Pyjama of deceased Rajiv on being examined was found to have been shot at with copper and lead bullet as per exhibit 16/2. According to the learned senior counsel PW 38 establishes the fact that revolvers and rifles were entrusted to the accused persons and these accused persons also deposited their revolvers and rifles as well ass the cartridges and no explanation was offered for the shortage of cartridges. Mr. Sinha, learned counsel also submitted that the post mortem report exhibit 1 series as well as the evidence of PW 1 clearly establishes the fact that firing at the deceased had taken place from a very close ranges. Dudh Nath Ram, in addition, made an extra judicial confession to PW 25. Mr. Sinha also submitted that Statement recorded by Dudh Nath Ram contains an admission on his part that as there was an encounter the police party fired at the Maruti Van and ultimately three people were killed but the so called encounter is falsified by the fact that the police jeep did not have a single mark of violence. On these circumstances established by the prosecution evidence the only conclusion that can be arrived at is that the accused persons mercilessly fired at the Maruti Van in consequence of which three innocent persons were killed, and therefore, all of them could be held liable under Section 302/34 IPC. On the question of sentence Mr., Sinha, learned senior counsel submitted that three officers have been rightly awarded the death sentence and the High Court perhaps was justified in commuting the sentence of death to imprisonment for life in case of three subordinate police officers who had obeyed the commands of their superiors.

Before we examine the correctness of the rival submissions in the light of evidence adduced and the circumstances established, it would be appropriate to notice one feature in this case, namely, the examination of the accused persons under Section 313 Cr.P.C. has been highly perfunctory. In course of hearing, therefore, we had called upon the counsel appearing for the accused persons to indicate whether they would prefer the matter being remitted to the Sessions Judge for proper examination of the accused under Section 313 Cr.P.C. by bringing to their notice all the relevant incriminating material against them which the prosecution seeks to rely upon. But all the counsel appearing for different accused persons unanimously state that they would not like the matter to be remanded again in view of protraction of the litigation since they feel that no prejudice can be said to have been caused to the accused persons for such a perfunctory examination of the accused under Section 313 Cr. P.C. In view of the aforesaid State of affairs we proceed to examine the correctness of the rival submissions at the Bar.

As has been stated earlier there is no evidence to indicate the manner in which the three persons in the Maruti Van were killed. Conclusion on the same, therefore, has to be arrived at from the circumstantial evidence. In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances should be conclusive in nature all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused [See (1992) 2 SCC 300]. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decision of this court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. It is not necessary to delve into any further, on the law on the subject which has now been crystallised by several decisions of this Court. Bearing in mind the aforesaid principles let us examine the circumstances said to have been proved by the prosecution by unimpeachable evidence. Since three of the appellants have been sentenced to death by the learned Sessions Judge and said sentence had been affirmed by High Court, we thought it appropriate to examine the reliability of the prosecution evidence and the circumstances so proved by such evidence to find out whether all the links in the chain are complete or not. PWs 7 and 8 are the two Constables, who had been posted at Barachatti police station on the relevant date of occurrence. These two witnesses have been believed by the learned Sessions Judge as well as by the High Court and nothing has been pointed out to us in this Court to discard their testimony, in fact no argument has been advanced on that score. According to PW7 on the early morning of 5th December, 1993, while Dudh Nath Ram and Victor were at the police Station, Jaikaran Yadav came there and said that criminals are moving ahead firing shots. Getting this information the Officer In-charge, Dudh Nath Ram, Victor and two Constables and a Havildar went on a Maruti Van and Brij Lala later on went by a private jeep which used to remain at the police station. Further evidence of PW7 is that when these officers returned back to the police station they had brought three dead bodies in the jeep with them and they had also brought one Maruti Van by toeing. This evidence of PW7 has been fully corroborated by PW8 who was also posted at the police station on the date. On the evidence of the aforesaid two witnesses it can be safely held that the prosecution has established beyond reasonable doubt that all the police officers excluding Brij Lala Prasad on getting information from Jaikaran went together in a Maruti Van with their arms and ammunitions chasing the alleged criminals and then returned back with three dead bodies as well as another Maruti Van. The evidence of PW7 further establishes the fact that the Maruti Van which had been brought by toeing was found to be damaged and blood marks were also seen on the said vehicle. He further stated that the dead bodies brought by the police people had bullet injuries on them. The prosecution evidence clearly establishes the fact that the speeding vehicle had to stop at 71 Mile Post on account of a traffic jam and the police personnel could easily approach the said vehicle, which was immobile. It is also established beyond reasonable doubt that the vehicle in which the deceased persons were moving had several bullet marks at its body and pieces of bones and blood marks has also been found in the said vehicle as stated by PW – 58.

So fat as accused Dudh Nath Ram is concerned, he was the officer in-charge of Barachatti Police Station and he made several fabrications and manipulations which the High Court itself has found and his own statement which is Exhibit 25/1 clearly indicates that the police personnel resorted to firing when the occupants of Maruti Van started firing at them. The statement that occupants of Maruti Van started firing at the police personnel has been falsified by the fact that the police vehicle did not have a single mark of bullet on its body. Then again the two country made pistols which were supposed to have been seized from the Maruti Van by Dudh Nath Ram under Exhibit 17/1 had been sent to the ballistic expert for examination and the report of the expert Exhibit 19/2 was that it was not at all in fit condition to be used. It is further established on examination of the cartridges which had been sent to Forensic Science Laboratory supposed to have been used from the country made pistols by the occupants of the Maruti Van that those cartridges have not been fired from the country made pistols which clearly falsifies the statement of Dudh Nath Ram that occupants of Maruti Van had opened fire at the Police party which necessitated the opening of fire by the police party itself. That part of the statement of Dudh Nath thus having been falsified the further admission of Dudh Nath that police party fired at the Maruti Van remains and can be utilised as against Dudh Nath as an admission, though the other accused persons will not be bound by any such admission of Dudh Nath. Cloths seized from the Maruti Van as well as the cloths of the deceased from their person had been sen to Forensic Science Laboratory for being examined and the report Exhibit 16/2 indicates user of copper bullets and lead bullets which corroborates the statement of Dudh Nath that police party had resorted to fire at the Maruti Van. When the police personnel left the Police Station with arms in their hands and returned to the Police Station with three dead bodies, it was for them to explain under what exact circumstances three people were killed. The exact Circumstances pleaded in defence by Dudh Nath Ram to the fact that when occupants of Maruti Van started firing at the police party the police party also fired at them has been belied, as already discussed. Non-explanation of the members of the police party indicating the circumstances under which three people were killed is an additional link in the chain of circumstances completing the chain to indicate that three people were killed on account of firing by the police party. In this connection it would be appropriate to notice that the post mortem examination held by PW 1 through the post mortem reports Exhibit 1 series as well as the oral evidence of PW 1 and his findings unequivocally indicates that the police party resorted to firing at the three deceased persons from a very close range. This also runs counter to the defence case that it is an encounter in which the police personnel resorted to firing when the occupants of the Maruti Van started firing at the police personnel. In addition to all these circumstances unerringly pointing to the fact that three people were killed on account of firing from the police part, the conduct and behaviour of Dudh Nath Ram in taking away the Station Diary Book from the Police Station, which was made available only on 9.12.1993, which is also established from the evidence of PW 58 and the conclusion of the High Court that there has been a good deal of fabrication and manipulation in distorting and destroying the evidence from the very beginning goes a long way to establish the culpability of accused Dudh Nath Ram. It is true that on the circumstances proved the conclusion is irresistible that three occupants of Maruti Van were killed at 71 Mile Post on account of firing from the police personnel, but when the police personnel left the Police Station on being informed by jaikaran that miscreants are speeding up in a Maruti Van they had no intention of killing those persons. At least there is nothing in the evidence of PW 7 and 8 to indicate that the police personnel left the Police Station with the intention of killing the miscreants. The question, therefore, arises whether all the police personnel can be held guilty by taking recourse to Section 34 of the Indian Penal Code in the killing of the three occupants of the Maruti Van or only some of them can be held responsible? The liability of one person for an offence committed by another in the course of a criminal act perpetrated by several persons will arise under Section 34 of the Indian Penal Code only where such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention will, of course be difficult to get and such intention can only be inferred from the circumstances. But the existence of a common intention must be a necessary inference from the circumstances established in a given case. A common intention can only be inferred from the acts of the parties. Unless a common intention is established as a matter of necessary inference from the proved circumstances the accused persons will be liable for their individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purposes of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt that a meeting of minds and a fusion of ideas had taken place amongst difference accused and in prosecution of it the overt acts of the accused persons flowed out as if in obedience to the command of a single mind. If on the evidence there is doubt as to the involvement of a particular accused in the common intention, the benefit of the doubt should be given to the said accused person. There is no dispute with the proposition that a common intention can develop at the spur of the moment and in the case in hand in view of the evidence of PWs 7 and 8 there being no intention to kill the occupants of Maruti Van when the police personnel left the Police Station on being informed that miscreants are speeding up in a Maruti Van, such a common intention could have developed at 71 Mile Post but the question for consideration is what is the evidence in the present case to indicate that in fact such common intention had developed at 71 Mile Post and further what are the overt acts committed by some of the accused persons to rope in all the police officers, as has been stated earlier. All the accused persons excepting Brij Lala Prasad left together in a vehicle with their arms and ammunitions on being informed that some miscreants are speeding up in a Maruti Van. Dudh Nath Ram was the Station House Officer of Barachatti Police Station. The three police officers, namely, Dudh Nath Ram, Victor Fedels and Brij Lala Prasad were armed with revolvers which has been established from the entries in the Register of Arms and ammunitions maintained in the office and Exhibited as Exhibit 18 series. The other 3 constables had been supplied with rifles and after the incident those rifles had been seized. Report of the Director of Forensic Science Laboratory Exhibit 16/6 indicated that the 303 calibre rifles bearing nos. 35893, AA-0511 and 28896, which had been supplied to the three constables were in working order and can be used for effective fire arms. As a result of microscopic examination of fired shells it was concluded that the fired shells had been fired from the three rifles. So far as the three revolvers which had been supplied to the three police officers, namely, Dudh Nath Ram, Victor and Brij Lala Prasad, the report indicated that those also can be used as an effective fire arm but the sign of the firing can not be detected as barriers and chambers had clearly been cleaned after firing. The said report also indicated that the firing had been done at least 8 rounds on the Maruti Van through 303 barrel weapons in downward Direction.

From the post-mortem report it further transpires that from the dead bodies of three deceased persons missiles were recovered and on examination of those missiles in the Forensic Science Laboratory it is established that the same had been fired form 303 rifles. This fact establishes that death of three persons occurred on account of firing from 303 rifles which had been used by the three Constables but at the same time the vehicle in which the three deceased persons were moving as well as the bundles of sarees inside the vehicle on being examined was found to have been fired at by 38 Revolvers which Revolvers had been given to accused Dudh Nath Ram and accused Victor, as per the statement of PW – 38. From the aforesaid circumstances proved, the conclusion becomes irresistible that at 71 Mile Post the police party resorted to firing from a close range on the Maruti Van and its occupants which was immobile and this firing had been made not only from the rifles possessed by the three constables but also from the revolvers possessed by the police officials though factually the three persons got killed on receiving bullet shots from 303 rifles. It is also established that the cartridges supplied to accused Dudh Nath Ram and Victor and cartridges received back did not tally and there was no explanation for the shortage of such cartridges. These bundle of circumstances clearly established the fact that all the accused persons except accused Brij Lala Prasad who went together with their respective arms and ammunitions in the police vehicle though initially went to chase the miscreants who were told to have been speeding up in a Maruti Van but at 71 Mile Post finding the said Maruti Van stationary, indiscriminately started firing through their respective weapons which ultimately resulted in the killing of three persons and as such intention to finish up the occupants of the Maruti Van developed at the very place suddenly and therefore the two police officers would be equally liable as the three constables notwithstanding the fact that death occurred on account of receiving shots from 303 rifles used by the three Constables. In addition to the aforesaid clinching circumstances against the five police officials excepting accused Brij Lala Prasad, so far as Dudh Nath Ram is concerned the additional links in the chain of circumstances have been established from the fact that he had taken away the stationary entry from the police station, he had prepared seizure list which contradicts each other, he had manipulated the records and documents and he had introduced the story of encounter which has not been established. Such manipulation of the police papers and the special diary entries made by Dudh Nath Ram together with his own statement that the police party fired at the Maruti Van make out a full proof case so far as accused Dudh Nath Ram is concerned. Dudh Nath Ram was the leader of the police party being Station House Officers, he took other police official team and chased the Maruti Van and then ultimately started firing at the Maruti Van from a close range as a result of which these three people killed. From the aforesaid circumstances established by the prosecution, we have no hesitation in affirming the conviction of all the accused persons excepting accused Brij Lala Prasad under Section 302/34 I.P.C. It would be appropriate to consider the arguments of Mr. Mohta, the learned senior counsel appearing for accused Victor that the Courts below had committed error in rejecting the plea of alibi. According to Mr. Mohta, the learned senior counsel Victor Fedles had been transferred to Gaya since July 1993 and the Station Diary of the Police Station indicated that he was on duty from 8.00 a.m. to 2.00 p.m. and it is, therefore, apparent that on the date of occurrence and at that relevant point of time he was present elsewhere in the Civil Lines Police Station and, therefore, the prosecution has failed to establish that he was at Barachatti Police Station on the early morning of 5th December, 1993. When a plea of alibi is raised by an accused it is for the accused to establish the said by positive evidence. Under Section 11 of the Evidence Act collateral facts having no connection with the main fact except by way of disproving any material fact, proved or asserted can be admitted in evidence. In other words the facts proved as such which make the existence of the fact so highly improbable as to justify the inference that it never existed, but such fact has to be established by the person who takes the plea. In other words if Victor by evidence has established that he was present elsewhere at the relevant point of time when the occurrence took place then Victor cannot be held guilty of the offence. But in the present case the presence of accused Victor at Barachatti Police Station on 5.12.1993 has been stated by PWs 7,8,17,19,28,58,59, and 64. Even PW 64 the then S.P. of Gaya also stated about the presence of accused Victor at Barachatti Police Station on 5.12.1993. No attempt was made by Victor to call for and prove the Station Diary of Civil Lines Police Station dated 5.12.1993 to establish that he was present at Civil Lines Police Station on the relevant date. Though the prayer was made in course of hearing of the argument to call for the Station Diary such prayer was rightly rejected by the learned Sessions Judge. There is thus not an iota of material available on record to establish the plea of alibi of accused Victor and under such circumstances the Courts below had no other option than to reject such a plea. We are, therefore, unable to accept the submission of Mr. Mohta, learned senior counsel appearing for Victor that the plea of alibi has been illegally rejected. In our considered opinion, in the absence of any materials such a plea cannot be sustained. The question whether award of extreme penalty of death to accused Dudh Nath Ram and Victor is at all justified will be considered later.

But at this stage it will be appropriate to consider the sustainability of the conviction of accused Brij Lala Prasad under Section 302/34 I.P.C. The two star prosecution witnesses PWs 7 and 8 unequivocally indicate that Brij Lala Prasad did not accompany Dudh Nath Ram and other police officials in chasing the Maruti Van but left the police station after about half an hour by a private jeep which had been stationed at the police station.

As has been indicated earlier when the police party left the police station they had no intention to kill anybody much less the three occupants of the Maruti Van and they had left for the purpose of arresting these persons who were alleged to be miscreants/dacoits and who were state to have been speeding up in a Maruti Van by firing from the same Maruti Van. Neither the ballistic report nor the forensic Science Laboratory report indicate that the revolver that had been given to Brij Lala Prasad had at all been used at 71 Mile Post. It is of course true that when the police party came Brij Lala Prasad also came together and the three dead bodies had been brought by them. The only evidence which possibly can be said to have been established, so far as, accused Brij Lala Prasad is concerned is that there was some shortage of cartridges which had been supplied to him and no explanation had been offered by him. But merely for such shortage of 9 rounds of cartridges, which had been supplied to Brij Lala Prasad, a year before the date of occurrence, it is difficult to come to the conclusion that at 71 Mile Post, Brij Lala Prasad who left the police station half an hour after Dudh Nath Ram and others had left, had at all used his revolver and therefore from the circumstances established against Brij Lala Prasad it is difficult to hold that he also shared the common intention which developed at 71 Mile Post. Not only the prosecution evidence established the fact that he left the police station half an hour after the police party headed by Dudh Nath Ram had left chasing the Maruti van but also there is no iota of material so far as accused Brij Lala Prasad is concerned to establish any meeting of mind of said Brij Lala Prasad with the other police party who resorted to firing at 71 Mile Post. Then again the jeep with which the Brij Lala Prasad went was being driven by a private driver and he would have been the best person to indicate the role played by such Brij Lala Prasad but unfortunately the prosecution has not examined the said driver had not been examined. In the aforesaid circumstances, we entertain considerable doubt as to the involvement of accused Brij Lala Prasad in sharing the common intention of killing three persons in the Maruti Van, and therefore, in our considered opinion he is entitled to the benefit of doubt. We accordingly set aside the conviction and sentence passed against accused Brij Lala Prasad for the offence under Section 302/34 I.P.C. and direct that he be set at liberty unless required in any other case.

Coming to the question as whether for conviction under Section 302/34 I.P.C. the courts below are justified in awarding death sentence to accused Dudh Nath Ram and Victor, we find that the learned Sessions Judge as well as the High Court have not kept in view the principles enunciated by this Court in awarding of death sentence but on the other hand being swayed away by their own emotions on the ground that police officials took recourse to firing to helpless citizens. As has been discussed the death of three persons occurred not from the firing from revolvers held by Dudh Nath Ram and Victor but on account of firing from the 303 rifles held by the three Constables. It is true that the prosecution evidence establishes the fact that firing has taken place from a very close range but that by itself would not make out the case to be a rarest of rare cased justifying the extreme penalty of death. No aggravating circumstances have been indicated so far as accused Dudh Nath Ram and accused Victor are concerned to award the extreme penalty of death sentence. The judgment of the High Court starts with the expression that the case may be treated ” as one of the most sensational trials of the recent years, so far as the State of Bihar is concerned and according to the High Court the murder is a diabolical one because three innocent persons have been killed by the police officers who were supposed to be the protectors of law abiding citizens.” We are constrained to observe that the High Court has not kept in view the several decisions of this Court and has not examined the circumstances proved while considering the question of sentence but on the other hand have been swayed away with the fact that trial is a sensational one, and therefore, the officials must be awarded the extreme penalty of death. We do not find that it is a correct appreciation of the law on the subject dealing with award of death penalty, even if a conviction under Section 302/34 I.P.C. is sustained. The learned Sessions Judge also came to the conclusion that the case can be treated to be a rarest of rare cases as police officials on whose shoulders the safety of citizens lie and are being the protectors of the society are accused for killing of three civilians without any provocation and resistance. From the facts narrated and discussed in this judgment and the circumstances established through the prosecution evidence we do not find any aggravating circumstances as against Dudh Nath Ram and Victor to award death sentence against them merely because they happened to be the police officers and the constables at their comands might have resorted to fire from 303 rifles at their possession. In this view of the matter, while we uphold the conviction of accused Dudh Nath Ram and Victor under Section 302/34 I.P.C., we set aside the sentence of death awarded against them and commute the same to imprisonment for life. In the ultimate analyses, therefore, the conviction of appellant Brij Lala Prasad under Section 302/34 I.P.C. is set aside and he is acquitted of the said charge and is directed to be set at liberty forthwith unless required in any other case. Criminal appeal No. 149 of 1998 is accordingly allowed. conviction of appellant Dudh Nath Ram and appellant Victor under Section 302/34 I.P.C. is upheld but the award of death sentence against them is commuted to imprisonment for life. Criminal Appeal No. 218 of 1998 and Criminal Appeal No. 279 of 1998 are disposed of accordingly. The conviction of appellants – Dinesh Singh, Deo Narain Ram and Jaikaran Yadav under Section 302/34 I.P.C. and the sentence of imprisonment for life is upheld and Criminal Appeal Nos. 280-82 of 1998 stand dismissed.

A Case on outraging the modesty of a woman & Rape.

A Case on outraging the modesty of a woman & Rape. 
 
Supreme Court of India
Raju Pandurang Mahale vs State Of Maharashtra And Anr. on 11 February, 2004
Equivalent citations: AIR 2004 SC 1677, 2004 CriLJ 1441, JT 2004 (2) SC 425
Author: A Pasayat
Bench: D Raju, A Pasayat

JUDGMENT

Arijit Pasayat, J.

1. Appellant calls in question legality of the conviction recorded in terms of Sections 342 and 354 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) by the Trial Court, and affirmed in appeal by the impugned judgment by learned Single Judge of the Bombay High Court, Aurangabad Bench. Two appeals were disposed of by a common judgment. Criminal Appeal No. 3 of 98 was filed by the present appellant along with one Pankaj, while the connected Criminal Appeal No. 50/98 was filed by Raju @ Rajesh S. Kopekar.

2. Four accused persons faced trial. The appellants before the High Court were present appellant Raju Pandurang Mahale (A-1), Gautam (A-2), Pankaj (A-3) and Rajesh S. Kopekar (A-4). A-1 to A-4 were convicted for offences punishable under Sections 376(2)(g) IPC and each of A-1, A-3 and A-4 was sentenced to suffer RI for 10 years and to pay fine of Rs. 500/- with default stipulation; but Gautam (A-2) was awarded 2 years RI. Additionally, A-1, A-2 and A-4 were found guilty for offences punishable under Sections 342 read with Section 34 IPC. Gautam (A-2) did not prefer any appeal questioning his conviction. A-3 alone was convicted for offence punishable under Section 292 IPC, while A-4 was convicted for offence punishable under Section 323 IPC. A-1, A-3 and A-4 were convicted for offences punishable under Sections 354 read withe Section 34 IPC. For offences relatable to Section 342 read with Section 34 IPC, six months RI and for the offence punishable under Section 354 IPC one year custodial sentence was imposed.

3. The High Court by the impugned judgment set aside the conviction and sentences of A-1 and A-3 for the offences punishable under Section 376(2)(g). So far as the appeal filed by A-4 is concerned, he was convicted for the offence punishable under Section 376 IPC, though his conviction in terms of Section 376(2)(g) was set aside. The conviction of A-1 and A-2 and A-4 for the offences punishable under Sections 342 read with Section 34 IPC, and the conviction of A-1, A-3 and A-4 for the offences punishable under Section 354 read with Section 34 IPC was also maintained with the sentence imposed. Conviction of A-4 in terms of Section 323 IPC was maintained. In essence so far as the appellant is concerned, his conviction for the offence punishable under Section 342 read with Section 34 IPC and Section 354 read with Section 34 IPC; was maintained as noted above.

4. Prosecution version as unfolded during trial is as follows:

The alleged occurrence took place on 12^th and 13^th January, 1996. Husband of the prosecutrix (PW-5), at the relevant time, was undergoing imprisonment for life after his conviction in a murder case. The prosecutrix, along with a daughter of two years age, was residing with her sister (PW-6). Accused No. 4 – Raju @ Rajesh s/o Sudakar Kopekar and accused No. 1 – Raju s/o Pandurang Mahale were friends of the husband of prosecutrix. It was for this reason that the prosecutrix was known to them. Both these accused persons were on visiting terms with the prosecutrix and her husband used to go to their house. Raju @ Rajesh S. Kopekar (accused No. 4) was working in Railways and was required to go out of station sometimes. The prosecutrix, on request, by him, used to stay with his wife during his absence in connection with his duties.

5. The incident occurred during the midnight of 12.1.1996 and 13.1.1996. At about 9.30 p.m. of 12.1.1996, appellant Raju Pandurang Mahale came to the house of the prosecutrix and told her that Raju @ Rajesh S. Kopekar (accused No. 4) had gone for night duty, and that his wife was alone at home. She was also told that wife of Raju (A-4) had called her to stay with her. The prosecutrix was reluctant to go to the house of Raju (A-4). She, however, relented on persistence of appellant Raju (A-1). She agreed to go, also for the reason that earlier, appellant Raju had taken her daughter and she had been left at the house of Raju @ Rajesh S. Kopekar (A-4) by appellant Raju.

6. On reaching the house of Raju @ Rajesh S. Kopekar (A-4), the prosecutrix found her daughter sleeping on a cot in the house. She, however, did not find the wife of Raju @ Rajesh S. Kopekar (A-4) at home. On the contrary, Raju @ Rajesh S. Kopekar (A-4), who was reported to have gone on duty, was very much present there. On questioning by prosecutrix, as to why she had been called by sending misleading information, Raju @ Rajesh S. Kopekar (A-4) stated that he had wanted her to come to his house for company. Gautam Suresh Shejwal (A-2), a friend of Raju @ Rajesh S. Kopekar (A-4) was also sitting in the house. He went outside the house and closed the door from outside, forcing the prosecutrix to remain in the house with Raju @ Rajesh S. Kopekar (A-4) along with appellant Raju s/o Pandurang Mahale and her two years old daughter who was sleeping on the cot. Appellant Raju s/o Pandurang Mahale brought liquor bottle and liquor was consumed by him and Raju @ Rajesh S. Kopekar (A-4). Thereafter, both these accused persons assaulted the prosecutrix and forced her to consume liquor. Soon she experienced giddiness and lost her balance. She was raped, thereafter, by Raju @ Rajesh S. Kopekar (A-4). When the prosecutrix regained consciousness, she found Raju @ Rajesh S. Kopekar (A-4) was lying on her person and Pankaj Ganpat Avhad (A-3) was in the room. She alleged that Pankaj Ganpat Avhad had taken her nude photographs. In the morning, the prosecutrix was threatened not to disclose the incident to anybody and was asked to go home. The prosecutrix went to her sister’s house and narrated incident to her sister (PW-6). Thereafter, they went to the police station and lodged the report. Investigation was undertaken and charge sheet filed.

7. The Trial Court and the High Court accepted the evidence of the victim prosecutrix to be cogent and taking note of the additional factors brought on record made the conviction and awarded the sentence as aforenoted.

8. In support of the appeal, learned counsel for the appellant submitted that the offences under Section 342 and Section 354 IPC were not made out, so far as he is concerned. It was submitted that the role attributed to the appellant does not in any manner establish existence of ingredients necessary to constitute offence punishable under Sections 342 and 354 IPC. He pointed out that the locking of the door from outside according to prosecution was done by A-2 in the house of A-4. The appellant had not poured liquor to the mouth of the prosecutrix as victim herself said that she was forcibly made to drink liquor by A-4. The High Court proceeded on the basis, as if, the appellant and A-4 forced her to take liquor.

9. In response, learned counsel for the State submitted that evidence has been analysed by both the Trial Court and the High Court in great detail. The role attributed to the appellant by the victim by the victim is very clear and in any event Section 34 was pressed into service to show that he shared the common intention regarding commission of the alleged offences. That being so, the conviction and the sentence as awarded do not need any interference.

10. The evidence on record clearly establishes that the appellant brought the victim to the house of A-4 on false pretext and made it compulsory for her to go by earlier taking away her daughter to the house of A-4. She was confined with A-4 and the appellant,when room was locked from outside by A-2. It was the appellant who brought the liquor which the victim was made to drink. She was forcibly disrobed by A-4 in the presence of the appellant. Thereafter A-4 raped her and A-2 took her nude photographs while she was being sexually ravished by A-4. Section 342 provides the punishment for wrongful confinement. It is established by the evidence on record that the victim was taken to A-4′s place by the appellant in the night of date of occurrence and she was able to come out of the confinement on the next day. Wrongful confinement is defined in Section 340. As observed by this Court Shyam Lal Sharma and Anr. v. The State of Madhya Pradesh , where a person is wrongfully restrained in such a manner as to prevent that person from proceeding beyond certain circumscribed limits, he is wrongfully confined within the meaning of this Section. The essential ingredients of the offence “wrongful confinement” are that the accused should have wrongfully confined the complainant and such restraint was to prevent the complainant from proceeding beyond certain circumscribed limits beyond which he/she has a right to proceed. The factual scenario clearly establishes commission by the appellant as well of the offence punishable under Section 342 IPC.

11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.

(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.

12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows:

“Decorous in manner and conduct; not forward or lowe; Shame-fast, Scrupulously chast.”

13. Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct.” It is the reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P

817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passion upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.

14. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh a question

arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. .

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminine decency. It is further to be noted that Section 34 has been rightly pressed into service in the case to fasten guilt on the accused-appellant, for the active assistance he rendered and the role played by him, at all times sharing the common intention with A-4 and A-2 as well, till they completed effectively the crime of which the others were also found guilty.

16. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab , the

existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

17. The Section does not say “the common intention of all” nor does it say “and intention common to all”. Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between 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. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh . Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

18. Looked at from any angle the conclusions of the Trial Court and the High Court in convicting the appellant do not suffer from any infirmity to warrant interference in exercise of the powers under Article 136 of the Constitution of India, 1950. The sentences imposed by no stretch of imagination can be said to be on the higher side. On the contrary, backgrounds facts of the case show that lenient sentences were imposed. The appeal fails being without merit.

Father in law convicted u/s 202 for failure to inform the authorities as to DIL’s suicide

Comment : In this case of unnatural death of a DIL – notwithstanding failure of prosecution to bring home offences 302/306/304B against the accused – convicted the FIL u/s 202 for failure to inform the police – intentional ommission to give information having reason to believe that an offence is committed. 
 
Supreme Court of India
Bhagwan Swarup And Anr vs State Of Rajasthan on 28 August, 1991
Equivalent citations: 1991 AIR 2062, 1991 SCR (3) 820
Bench: Reddy, K Jayachandra

PETITIONER:

BHAGWAN SWARUP AND ANR.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT28/08/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 2062 1991 SCR (3) 820

1991 SCC (4) 54 JT 1991 (6) 309

1991 SCALE (2)414

ACT:

Penal Code, 1860–Sections 302, 201 and 120-B—Charges-Conviction by High Court–Modification of sentence by convicting accused no. I u/s. 202. IPC for making illegal omission to inform the authorities and ac- quitting the accused of the offences by Supreme Court u/s. 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

Supreme Court (Enlargement of General Appellate Juris- diction) Act, 1970–Section 2(a)–Appeal–Appreciation of evidence–conspiracy cannot be proved by conjectures and surmises–Absence of evidence to connect accused with the offences–Modification of sentence by convicting accused no. 1 u/s. 202, IPC. for making illegal omission to inform the authorities.

Evidence Act, 1872—Section 3–Appreciation of evi- dence-Failure of prosecution to prove guilt of accused–Conviction of accused no. 1 u/s. 202, IPC for making illegal omission to inform the authorities. Penal Code, 1860—Section 202–Ingredients to prove by prosecution indicated.

Penal Code, 1860–Sections 202, 306–Suicide–Whether offence of abatement punishable–Whether father-in-law has obligation to inform the authorities the suicide of daugh- ter-in-law.

HEADNOTE:

The appellants-father and son (A 1 and A 2)-were tried under Sections 302, 201 and 120-B I.P.C. for causing murder of the wife of A.2.

The deceased was married to A 2 in 1961. Two sons and one daughter were born to them. Their matrimonial fife was not smooth. There were frequent quarrels. It was in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in

821

mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admitted- ly A 2 was not in the house and he was at Suratgarh. On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead. Thereaf- ter A 1 informed P.W. S, the father of the deceased. The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. The investigation was taken up, held the inquest, exam- ined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2, who conducted the post-mortem, opined that the death was due to head injury and pressure in the neck region.

After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prose- cution. The accused denied the offences. A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, the neighb- out of A 1′s daughter and his grand-danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them ‘denied the allegations of the pfrosecution. The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de- ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court. The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.

The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.

822

The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.

Disposing of the appeal by making modification in the sentence, this Court,

HELD: 1. The second accused was not present in the scene-house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter’s house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. Therefore, they were not present in the house when the deceased died. The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also. Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth- er-in-law of the deceased who was not even charge-sheeted. The letter Ex.P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter. P.Ws. 4, 9 and 10 have not supported the prosecu- tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-in-law of the deceased, was not even suspected. Therefore having given anxious and careful con- sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants. [835A-E]

2. Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular- ly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit- ted to give information respecting that offence and (3) that the accused was legally bound to give that information. [836G-H]

3. A 1 was at least under an obligation to give infor- mation about the death of the deceased since the same was unnatural. From the

823

medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe ‘that such a suicidal death has occured, to give information. [835G-836A]

4. In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or at least had reason to believe that an offence had been commit- ted even if, at that stage, be thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at. that stage. [838B-D]

5. The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec- tion 202 I.P.C. [838D]

Kalidas Achamma v. The State ofA.P S.H.O. Karimnagar, I Town P.S., [1987] 2 ALT 937, Approved.

Harishchandrasing Sajjansingh Rathod and Another v. State of Gujarat, [1979] 4 SCC 502, Distinguished.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 1984.

From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983. R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants. Sushil Kumar and AruneShwar Gupta for the Respondent. The Judgment of the Court was delivered by

824

K. JAYACHANDRA REDDY, J. There are two appellants. They are father and son respectively and they figured as A 1 and A 2 before the trial court. They were tried for offences punishable’ under Sections 302, 201 and 120-B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter-in-law of A 1, the deceased in the case. They were acquitted by the trial court. The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

The deceased was married to A 2 in the year 1961. Two sons and one daughter were born to them. A 1, father of A 2, was a practising lawyer after retiring from the Government Service. The matrimonial life of the deceased and A 2 was not smooth. There were frequent quarrels. The accused lived in their own house alongwith the deceased. It is in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admittedly A 2 was not in the house and he was at Suratgarh. On ‘being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam- ined the deceased and declared her to be dead. Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de- ceased. P.W. 5 went there and enquired. A 1 told P.W. 5 that the deceased be cremated at 9 A.M. The brother of the de- ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. P.W. 22 took up the investiga- tion, held the inquest, examined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2 conducted the postmortem. He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth. He found an injury on the head. He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck. He opined that the death was due to head injury and pressure in the neck region. He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the

825

pathologist could not give opinion regarding the piece of skin and the tissues of the trachea. The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality. The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is. result of neck injury. The pressure on the left and front of the neck was apparent. After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prosecu- tion. The accused dented the offences. A 1 stated that he was away from 14.3. 1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1′s daughter, was exam- ined. He also examined his grand-daughter D.W. 2, namely the daughter of A 2 and the deceased. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them denied the allegations of the prosecution.

The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira- cy between the A 1 and A 2 for murdering the deceased. It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder. The trial court. however, severely criticised about the iII-treatment and hard behaviour of A 1 and A 2 towards the deceased. The High Court, however, took a different view. The High Court mainly relied on the evidence regarding the ill-treat- ment of the deceased by A 1 and A 2 and held that the ac- cused had strong motive. The High Court has also referred to the earlier incidents in some of the letters. The High Court accepted the medical evidence in to and reached the con- clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck. Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur- dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120-B I.P.C.

Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder

The prosecution examined 22 witnesses. P.W. 1 an Assistant 826

School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ‘ of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus- band. On 18.3.82 P.W. 1′s neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die. On that P.W. 1 and others went to the house of the deceased. They opened the room from where bad smell was coming and in that room they saw the dead body of the de- ceased which was decomposed. A 1 who was present there told them that they would cremate the dead body that night. On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to. P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased. P.W. 2 is the Doctor, who conducted the post-mortem and we shaft advert to his evidence later. P.W. 3 is the eider sister of the deceased. She only stated that she got the information about the death of the deceased. P.W.. 4 is the son of the deceased and A 2. He deposed that on 11th March, 1982 his father A 2 came with him to the bus-stand to see him off. P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her. At that time the condi- tion of the deceased was very weak and she was unhealthy. P.W. 4 also deposed that his father A 2 was to go to Surat- garh by the evening of 11.3.82. This witness was treated hostile.In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and-that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her. P.W. 4 further deposed that D.W. 2 also told the same to her grand-mother. P.W. 5 is the father of the de- ceased. He also deposed about the iII-treatment of the deceased by the accused and their demand for dowry. He further deposed that the neighbour told them that he re- ceived a telephone message from A 1 that the deceased was ‘ about to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house. Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead. ThereUpon P.W. 5 wanted to know the name of the Doctor. Thereupon A 1 told him that the deceased would be cremated. A little later P.W. 6 also came and told him that the de- ceased had died before many days and her dead body was giving rotten smell. P.W. 6 is brother of the deceased and son of P.W. 5. He also.deposed about the ill-treatment meted out to the deceased. He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of

827

the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police. The police arrived and prepared a panchnama. P.W. 7 is the neighbour of the accused. He only attested the site plan prepared by the police. P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him’ at about 5.30. P.M. and told him that his daughter-in- law namely the deceased was in serious condition. Thereupon he went to the house and saw the deceased. He examined the deceased and declared her to be dead. P.W. 9 also was exam- ined to speak about the cruelty but he was treated hostile. P.W. 10 also belongs to the same locality. He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police. P.W 11 is a photographer who took the photographs of the room and the dead body. P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in- formed P.Ws 1, 5 and 6. P.W. 13 is the cousin of the de- ceased. He also deposed about the cruelty meted out to the deceased. He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased. He was informed by A 1 that the body would be cremated. Thereupon he and P.W. 6 went and .gave a report to the police. P.Ws 14 to 21 are the formal official witnesses. Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2. The sum and substance of their evidence is that A 2 was posted as expert of plant protec- tion in Suratgarh and that leave was granted to him on 11.3.82. This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased. P.W. 22 is the Sub-inspector who investigated the case. He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem. He also speaks the seizure of some letters.

In the examination under Section 313 Cr. P.C. both the accused stated that they are innocent. A 1′s case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter’s house and he’ came to Jaipur only on 18th March, 1982 and then he was told about ‘the death of the deceased. Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead. He denied about the allegations of iii-treatment of the deceased. A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter. He also stated that he was a Gazetted Officer in Agriculture Depart- ment and he was transferred to various places and he also took the deceased with him. He further

828

stated that the deceased was sick and unhealthy and was staying at Jaipur. He also stated that his daughter used to give food to the deceased. On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased. The accused examined D .Ws 1 to 3 on their behalf. D .W. 1 is a Doctor at Jodhpur. He deposed that he knew A 1 and that he was staying in his daughter’s house in Jodhpur from 15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2 and the deceased aged about 13 years. She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her. She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness. Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food. She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982. On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong. When her grand-father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead. D.W.2 further stated that the relations between the deceased namely her mother and grand-mother were not good. In the cross-examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother. She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982. D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur. He also deposed that A 1 came to Jodhpur and stayed from 15th on- wards upto 17th March, 1982.

From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence. The dead body was found in the house of A 1 and A 2, where admittedly the deceased’ was also living but she used to confine her- self to that room where the dead body was found- She was sick and unhealthy and that she was not even coming out of the room. From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature. Some of the wit- nesses, no doubt, have deposed that the accused used to ill-treat the deceased. But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed. From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982. Therefore he was also not in the house at the time of death. There is no other evidence to

829

show that as to who could have caused the death of the deceased if it is held to be homicidal. The trial court has doubted the prosecution case that the death was homicidal. The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal. But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death. Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it ‘to be homicidal, the accused A 1 ‘and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly. However, we shall first consider the medical evidence regarding the cause of the death.

P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante-mortem. Many of them were in the shape of bruises and swellings. He found the dead body as highly decomposed and had reached an advanced stage of putrefaction. In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia. He was cross-examined at length. He admitted that since the brain was decomposed and was in semi-liquid condi- tion no injury therein could be traced. He also admitted that the swelling of the eye was not due to the injury.on the forehead. Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed. In further cross- examination he admitted that he did not make the culture of the maggots crawling on the head. He also stated that he could not say definitely whether the death in the circum- stances should’ have occurred before four days. He, however, denied the suggestion that he could not form a definite opinion. As far as this medical evidence is concerned, the trial court also considered the same at length. The learned Sessions Judge noted the details in the post-mortem certifi- cate Ex. P, 1,. There he found against the column cause of death, the Doctor has put only a question mark. It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination. After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor- tem. In nature and at any rate P.W. 2′s evidence has not proved beyond reasonable doubt that the death of the de- ceased was due to injuries causing asphyxia and that the death was homicidal. The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days’ earlier ,as shown in the post-mortem certificate. The learned Judges observed thus:

830

“It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a ‘senior Medical Jurist of the S.M.S. Hospital. According to him there was’ sub-dural hammatoma over occipital region. Bruises were found on the forehead left side …………

We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death ….. ……………. In ‘our considered opinion, all these injuries wereanti-mortem in nature.”

The learned Judges thereafter explained away the dis- crepancies between the post-mortem and the medical evidence. We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: “In substance, we are convinced that it was a case of homicidal death. We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers- ing it and holding that the finding is not based on just and proper appreciation of the evidence.”

We have also gone through the medical evidence carefully and we may observe that ‘we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona- ble. However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence. Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty. The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed. We ,have already given a brief resume of the evidence’ adduced on behalf Of the prosecution. We have ,noticed that both the accused were not in the house on the day the occur- rence is said ‘to have taken place even assuming that, the same took place on 14.3.82. the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur- rence probably took place on 15th or 16th March, 1982. It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from Jodhpur and A 2 admittedly was 831

away on official duty- The D.W. 2 also speaks to the same. The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased. In the first instance the High Court held that the accused has a strong motive to get rid of the accused. For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat- ment meted out to the deceased by the accused. The learned Judges have also relied on some letters written by the deceased. P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de- ceased. Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money. The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased. The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty. The High Court, after considering the above evidence, ob- served as under:

“Now the question is whether in these circum- stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum- stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.”

Then the learned Judges proceeded to consider the evidence of P.W. 8 and others. P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter-in-law was serious. He went and examined the de- ceased and pronounced her to be dead. P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition. Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter-in-law was at her last breathing and he must inform P.W. 5, the father. Then the High CoUrt proceeded to consider some other circum- stances which took place from 11th March onward namely A 2 leaving on official duty. The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi. Then there is reference to a letter Ex. P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned. Judges Ex. P. 15 a letter of A 1

832

on the alleged death of the deceased, written by him to his son is a significant feature. This letter is dated 18th March, 1982. In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro- nounced her dead and that on the next day they are going ahead with cremation. This letter which is on a post-card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty- conscious. We think we need not refer to the further sur- mises made by the High Court. Suffice it to say that in the rest of the entire judgment only such suspicions and sur- mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.. At one stage the learned Judges observed thus:

“The more and more we read this letter Ex. P. 15 dated 18.3.82 more and more we are con- vinced that it was a case of pre-planned, pre-determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her. It is also not Without significance that Suratgath is in Ganganagar District and a far. place from Jaipur and post-card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place. The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in- volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire. The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par- meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death. We are, there- fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy

833

to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th. These were all preplanned pre-determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin- ued later on account of various other reasons.”

We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion. We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body. Such a conclusion should be based on acceptable evidence. There is absolutely no material that the deceased was murdered on 11th March, 1982 itself. The medical evi- dence simply states that the death could have taken place 4 to 8 days prior to post-mortem. D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises. Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder. In our view there is no evidence worth men-, tioning to establish these offences. Naturally in a case of this nature, the question that arises from a layman’s point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and ‘both of them would have been under an obligation to give an explana- tion and the-absence of a plausible explanation or giving a false explanation could have been very much incriminating against them. The same coupled with other circumstances would have perhaps brought home the guilt to the accused. But the circumstances

834

are different now. A 1 and A 2 were away from the house. The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court. If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder. That being so unless conspiracy as such is established, they cannot be held liable. Then the other inmates in the house are only the mother-in-law and the children of the deceased. None of them was suspected and at any rate no one of them was charge-sheeted or tried. Therefore the question of any one of them being held responsible for the death does not arise. No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house. D.W. 2′s evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March. It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself. If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell. One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody. On the other hand D.W. 2′s evidence is different and she categorically stated that the deceased was alive upto 16th March. That appears to be natural and there is no reason whatsoever to doubt the same. As indicated supra we are inclined. to agree with the Sessions ‘Court that the medical evidence does not establish the death to be one of homicidal. At any rate there is a grave doubt in this regard. The evidence on record clearly shows that the deceased was not mentally sound. The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move- ments to the four corners of the room. 15th March, 1982 was the last day when D.W. 2 served food to the deceased. There- after she did not go inside the room and on 18th March, 1982 the dead body was discovered. The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe. In view of these and other admissions the trial court right- ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused. From the above discussion the following important points 835

emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter’s houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. There- fore they were not present in the house when the deceased died- The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the de- ceased and was very much in the house throughout ategorical- ly stated that her mother was alive on 15th March also. Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother-in-law of the deceased who was not even charge-sheeted. The letter Ex. P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec- tures and surmises drawn from the letter. P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-ln-law of the deceased, was not even suspected. Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal. The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120-B I,P.C. only and in our view the trial court rightly held that none of these charges-were proved against them.

The learned counsel for the respondent State of Rajas- than, however, submitted that the accused would atleast be liable of having committed other offences. It may be noted that the question whether they would be liable under Section 498-A or 304-B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence. However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural. Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. There- 836

fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information. In Kali- das Achamma v. The State of A.P., S.H.O. Karimnagar. I Town P.S., [1987] 2 ALT 937 it was observed as under: “In the case of every suicide abetment is inherent. Whether ultimately it is proved or not, it is a different aspect. Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr. P.C. the Police have to hold an inquest Since it is an unnatu- ral death. ‘ ‘

In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi- tion. Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead. However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated. To the same effect is the evidence of P.W. 13. P.W. 6, the brother of the deceased, on his own went and gave a report to the police. It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give. Section 202 I.P.C. is in the following .terms: “202. Intentional omission to give information of offence by person bound to inform–Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl- edge or reason to believe that some offence had been commit- ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. Shri R.K. Jain, however, relied

837

on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther v. State of Gujarat, [ 1979] 4 SCC 502 and contended that the word “Whoever” occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence- In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted..On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus:

“We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore- said ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa- tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person’ liable under this section. The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word ‘whoever’ occurring at the

opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al- leged to have committed the principal offence. This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not

appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.”

(emphasis supplied)

From these observations it is clear that there was .no evidence to show

838

that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders. In such a situation the ingredients of Section 202 can not be said to have been made out. It is in this context that the meaning of the word “whoever” has been considered. But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly commit- ted the offence’ punishable under this Section at that stage. The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced. Therefore his-case stands on a different footing. In the result the convictions and sentences awarded against A 1 and A 2 are set aside. A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months’ R.I. The appeal is disposed of ac- cordingly.

V.P.R. Appeal disposed

1

839

The Law on Common Intention S.34 Indian Penal Code

A landmark decision on the domain of S.34 as a principle of constructive criminality, where a lot many persons do a thing in furtherance of their common intention – each of them is liable – as if he had done it alone. This is based on common logic that presence & assistance of confedarates lends immoderate power and may make a person do something that he dare not do alone ! hence they also serve who stand and wait ! hence equal punishment for all.
 
Prior to imposing liability for an offence by aid of S.34 – The Basic test is :-
i) See whether common intention formed ? when different people’s intention converge on a point – a meeting of minds – they decide to do it together with complimentarity of action.
 
ii) Whether any act or ommission took place ?
 
iii) Whether that act or ommission is criminal in nature ? i.e whether is it an offence in itself or something prohibited by law etc.
 
iv) Whether Active Participation by everyone ?
 
v) Whether offence is committed in furtherance of common intention of them all ? or is unconnected with it ? 
 
Supreme Court of India
Suresh And Anr vs State Of U.P on 2 March, 2001
Bench: R Sethi, B Agrawal

CASE NO.:

Appeal (crl.) 821 of 2000

Appeal (crl.) 160 of 2001

PETITIONER:

SURESH AND ANR.

Vs.

RESPONDENT:

STATE OF U.P

DATE OF JUDGMENT: 02/03/2001

BENCH:

R.P. Sethi & B.N. Agrawal

JUDGMENT:

SETHI, J. for himself and Agrawal,J.

In view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.

Section 34 of the Indian Penal Code recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre- arranged plan of the accused participating in an offence. Such a pre- concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.

Dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as “the Code”) is the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ element of participation in absence resulting in the@@ JJJJJJJJJJJ

ultimate “criminal act”. The “act” referred to in latter part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissauded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have pre-conceived result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar & Ors. v. Emperor [AIR 1919 Patna 111] held that it is only when a court with some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied.

In Barendra Kumar Ghosh vs. King Emperor [AIR 1925 PC 1] the Judicial Committee dealt with the scope of Section 34 dealing with the acts done in furtherance of the common intention, making all equally liable for the results of all the acts of others. It was observed:

“…….the words of S.34 are not to be eviscerated by reading them in this exceedingly limited sense. By S.33 a criminal act in S.34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By S.37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’. By S.38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S.34 deals with the doing of separate acts, similar of diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it. S.37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S.38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other.”

(Emphasis supplied)

Referring to the presumption arising out of Section 114 of the Evidence Act, the Privy Council further held:

“As to S.114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition; Abhi Misser v. Lachmi Narain [1900 (27) Cal.566]. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. S.114 deals with the case where there has been the crime of abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat, and the way in which it deals with such a case is this. Instead of the crime being still abetment with circumstances of aggravation, the crime becomes the very crime abetted. The section is evidentiary not punitory. Because participation de facto(as this case shows) may sometimes be obscure in detail, it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by S.114 brings the case within the ambit of S.34.

“(Emphasis supplied)

The classic case on the subject is the judgment of the Privy Council in Mahboob Shah vs. Emperor [AIR 1945 PC 118]. Referring to Section 34 prior to its amendment in 1870 wherein it was provided:

“When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

it was noticed that by amendment, the words “in furtherance of common intention of all” were inserted after the word “persons” and before the word “each” so as to make the object of Section clear. Dealing with the scope of Section, as it exists today, it was held:

“Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To provide the aid of S.34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section 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. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases it has to be inferred from this act or conduct or other relevant circumstances of the case.”

(Emphasis supplied)

A Full Bench of the Patna High Court in The King Emperor vs. Barendra Kumar Ghose [AIR 1924 Cal. 257] which was later approved by the Privy Council dealt with the scope of Section 34 in extenso and noted its effects from all possible interpretations put by various High Courts in the country and the distinguished authors on the subject. The Court did not agree with the limited construction given by Stephen,J. in Emperor v. Nirmal Kanta Roy [1914 (41) Cal.1072] and held that such an interpretation, if accepted, would lead to disastrous results. Concurring with Mookerjee,J. and giving the section wider view Richardson,J. observed:

“It appears to me that section 34 regards the act done as the united act of the immediate perpetrator and his confederates present at the time and that the language used is susceptible of that meaning. The language follows a common mode of speech. In R. v. Salmon [1880 (6) QBD 79] three men had been negligently firing at a mark. One of them – it was not known which – had unfortunately killed a boy in the rear of the mark. They were all held guilty of manslaughter. Lord Coleridge, C.J. said: -’The death resulted from the action of the three and they are all liable’. Stephen,J. said:- ‘Firing a rifle’ under such circumstances ‘is a highly dangerous act, and all are responsible; for they unite to fire at the spot in question and they all omit to take any precautions whatever to prevent danger.

Moreover, sections 34, 35 and 37 must be read together, and the use in section 35 of the phrase ‘each of such persons who joins in the act’ and in section 37 of the phrase, ‘doing any one of those acts, either singly or jointly with any other person’ indicates the true meaning of section 34. So section 38 speaks of ‘several persons engaged or concerned in a criminal act’. The different mode of expression may be puzzling but the sections must, I think, be construed as enunciating a consistent principle of liability. Otherwise the result would be chaotic.

To put it differently, an act is done by several persons when all are principals in the doing of it, and it is immaterial whether they are principals in the first degree or principals in the second degree, no distinction between the two categories being recognised.

This view of section 34 gives it an intelligible content in conformity with general notions. The opposing view involves a distinction dependent on identity or similarity of act which, if admissible at all, is wholly foreign to the law, both civil and criminal, and leads nowhere.”

Approving the judgments of the Privy Council in Barendra Kumar Ghose and Mahboob Shah’s cases (supra) a three Judge@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Bench of this Court in Pandurang & Ors. v. State of@@ JJJJJJJJJJJJJJJ

Hyderabad [AIR 1955 SC 216] held that to attract the applicability of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which 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 all. This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a pre-arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual 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. 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 or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and “incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis”. Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence.

In Shreekantiah Ramayya Munipalli & Anr. v. State of Bombay [AIR 1955 SC 287] this Court held:@@

JJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

“It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

(Emphasis supplied)

This Court again in Takaram Ganapat Pandare v. State of Maharashtra [AIR 1974 SC 514] reiterated that Section 34 lays down the rule of joint responsibility for criminal act performed by a plurality of persons and even mere distance from the scene of crime cannot exclude the culpability of the offence. “Criminal sharing, overt or covert, by active presence or by distant direction making out a certain measure of jointness in the commission of the act is the essence of Section 34″.

In a case where the deceased was murdered by one of the two accused with a sharp edged weapon at 10.30 p.m. while he was sleeping on a cot in his house while the other accused, his brother, without taking part stood by with a spear in his hand to overcome any outside interference with the attainment of the criminal act and both the accused ran away together after the murder, this Court in Lalai alias Dindoo & Anr. v. State of U.P. [AIR 1974 SC 2118] held that these facts had a sufficient bearing on the existence of a common intention to murder.

In Ramaswami Ayyangar & Ors. v. State of Tamil Nadu [AIR 1976 SC 2027] this Court declared that Section 34 is to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ be read along with preceding Section 33 which makes it clear@@ JJJJJJJJJJJJJJJJJJ

that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, it is essential that in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section. In Ramaswami’s case (supra) it was contended that A2 could not be held vicariously liable with the aid of Section 34 for the act of other accused on the grounds: firstly he did not physically participate in the fatal beating administered by co-accused to the deceased and thus the “criminal act” of murder was not done by all the accused within the contemplation of Section 34; and secondly the prosecution had not shown that the act of A2 in beating PW was committed in furtherance of the common intention of all the three pursuant to a pre-arranged plan. Repelling such an argument this Court held that such a contention was fallacious which could not be accepted. The presence of those who in one way or the other facilitate the execution of the common design itself tantamounts to actual participation in the “criminal act”. The essence of Section 34 is simultaneously consensus of the minds of persons participating in the criminal action to bring about a particular result. Conviction of A2 under Section 302/34 of the Code in that case was upheld.

In Rambilas Singh & Ors. v. State of Bihar [AIR 1989 SC 1593] this Court held:

“It is true that in order to convict persons vicariously under S.34 or S.149 IPC, it is not necessary to prove that each and everyone of them had indulged in over acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly.” (Emphasis supplied)

Again a three Judge Bench of this Court in State of U.P. v. Iftikhar Khan & Ors. [1973 (1) SCC 512] after relying upon the host of judgments of Privy Council and this Court, held that for attracting Section 34 it is not necessary that any overt act must be done by a particular accused. The section will be attracted if it is established that the criminal act has been done by one of the accused persons in furtherance of the common intention. If this is shown, the liability for the crime may be imposed on any one of the person in the same manner as if the act was done by him alone. In that case on proof of the facts that all the four accused persons were residents of the same village and accused Nos.1 and 3 were brothers who were bitterly inimical to the deceased and accused Nos.2 and 4 were their close friends, accused Nos.3 and 4 had accompanied the other two accused who were armed with pistols; all the four came together in a body and ran away in a body after the crime coupled with no explanation being given for their presence at the scene, the Court held that the circumstances led to the necessary inference of a prior concert and pre-arrangement which proved that the “criminal act” was done by all the accused persons in furtherance of their common intention.

In Krishnan & Anr. v. State of Kerala [JT 1996 (7) SC 612] this Court even assuming that one of the appellants had@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ not caused the injury to the deceased, upheld his conviction@@ JJJJJJJJJJJJJJ

under Section 302/34 of the Penal Code holding:

“Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of a overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when “a criminal act is done by several persons in furtherance of common intention of all”. What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court’s mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur.”

In Surender Chauhan v. State of M.P. [2000 (4) SCC 110] this Court held that apart from the fact that there should be two or more accused, two factors must be established – (i) common intention and (ii) participation of the accused in the commission of the offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability. Referring to its earlier judgment this Court held:

“Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them (Ramaswami Ayyangar v. State of T.N. 1976 (3) SCC 779]. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. (Rajesh Govind Jagesha v. State of Maharashtra 1999 (8) SCC 428). To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established” (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.” For appreciating the ambit and scope of Section 34, the preceding Sections 32 and 33 have always to be kept in@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ mind. Under Section 32 acts include illegal omissions.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJ

Section 33 defines the “act” to mean as well a series of acts as a single act and the word “omission” denotes as well a series of omissions as a single omission. The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.

After referring to Mahboob Shah’s case (supra) this Court in Mohan Singh & anr. vs. State of Punjab [AIR 1963 174] observed, it is now well settled that the common intention required by Section 34 is different from the same intention or similar intention. The persons having similar intention which is not the result of pre-concerted plan cannot be held guilty for the “criminal act” with the aid of Section 34. Similarly the distinction of the words used in Section 10 of the Indian Evidence Act “in reference to their common intention” and the words used in Section 34 “in furtherance of the common intention” is significant. Whereas Section 10 of the Indian Evidence Act deals with the actions done by conspirators in reference to the common object, Section 34 of the Code deals with persons having common intention to do a criminal act.

In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors. [1995 (5) SCC 253] Brother Thomas,J. in his judgment dealt with such a proposition in paras 107 and 108.

However, in this case on facts, the prosecution has not succeeded in proving that A3 Pavitri Devi shared the common intention with the other two accused persons, one of whom was her husband and the other her brother. It has come in evidence that when the witnesses reached on the spot, they found the said accused standing on the road whereas the other accused were busy committing the crime inside the house. The exaggerated version of PW3 regarding the participation of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as PWs 1 and 2 have not supported the aforesaid version. The High Court was, therefore, justified in holding that Pavitri Devi, A3 did not share the common intention with the other accused persons. By her mere presence near the place of occurrence at or about the time of crime in the absence of other evidence, direct or circumstantial, cannot hold her guilty with the aid of Section 34. But in case the prosecution had succeeded in proving on facts of her sharing of common intention with A1 and A2, she could not be acquitted of the charge framed against her only on the ground that she had actually not done any overt act. The appeal of the State filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas,J